Sh. Hamid Ali vs Sh. Noor Ahmed
2011 Latest Caselaw 2891 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Date of Judgment: 30.05.2011

+                    R.S.A.No. 88/2011

SH. HAMID ALI
(SINCE DECEASED THROUGH HIS LEGAL HEIRS)

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

                   Versus

SH. NOOR AHMED
(SINCE DECEASED THROUGH HIS LEGAL HEIRS)

                                                 ..........Respondents

                  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

09.02.2011 which had endorsed the finding of the trial judge

dated 16.10.1996 whereby the suit filed by the plaintiff Sh. Noor

Ahmed seeking possession and recovery of mesne profits of the

suit property i.e. ground floor of property No. 1056, Phatak Ram

Kishan Dass, Chitli Qabar, Delhi had been decreed.

2. Case of the plaintiff was that he was running a factory in

partnership with one Sunder Lal in the aforenoted premises.

Defendant was an employee and a worker with the plaintiff. In

1978, defendant approached the plaintiff and requested for grant

of permission to run a factory in the first room of the aforenoted

premises on a monthly license fee of Rs. 300/-. This was exclusive

of electricity charges. Thereafter, defendant created problems; in

spite of notice dated 18.07.1988 terminating the license of the

defendant asking him to vacate the suit property, he did not

adhere to it. Present suit was filed.

3. In the written statement of the defendant it was stated that

he was the tenant and in exclusive possession of the suit property

since the last 12 years. It was stated that he had taken on rent a

portion in the ground floor at monthly rent of Rs. 300/- .

4. On the pleadings of the parties, following issues were

framed:-

i. Whether the suit has been properly valued for the

purpose of court fees and jurisdiction? OPP

ii. Whether the defendant is a tenant in the W.S., if so its

effect? OPD

iii. Whether the suit is within time? OPP

iv. Whether the plaintiff is entitled to relief of possession

of the suit property and also mesne profits? OPP

v. Relief?

5. Oral and documentary evidence was led.

6. The trial judge had noted the documentary evidence

produced by the plaintiff which was the license granted by the

Municipal Corporation of Delhi in his favour which is Ex. PW 3/5;

license fees paid by the plaintiff to the MCD is Ex. PW 3/6 to PW

3/8; site plan of the property was proved as Ex. PW 3 / 4; legal

notice was exhibited as Ex. PW 3/1. The defendant per contra

adduced oral evidence; he had no documentary evidence to

substantiate his submission that he was a tenant. Even today, this

fact is not disputed; submission being that this was an oral

tenancy which has been created by the plaintiff in his favour.

7. This is a second appeal which is yet at the stage of

admission. Substantial question of laws have been formulated at

page 15 of the body of the appeal.

8. Learned counsel for the appellant has placed reliance upon

the judgments reported in AIR 1993 Allahabad 138 Ajab Singh Vs.

Shital Puri as also upon AIR 1978 Punjab and Haryana 204 Kidar

Nath Vs. Swami Parshad and Ors. Reliance has also been placed

upon the judgment reported in AIR 2004 Supreme Court 1591

Achintya Kumar Saha Vs. M/s Nanee Printers and Ors to support

his submission that a substantial question of law does arises on

the interpretation as to whether the relationship between the

parties had, in fact, created as lease or a licensee. There is no

dispute to this proposition. None of the aforenoted judgments

which have been relied upon by the learned counsel for the

appellant, however, co-relate to the facts of the instant case. Each

case is distinct on its own factual matrix. Even otherwise, there is

no dispute to the proposition that where evidence has been

ignored and the controversy has not been adjudicated upon by the

first appellate court, a substantial question of law does arise and a

second appeal is maintainable.

9. In this context, the finding of the two courts below returned

on issue no. 2 is relevant.

Issue no. 2 reads as:-

"Whether the defendant is a tenant in the W.S., if so its

effect? OPD"

10. Trial judge has noted as under:-

"Finding on Issue No. 2.

Onus to prove this issue was on the Defendant whose

case is that he is tenant in respect of property in suit since 1962.

