Mr. Mohd Shamim Farooqi & Anr. vs Delhi Wakf Board
2010 Latest Caselaw 5858 Del

 *          IN THE HIGH COURT OF DELHI AT NEW DELHI

 +                      RFA No.266/1996

 %                                             23rd December, 2010

MR. MOHD SHAMIM FAROOQI & Anr.                            ...... Appellants


                                   Through:    Mr. S.K.Bhaduri, Advocate.

                               VERSUS

 DELHI WAKF BOARD                                         .... Respondent

                                   Through:    Mr. Javed Ahmad, Mr. Eram
                                               Khan and Mr. Pradee Kumar,
                                               Advocates.
 CORAM:
 HON'BLE MR. JUSTICE VALMIKI J.MEHTA


 1.   Whether the Reporters of local papers may be
      allowed to see the judgment?
 2.   To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest?

VALMIKI J. MEHTA, J (ORAL)

1. By the present appeal under Section 96 of the Code of Civil Procedure,

1908 (CPC), the appellants challenge the impugned judgment and decree

dated 2.3.1996 whereby the suit of the respondent/plaintiff/Delhi Wakf Board

was decreed and possession was granted to the respondent/plaintiff of the

portion shown in red in plan Ex. P-2 situated on the second floor of Masjid

Qazi Wali, Paharganj, Delhi.

2. The only issue which is the main issue in the present case is whether

the tenancy of the appellants included the second floor of the property. The

appellant was in fact the tenant of the ground floor and first floor of the

property. The relevant issues framed by the trial court in this regard are

issues no.1 and 2 which read as under:-

"1. Whether the defendants are tenant in the suit premises?OPD

2. Whether the rent note dated 17.4.78 creates tenancy in favour of the defendants?OPD"

3. The findings on these issues by the trial court are in paras 10 to 13 of

the impugned judgment and the same read as under:-

"10. Both these issues are inter connected and inter linked and as such can be conveniently disposed of together. Ex.P-1 is the application in the form of request of letout the gallery, varandha and terrace of the mosque Qaziwali to the defendants. This application is signed by both the defendants. Ex.P-2 is the site plan duly admitted by the defendants, only with the variation that the same has been coloured subsequently. While the case of the plaintiff is that the green portion shown in Ex.P-2 was letout to the defendants and the portion shown in red has been unauthorisedly occupied by the defendants, which is on the second floor of this mosque. Ex.PW2/01 to Ex.PW2/04 are the letters dated 4.5.1978 and 17.5.1978 respectively by which the plaintiff give no objection to the defendants to renovate and white wash the portion of this mosque. Ex.P-4 is the copy of the resolution dated 4.4.1978. Vide resolution Ex.P-4 the defendants were rented out only the portion towards both the sides of southern and northern of the masjid on first floor and ground floor at the rate of Rs.250/- p.m. from April 1978. The defendants are not disputing this resolution, but the only allegation is that there is interpolation subsequent to the passing of the resolution which fact has not been proved by the defendants, though the onus of proving this was on the defendants. Ex.P-5 is the letter dated 26.6.1978 written by both the defendants. From a bare perusal of paras 1,2 & 5 of this letter, it becomes explicit that the portion of the second floor was never rented out or is tout to the defendants. The defendants have denied this letter but from the bare perusal of signatures on Ex.P-1 and Ex.P-5 it becomes clear that both the letters have been signed by the same person. Not only this, but the same is corroborated by the description of the property at the first and second rent receipt Ex.DW2/1 and Ex.DW 2/1A. These documents have been filed by the defendants. In the

first two rent receipts, the description of the property letout to the defendants vide Ex.P-4 are clearly mentioned. The counsel for the defendants submits that in the subsequent receipts, the description of the property is different. In my opinion, subsequent change of the description of the property in rent receipts filed by the defendants is of no consequence because in order to acquire the status as a tenant, the consent of the landlord is necessary. In the present case, the plaintiff is a statutory body and the procedure has been prescribed for letting the premises owned by this body. If somebody occupies some premises belonging to this board without following the process of law and without the consent of board of writing, then such possession can only be termed as unauthorised occupation. For acquiring the status of a tenant, the consent of the landlord is necessary and the mode differs from landlord to landlord.

11. The counsel for the defendants submits that Ex.PW3/4 dated 17.4.78 is the rent note written by the plaintiff and the defendants. As per this rent note, the portion of the second floor shown in red in Ex.P-2 is also alleged to be rented out to the defendants. This document does not inspire any faith for the reasons, FIRSTLY, it has not been duly proved.

SECONDLY, Ex.DW2/1 and Ex.DW2/1A are the admitted documents and the same finds the description of the property in occupation of the defendants except the second floor. The defendant cannot got out of these admitted documents.

THIRDLY, Ex.P-5 is a request made by the defendants on 26.6.1978 for letting out the second floor to them and same is subsequent to Ex.PW3/4.

FOURTHLY, if the second floor was letout by the plaintiffs to the defendants, then whey same description was not mentioned on Ex.DW2/1 and Ex.DW2/1A and what was the occasion to make the request to the plaintiff for letting the second floor subsequent to the execution of the rent deed. Otherwise also, Ex.PW3/4 is not admissible in evidence because of mandatory nature of section 107 of the Transfer of Property Act. Admittedly, the lease is for more than a year and same cannot be without any registered document. Thus, Ex.PW3/A is not admissible in evidence, therefore, the same cannot be looked into.

