Mohd Shamim Farooqi & Anr. v. Delhi Wakf Board

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest? VALMIKI J. MEHTA, J (ORAL)

1. By the present appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC), the appellants challenge the impugned judgment and decree dated 2.3.1996 whereby the suit of the respondent/plaintiff/Delhi Wakf Board was decreed and possession was granted to the respondent/plaintiff of the portion shown in red in plan Ex. P-2 situated on the second floor of Masjid Qazi Wali, Paharganj, Delhi.

2. The only issue which is the main issue in the present case is whether 2010:DHC:6246 the tenancy of the appellants included the second floor of the property. The appellant was in fact the tenant of the ground floor and first floor of the property. The relevant issues framed by the trial court in this regard are issues no.1 and 2 which read as under:- “1. Whether the defendants are tenant in the suit premises?OPD

2. Whether the rent note dated 17.4.78 creates tenancy in favour of the defendants?OPD”

3. The findings on these issues by the trial court are in paras 10 to 13 of the impugned judgment and the same read as under:-

13. The onus of proving these issues was on the defendants because the defendants were claiming the tenancy of the premises in question. In addition to Ex.P3/1A, the defendants have filed Ex.DW2/1 and Ex.DW2/1A. Ex.PW3/1A is not admissible and Ex.DW2/1 and Ex.DW2/1A duly proved that the premises in occupation of the defendants as tenant is the only portion of the mosque on ground floor and first floor and not on the second floor. The statement of DW-3 is only in support of proof of Ex.PW3/1A and same is of no consequence. In the light of the above discussion, I am of the considered opinion, that the defendants have failed to prove that portion shown in red in Ex.P-2 is in their occupation as tenant. In other words, I hold that the defendants are in unauthorised occupation of the premises situated in the above premises and shown in red in Ex.P-2 that is the portion on the second floor of the mosque Kaziwali. Accordingly, both these issues are decided in favour of the plaintiff and against the defendants.”

4. A reading of the aforesaid paragraphs show that the resolution of the Delhi Wakf Board by which tenancy was granted to the appellants did not include the second floor. The first two rent receipts also did not include the second floor in the tenanted premises. The request of the appellant for grant of tenancy of the second floor is dated 26.6.1978 though the claim of the tenancy was from 17.4.1978. The trial court has also rightly held that there is no question of manipulation in the resolution of the Delhi Wakf board which clearly shows that the tenancy was not to include the second floor portion. The trial court was therefore justified in returning a finding that the tenancy was not with respect to the second floor.

5. In any case, sitting as an Appellate Court merely because two views are possible and there is some evidence to justify the stand of the appellant, cannot mean that the other evidence which is in favour of the respondent should be overlooked. Only and only if the evidence in favour of the appellant was conclusive in nature so as to overturn the finding of the trial court, would then this court be entitled to interfere with the findings of the trial court in appeal. In every case, there are respective strengths and weaknesses in the cases for each of the parties and a civil case is to be decided on the balance of probabilities after the evidence of the parties is put in a scale. The trial court after putting the respective cases and evidence in a scale, has returned a finding that the second floor was not included in the tenancy of the appellant. This finding is definitely not perverse or illegal and therefore this court is not entitled to interfere with such findings merely because another view may be possible and which in any case is not in the facts of the present case.

6. The counsel for the appellant firstly sought to argue that an additional issue was framed by the trial Court and this issue has not been decided by the trial court. It was also urged that the trial court has wrongly recorded that no arguments were advanced by the appellant on the issue of the valuation of the suit and on which issue no.3 was framed. As regards both these arguments, the law is well settled that the judicial record and what is recorded in a judgment has to be taken by the Appellate Court as final. It is not permissible to question the factual statement in the judgment of a trial court merely by filing an affidavit before an Appellate Court. The law is that if a fact is wrongly recorded in a judgment whether of an issue framed and pressed but not decided or of an issue having been decided against being noted as not argued, then at the earliest opportunity when the matter is fresh in the mind of the court which decided the case, an application has to be moved before it bringing out the fact of the error on the part of the court as regards the recording or non-recording made in the judgment. This is the consistent view of the Supreme Court right from the judgment of State of Maharashtra Vs. Ram Das Nayak AIR 1982 SC 1239. This judgment has also thereafter been followed in other judgments of the Supreme Court namely D.P. Chadha Vs. Triyogi Narain Mishra (2001) 2 SCC 221, Shankar K. Mandal Vs. State of Bihar (2003) 9 SCC 519 and Ram Bali Vs. State of U.P. (2004) 10 SCC 598. It is therefore not permissible for the learned counsel for the appellants to argue that the judgment of the trial court does not accurately reflect the fact that the additional issue was argued or the other issue with regard to the valuation of the suit was in fact argued though recorded otherwise.