Delhi High Court
Fakruddin & Others vs Mohd Nabi & Anr on 21 August, 2019
$~21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Delivered on : 21st August, 2019
+ RSA 93/2019, CM APPL.No.20493/2019
FAKRUDDIN & OTHERS ..... Appellants
Through : Mr.R.K.Sharma, Advocate.
versus
MOHD NABI & ANR ..... Respondents
Through : Mr.Sonal Sinha, Advocate for R1.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J.
1. The respondent No.1/plaintiff filed a civil suit bearing
No.134/2010 on 03.06.1988 for recovery of possession of terrace on the
second floor of property bearing No.747, Phatak Dhobian, Farsh Khana,
Delhi-110006 and also for mesne profits against the petitioners. The
respondent No.1 claim to be an owner of said portion.
2. It was alleged petitioner No.4 - Mohammad Deen was a tenant in
respect of two rooms, one kothari, courtyard, kitchen, bathroom, latrine
at the first floor and barsati on the second floor. The terrace is separate to
barsati on the second floor. The respondent No.1/ plaintiff alleges to be
in occupation of terrace viz a portion admeasuring 17.8 x 11 feet on
second floor. It was alleged appellants No.1 & 2 and sons of
Kabiruddin/deceased appellant No.3 in collusion with and/or at the
instance of their father illegally and unauthorizedly occupied the terrace
on the second floor since January 1986. The respondent No.1 further
alleged the appellants had no right, title or interest over the terrace
portion on the second floor and they need to dismantle the tin shed built
over it and surrender the possession of such terrace portion and also
liable to pay damages @Rs.20/- per month.
3. The appellants herein filed their written statement before the
learned Trial Court wherein various objections were taken viz suit barred
by res-judicata; no cause of action and valuation etc, but ultimately, the
learned Trial Court vide the impugned judgment dated 21.11.2012 had
passed a decree for possession holding the appellants had no authority to
retain the disputed terrace portion since they were sub-tenants under
appellant No.4/Mohammad Deen qua the other portion. Reference was
also made to various other litigations between the parties which settled
the facts, the appellants being sub-tenants of appellant No.4/Mohammad
Deen for a portion other than terrace on second floor.
4. The learned Trial Court decided the issue of res-judicata in favour
of the respondents and against the appellants and even held there was no
suppression of facts. The learned Trial Court even agreed to the valuation
of the suit and thus decreed the suit in favour of the respondent and
against the appellants on the basis of evidence of both the parties.
5. A bare perusal of the learned Trial Court shows it has considered
the evidence, including the cross examination of the respective parties.
The judgment dated 21.11.2012 was unsuccessfully challenged by the
appellants before the learned First Appellate Court vide RCA
No.60806/2016 which also noted the facts and evidence on record and
held since defendant No.4 was in possession of the first floor of premises
and of the portion other than terrace on second floor and that the
appellants herein could not have forcibly occupied the terrace on the
second floor; the defendant No.4 has simply sublet the first floor and
barsati floor to the father of the appellants herein. The learned first
appellate Court agreed to the findings given by the learned Trial Court
and accordingly dismissed the first appeal.
6. Heard.
7. In this second appeal, same two objections have again been raised
a) qua the ownership of the respondents; and b) qua the suit being barred
by resjudicata. Both these issues have been aptly looked into by both the
Courts below.
8. This suit (CS No.1340/2010) is not barred by the resjudicata as
the subject premises in this suit is different than the subject premises in
the earlier suit; secondly, the respondent was never a party in such earlier
suit. Moreso, the issue of ownership was never seriously challenged by
the appellants before the Courts below and their defence was mostly
concentrated on the factum of they being legal sub-tenants in the tenancy
premises.
9. Both the learned Courts below thus gave a concurrent findings
which I would not like to interfere. The substantial questions of law
intended to be raised are qua ownership as also locus standi of plaintiff
which per se the questions relating to facts and duly considered by Courts
below. Infact no such substantial questions of law have been alleged and
are neither made out.
10. Thus there is no merit in this second appeal. It is dismissed. No
order as to costs. The pending application, if any, also stands dismissed.
YOGESH KHANNA, J.
AUGUST 21, 2019
M
