Delhi High Court
Sh. Upender Sharma vs Sh. Mangat Ram on 27 April, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on : 27.04.2011
+ R.S.A.No. 63/2007 & CM Nos. 3218-19/2007 & 1190/2008
SH. UPENDER SHARMA ...........Appellant
Through: Mr. H.S. Gautam, Advocate.
Versus
SH. MANGAT RAM .......Respondent
Through: None.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. This appeal has impugned the judgment and decree dated
06.01.2007 which had endorsed the finding of the trial judge
dated 26.05.2005 whereby the suit filed by the plaintiff Upender
Sharma seeking possession of the suit property i.e. property
bearing no. 33, Gali No. 3&4, North Chhajju Pur, Delhi
(hereinafter referred to as 'suit property') along with the mesne
profits had been decreed in favour of the plaintiff.
2. Plaintiff claimed himself to be the registered owner of the
aforenoted suit property. The document of purchase was dated
15.06.1974. He had constructed the boundary wall, one room with
ACC, one latrine, ACC shades and installed a hand pump.
Defendant along with his servant was asked to look after the
property as also the buffaloes of the plaintiff. Plaintiff had been
running milk dairy at 1/4885, Balbir Nagar Extension, Sahara,
Delhi up to the period of 1995-96; in this period, the defendant at
the request of the plaintiff was living in this said suit property.
Thereafter, the defendant left the job of the plaintiff and started
his own work; he requested the plaintiff to allow him to continue
living in the suit property till he could arrange alternative
accommodation for himself. Plaintiff allowed him to do so.
Thereafter, on the need of the plaintiff, the plaintiff requested the
defendant to vacate the suit property. This was in 1997. The
defendant agreed to vacate the property after the Holi festival in
1998. Thereafter, with malafide intentions, defendant filed suit
no. 81/98 for permanent injunction seeking restraint against the
plaintiff from interfering in his peaceful possession. It was further
averred that the defendant had also been conspiring to sell the
suit property. Suit was accordingly filed.
3. Defendant contested the suit; it was stated that the suit
property had been let out to the defendant on the monthly rent of
Rs. 100/- in 1980; plaintiff had sold this property to the defendant
in the year 1989 and had received full and final consideration of
Rs. 40,000/-. Relevant documents to the said effect had also been
executed. Further, defense had been that the plaintiff had
approached the defendant on 06.02.98 and requested him that he
required the sale documents of the suit property for urgent
information; in good faith, the defendant had handed over the said
papers to the plaintiff; in spite of requests, the documents were
not handed back to the plaintiff by the defendant; complaint was
also lodged before the police on 09.02.98; thereafter, the
defendant was constrained to file the suit for permanent
injunction. Plaintiff denied the contents of written statement and
reiterated the contents of the plaint.
4. On the pleadings of the parties, following issues were
framed:-
i. Whether the defendant was servant of the
respondent upto the period 1995-96 as alleged?
OPP.
ii. Whether the defendant purchase the property
in dispute from the plaintiff in May 1989 as alleged
in the W.S.? OPD.
iii. Whether the plaintiff is entitled to possession
of the suit premises? OPP.
iv. Whether the plaintiff is entitled for mesne
profits, if so at what rate and for which period? OPP.
v. Whether the plaintiff is entitled to injunction
as prayed for? OPP.
iv. Relief.
5. Four witnesses were examined on behalf of the plaintiff and
7 DW's had appeared in the witness box on behalf of the
defendants. All the issues were decided in favour of the plaintiff.
It was held that the plaintiff was entitled to recover the suit
property. Mesne profits at the rate of `1,500/- per month were
also awarded.
6 This was endorsed in the first appeal.
7 This is a second appeal and it had been admitted and on
23.07.2008, the following substantial question of law had been
formulated. It inter alia reads as follows:-
"Whether the trial court and the first appellate
court were justified in ignoring the evidence led by
the respondent (plaintiff before the court of Civil
Judge) and to grant mesne profits over and above
the evidence so led?
8. On behalf of the appellant, it has been argued that even
while admitting the appeal and framing the substantial question of
law, the Court had noted that the witness of the plaintiff himself
namely PW-4 had admitted that the rent of the suit property in
2003 would be approximately `800/- per month and about five
years ago it would be about `200/- per month; the court below
having awarded mesne profits @ `1,500/- per month is clearly a
perversity which calls for an interference.
9 None has appeared for the respondent.
10 The suit property has since been vacated; it was vacated on
24.08.2005. The submission of learned counsel for the appellant
carries force. Even as per the plaint, the defendant was his
servant and he was asked to look after the buffaloes of the
plaintiff. The plaintiff had appeared in the witness box as PW-1.
He had admitted that he was paying `900/- as salary to the
defendant; this was in 1993. Version of PW-2 is also to the same
effect; he has also stated that the defendant was employed at a
salary of about `900/- in 1993. PW-4 had deposed that the
defendant was employed at a salary of `500/- about 10 years ago;
this witness had come into the witness box in May, 2003 meaning
thereby that in the year 1993, the salary of the defendant was
about `500/-. This witness has also stated that the rate of rent of
similar accommodations in the locality would be about `800/- in
2003; about five years ago (i.e. in 1998) the rent would be about
`200/- per month.
11 The suit property is admittedly 100 square yards of space
comprising of a boundary wall wherein one room with ACC Shed
and one latrine has been constructed beside one hand pump.
From this evidence, it is clear that the defendant was an employee
of the plaintiff; his salary was `900/- per month; this was in the
year 1993. The award of damages @ ` 1,500/- per month, in view
of the evidence on record is clearly a perverse finding. The first
appellate court had endorsed the finding of the trial Judge without
appreciating this factum where the witness of the plaintiff himself
had admitted that in 2003 the rate of rent of this property is
`800/- per month and five years ago i.e. in 1998 the rent would be
about `200/- per month; the award of damages @ `1,500/- per
month in this scenario does amount to a perversity.
12 It is a settled proposition that where perversity is noted by
the Court, interference is called for even in a second appeal. The
impugned judgment has returned a finding which is totally
contrary to the evidence on record. It was for the plaintiff to have
asserted and proved the amount of damages to which he was
entitled. His proof was that `800/- per month was the prevailing
rent in 2003 and about `200/- in the year 1998. The plaintiff had
by way of impugned judgment been directed to pay the mesne
profits w.e.f. April, 1999.
13 In view of the evidence on record, damages awarded @
`800/- per month would be the correct figure. Damages are
accordingly awarded at the aforenoted rate of `800/- per month
i.e. w.e.f. June, 1999 up to the date of vacation of the suit
property.
14 Substantial question of law is answered accordingly. Appeal
as also pending applications are disposed of in the above terms.
INDERMEET KAUR, J.
APRIL 27, 2011
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