Meena Ghosh and Anr. v. Suman Pahwa and Ors.

1. No one was present for the appellants on the first call. No one is present for the appellants even on the second call. I have therefore gone through the record and am proceeding to dispose of this Regular Second Appeal against the concurrent judgments of the courts below; of the trial court dated 21.7.2011 and the first appellate court dated 3.4.2013; by which the suit of the appellants/plaintiffs for injunction was dismissed and the counter claim of the respondents/defendants for possession and mesne profits was decreed. 2014:DHC:1526

2. The facts of the case as pleaded by the appellants/plaintiffs were that plaintiffs were tenants of one Sh. Shiv Durga Prasad of the entire ground floor and second floor of G-136, New Seelampur, Delhi at a monthly rent of Rs.400/-. It was further pleaded that the husband of the plaintiff no.1/appellant no.1, and who is the plaintiff no.2/appellant no.2, was working as a driver with the defendant no.1/Sh. Ganesh Pahwa (since deceased and now represented by respondent nos.1, 2 and 3). It was further the case in the plaint that disputes arose between the parties because the title deeds of a plot of land in the ownership and possession of plaintiff no.2/appellant no.2 was kept in the possession of the defendant no.1 for safe custody but the same was not returned and instead the appellants were asked to vacate the portion in their occupation in the suit property No.G-136, New Seelampur, Delhi. Hence the subject suit for permanent and mandatory injunction was filed.

3. Defendants/respondents filed their joint written statement as per which it was pleaded that the plaintiff no.2/appellant no.2 Sh. Titu Ghosh, husband of the appellant no.1/plaintiff no.1, was working as a driver with the defendants and therefore he was permitted to live in the suit property. Sh. Titu Ghosh left the employment of the defendants and was asked to vacate the suit premises. The appellants however failed to vacate the suit property and consequently the counter claim for possession and mesne profits was filed. The defendant no.1 was said to be owner of the suit property by means of the documents being the agreement to sell, general power of attorney, Will etc dated 16.6.1981.

4. Both the Courts below have disbelieved the case set up by the appellants of their being tenants under one Sh. Shiv Durga Prasad because no such Sh. Shiv Durga Prasad was brought into the witness box and nor was his ownership of the suit property proved. On the contrary, the respondents/defendants/counter-claimants proved their case and got exhibited the documents of title as also the property tax receipts of the suit property in the name of the defendant no.1. Other documents including of the bills of water, ration card, election identity card etc were also proved by the respondents/defendants.

5. The relevant observations in this regard are contained in paras 15 and 16 of the judgment of the first appellate court and which read as under:- “15. Both parties did not produce any documents to prove that they were tenants of Sh. Durga Prasad in the suit property or that Shiv Durga Prasad had any concern with the same. The defendant no.1 examined himself as DW-1 and deposed by way of affidavit. He has deposed on the lines of the written statement and counter claim. DW-1 exhibited his documents of title that is GPA, agreement to sell, affidavit, Will and registered receipt as Ex.DW1/1 to DW1/5 respectively. He also proved his ration card and election identity card issued from the address of the suit property as DW1/6 and DW1/7. The demand notices of the MCD regarding property tax were proved as DW1/8 and DW1/9. Water connection in the suit property issued by Delhi Jal Board in the name of the defendant no.1 was proved vide bills Ex.DW1/11 and DW1/12. Property tax receipts in the name of defendant no.1 were exhibited as Ex.DW1/13 and Ex.DW1/14.

16. DW-2, the official from Sub Registrar Office Seelampur proved the registered receipt which was already exhibited as DW1/5. DW-3 is the official from the property tax department of MCD who deposed that the property was assessed to property tax in the name of Ganesh Dass Pahwa.”

6. I completely agree with the findings and conclusions of the courts below because it is clear that neither Sh. Shiv Durga Prasad was the owner of the property and nor were the appellants tenants in the suit property. The appellant no.2/plaintiff no.2 was in fact working as a driver of the defendants and he was permitted to live in the suit property as a licencee pursuant to his being employed as a driver of the defendants and there was no tenancy interest created in favour of the appellants/plaintiffs.

7. A second appeal under Section 100 CPC lies only if there arises a substantial question of law. In the present case, there arises no question of law, much less a substantial question of law inasmuch as beyond doubt the defendant no.1 is the owner of the suit property and appellants were only in permissive possession of the suit property because appellant no.2 was employed as a driver by the defendants.

8. In view of the above, there is no merit in the appeal, and the same is therefore dismissed, leaving the parties to bear their own costs.

MARCH 20, 2014 VALMIKI J. MEHTA, J. Ne