Sh. Daud Ali vs Sh. Rahissuddin
2014 Latest Caselaw 6662 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Date of Decision: December 10, 2014

+     RSA 186/2014 & CM No.12008/2014
      SH. DAUD ALI                                      ..... Appellant
                          Through:      Mr.Dharmendra Tyagi, Advocate

                          versus

      SH. RAHISSUDDIN                                      ..... Respondent
                    Through:            Ms.Protima Parihar, Advocate for
                                        R-1.
                                        Mr.Ajay Pratap Singh, Advocate
                                        for Mr.Saleem Ahmed,Standing
                                        Counsel (Crl.) with
                                        SI Satbir Singh, PS Jyoti Nagar.

      CORAM:
      HON'BLE MR. JUSTICE SUNIL GAUR

                         JUDGMENT

% (ORAL)

Appellant's suit for possession, injunction and damages etc. stands dismissed by trial court while holding that appellant has failed to prove that he was forcibly dispossessed from the suit premises. First Appellate Court has also affirmed the findings of the trial court by holding that appellant had voluntarily vacated the suit shop in December, 2009 for the expansion of Gul Masjid. Regarding forcibly removing of the goods of appellant from the shop in question, the finding returned is that appellant has not brought on record any evidence to substantiate forceful dispossession of appellant from the suit shop and forceful removal of the

RSA 186-14 Page 1 goods therefrom. However, it finds mention in the impugned judgment that appellant had made a complaint dated 14th January, 2010 to the local police regarding forceful removal of goods from his shop but he had failed to substantiate the aforesaid stand. Both the courts have found that appellant has failed to prove that he was forcibly dispossessed from the shop in question or that his goods were forcibly removed therefrom. Vide last order, the concerned SHO was directed to submit a report on appellant's complaint dated 14th January, 2010 (Annexure A-5) regarding forceful removal of his goods from the shop in question. Status report has been placed on record by the concerned SHO which reveals that appellant had peacefully handed over the possession of the shop in question to respondent and no offence of theft was made out. The Status Report of 4th December, 2014 also belies the stand of appellant of forceful removal of the goods of appellant from the shop in question.

At the hearing, it was submitted by learned counsel for appellant that appellant was tenant of respondent and his forceful dispossession from the shop in question was patently illegal and if the shop in question was required for expansion of the Gul Masjid then by due process of law appellant's tenancy ought to have been terminated by respondent. It was also submitted by learned counsel for appellant that the appellant's consent to surrender the suit shop to Gul Masjid was not in accordance with law and so the impugned judgment as well as trial court judgment deserves to be set aside and appellant's suit ought to be decreed.

Learned counsel for respondent supports the impugned judgment and submits that not only appellant but other similarly placed shopkeepers had also voluntarily surrendered their shops for expansion of

RSA 186-14 Page 2 the Gul Masjid and there was no forcible removal of the goods of appellant from the shop in question and there is no substance in this appeal.

After having heard learned counsel for parties and upon perusal of certified copy of the evidence on record, the Status Report, I find that the stand of appellant stands contradicted from the deposition of Shahanitullah (DW-3) and Shamshad (DW-4) who have categorically asserted that the appellant had handed over the vacant possession of the shop in question in the first week of December, 2009 to Gul Masjid for the expansion of the Masjid and it has also come in evidence that the vacant possession of suit shop and other shops was handed over to Intezamia Committee and thereafter the shops were demolished for the expansion of the Gul Masjid. In the considered opinion of this Court, there is no perversity in the concurrent findings returned against appellant by both the courts below. No substantial question of law arises in this second appeal.

Consequentially, this appeal and the application are dismissed while leaving the parties to bear their own costs.

                                                        (SUNIL GAUR)
                                                          JUDGE

DECEMBER 05, 2014
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RSA 186-14                                                           Page 3