12. In cross-examination of DW-2 (defendant no.1 himself, it has been admitted that, "the rent receipts Ex.DW2/1 and Ex.DW2/1A the rented property described as gallery on the northern and southern of the first floor and portion of the ground floor. The same description of the rented property is repeated in Ex.DW2/2-A. Except the document

Ex.DW2/1A and Ex.DW2/2-A the rent note already placed on the file, I cannot produce any other document containing the description of the property letout to me".

DW-4 in his cross-examination has also admitted that he did not go through the contents of the subsequent receipt in detail because he never felt it necessary. DW-4 has further admitted that,

"It is correct that we got the Manzil Zareen ground floor and also the first floor on rent"

13. The onus of proving these issues was on the defendants because the defendants were claiming the tenancy of the premises in question. In addition to Ex.P3/1A, the defendants have filed Ex.DW2/1 and Ex.DW2/1A. Ex.PW3/1A is not admissible and Ex.DW2/1 and Ex.DW2/1A duly proved that the premises in occupation of the defendants as tenant is the only portion of the mosque on ground floor and first floor and not on the second floor. The statement of DW-3 is only in support of proof of Ex.PW3/1A and same is of no consequence. In the light of the above discussion, I am of the considered opinion, that the defendants have failed to prove that portion shown in red in Ex.P-2 is in their occupation as tenant. In other words, I hold that the defendants are in unauthorised occupation of the premises situated in the above premises and shown in red in Ex.P-2 that is the portion on the second floor of the mosque Kaziwali. Accordingly, both these issues are decided in favour of the plaintiff and against the defendants."

4. A reading of the aforesaid paragraphs show that the resolution of the

Delhi Wakf Board by which tenancy was granted to the appellants did not

include the second floor. The first two rent receipts also did not include the

second floor in the tenanted premises. The request of the appellant for grant

of tenancy of the second floor is dated 26.6.1978 though the claim of the

tenancy was from 17.4.1978. The trial court has also rightly held that there

is no question of manipulation in the resolution of the Delhi Wakf board

which clearly shows that the tenancy was not to include the second floor

portion. The trial court was therefore justified in returning a finding that the

tenancy was not with respect to the second floor.

5. In any case, sitting as an Appellate Court merely because two views

are possible and there is some evidence to justify the stand of the appellant,

cannot mean that the other evidence which is in favour of the respondent

should be overlooked. Only and only if the evidence in favour of the

appellant was conclusive in nature so as to overturn the finding of the trial

court, would then this court be entitled to interfere with the findings of the

trial court in appeal. In every case, there are respective strengths and

weaknesses in the cases for each of the parties and a civil case is to be

decided on the balance of probabilities after the evidence of the parties is

put in a scale. The trial court after putting the respective cases and

evidence in a scale, has returned a finding that the second floor was not

included in the tenancy of the appellant. This finding is definitely not

perverse or illegal and therefore this court is not entitled to interfere with

such findings merely because another view may be possible and which in

any case is not in the facts of the present case.

6. The counsel for the appellant firstly sought to argue that an additional

issue was framed by the trial Court and this issue has not been decided by

the trial court. It was also urged that the trial court has wrongly recorded

that no arguments were advanced by the appellant on the issue of the

valuation of the suit and on which issue no.3 was framed. As regards both

these arguments, the law is well settled that the judicial record and what is

recorded in a judgment has to be taken by the Appellate Court as final. It is

not permissible to question the factual statement in the judgment of a trial

court merely by filing an affidavit before an Appellate Court. The law is that

if a fact is wrongly recorded in a judgment whether of an issue framed and

pressed but not decided or of an issue having been decided against being

noted as not argued, then at the earliest opportunity when the matter is

fresh in the mind of the court which decided the case, an application has to

be moved before it bringing out the fact of the error on the part of the court

as regards the recording or non-recording made in the judgment. This is the

consistent view of the Supreme Court right from the judgment of State of

Maharashtra Vs. Ram Das Nayak AIR 1982 SC 1239. This judgment has

also thereafter been followed in other judgments of the Supreme Court

namely D.P. Chadha Vs. Triyogi Narain Mishra (2001) 2 SCC 221,

Shankar K. Mandal Vs. State of Bihar (2003) 9 SCC 519 and Ram Bali

Vs. State of U.P. (2004) 10 SCC 598.

It is therefore not permissible for the learned counsel for the appellants

to argue that the judgment of the trial court does not accurately reflect the

fact that the additional issue was argued or the other issue with regard to

the valuation of the suit was in fact argued though recorded otherwise.

7. The main stress of the learned counsel for the appellants was that the

lease deed executed between the parties described the tenancy as including

the second floor. The fact of the matter however is that this lease deed dated

17.4.1978 has admittedly not been signed by the respondent. The said

document only bears the signatures of the appellant and the witnesses.

Obviously this must be so because as per the resolution of the Wakf Board,

the second floor was not be given on tenancy and when therefore this

document would have been made out, no one would have signed on behalf

of the respondent because the same included the second floor in the tenancy

premises. The trial court also has given various reasons for not accepting

the rent note and which are contained in para 11 of the impugned judgment.

Though one may not agree with respect to the findings that the lease deed

may not be looked into because the same was not registered, however,

nothing would turn on the same because other valid reasons have been

given by the trial court so as to not give credibility to the rent note dated

17.4.1978.

8. In view of the above, the appeal being devoid of merits, is dismissed

with costs of Rs.10,000/-.

Trial court record be sent back.

C.M. No.776/1996 in RFA No.266/1996

Interim orders stand vacated.

DECEMBER 23, 2010                                  VALMIKI J. MEHTA, J
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