Defendant has stated in his statement that he was having the

exclusive possession and lock of the key of premises was also with

the Defendant. As against this, Plaintiff has stated that lock of the

premises was with the Plaintiff and he used to open the same. It

is stated by the witnesses of the Defendant DW-1 that they

vacated the premises in 1966 and thereafter Defendant was

inducted in the premises. However, in his statement Defendant

has stated that he is in premises since 1962. No rent receipt has

been proved on record. Plaintiff has proved on record the licence

fee paid by the Plaintiff in respect of property in suit to the

Municipal Corporation of Delhi which is Ex. PW 3/7 and Ex. PW

3/8. In view of the fact that Defendant has failed to proved any

rent note or rent agreement on record and in view of the fact that

Defendant has failed to establish that he was exclusively in

possession and operating the lock and key of premises in suit and

in view of the licence fee being paid by the Plaintiff to the

Municipal Corporation of Delhi could not be rebutted in the cross

examination. Defendant has failed to prove on balance of

probabilities that they are tenant in respect of property in suit

and in view of 316 All India Rent Control Journal IX 1988 (2)

Defendant has failed to prove that they were in exclusive

possession of the property in suit and they were tenant in the

property. Two certificates from shop and Establishment

Department does not show that they were tenant in respect of

property in suit. This issue is not proved on balance of

probabilities and is decided in favour of Plaintiff and against the

Defendant."

11. Impugned finding on issue no. 2 reads as follows:-

" The onus to prove this issue was on the defendant. Ld. trial

court at the time of deciding this issue was of the view that the

case of the defendant is that he is the tenant of the suit property

since 1962 and the defendant has stated in his written statement

that he was having exclusive possession and lock and key of the

premises was also with him. Ld. trial court has observed that

witness of defendant i.e. PW-1 has stated that they have vacated

the premises in 1966 and thereafter the defendant were inducted

in the premises. Ld. court was of the view that in his statement

the defendant has stated that he is in the premises since 1962 but

no rent receipt has been proved on record and on the other hand

the plaintiff was also able to prove on record that license fees paid

by the plaintiff in respect of suit property to the MCD which area

Ex. PW 3/7 and Ex. PW 3/8. Ld. trial court has come to conclusion

that defendant has failed to prove any rent agreement on record

and further failed to establish that he is in the exclusive

possession of the suit property and were having the lock and key

of the suit premises. Ld. trial court was of the opinion that in view

of the license fees being paid by the plaintiff to the MCD and the

same could not be rebutted in the cross examination and on the

basis of balance of probabilities, defendant was failed to prove

that he is the tenant in respect of suit property and was in

exclusive possession of the property and tenant in respect of the

suit property.

I am of the view that the defendant/appellant had failed to

prove that they were the tenant in the suit premises and on the

other hand, the plaintiff was able to establish that the suit

property was given to the appellant/defendant on license and the

plaintiff was able to prove the notice of termination dt. 18.07.88

(PW 3/1) and the lease was terminated. In the present case, the

appellant has not brought any evidence on record or produced any

witness to establish that he was a tenant in the suit premises as

no rent agreement, receipt or any other document have been

proved to show that the appellant/defendant was the tenant. So, I

am of the view that pleadings is no evidence, far less proof.

Appellant has failed to set out their defence that he was tenant in

the suit premises. In view of the above said discussion, the

finding was given against the defendant/appellant. Since, the

plaintiff was able to prove that defendant was licensee and his

license was validly terminated by notice. So, I am of the opinion

that ld. trial court has rightly come to the conclusion that the

defendant was not the tenant in the suit premises and the issue

was rightly decided against the defendant."

12. In no manner can it be said that this finding is perverse. It

calls for no interference.

13. The next submission of the learned counsel for the appellant

is that the impugned judgment has failed to consider the cross

examination of PW 1 where he had, in fact, himself admitted that

the value of the suit property is more than 2 lacs; he having

valued the suit property at Rs. 5,000/- was an error. This is a

perverse finding which calls for interference. Issue no. 1 has been

framed qua this submission.

14. Averments in the plaint had been noted wherein the plaintiff

had specifically averred that the value of the suit property is Rs.

5,600/- for which the requisite court fee had been paid. The

impugned judgment had also noted that a suggestion had been

given by the learned defense counsel that the value of the suit

property is more than Rs. 2 lacs which had been denied by the

plaintiff; this part of the evidence of PW-1 does advance the case

of the defendant in any manner. No substantial question of law

has arisen.

15. Appeal is dismissed in limine.

INDERMEET KAUR, J.

MAY 30, 2011 ss