Salamatullah & Ors. v. Kifayatullah & Ors.

(1) Whether reporters of local paper may be allowed to see the judgment?. (2) To be referred to the reporter or not? ' (3) Whether thejudgmentshould be reported in the Digest ?

JUDGMENT

ARUNA SURESH. J. (Oral) RSA 146/2009

1. Partieswere calledto be presentin person for a limited purpose of settlement of their disputes. However, there is no possibility of comprornise. On 19"^ November, 2009, learned RSA No. 146/2009. P^ge 1 of 4 2009:DHC:10158 counsel for the appellants had submitted that dispute between the parties only relate to conversion of toilet by the appellants in accordance with the directives of MCD. While noting down that appeal does not make out any ground for formulation of substantial question of law, notice was issued to the other party only for a limited purpose of settlement.

2. Respondents filed a suit for mandatory and permanent injunction against the appellant on the basis of his having obtained ownership rights in H.No. 1327, Pahari Imli, Churi Walan, Delhi, which was gifted to him by previous owner Sh. Rehmat Ullah, vide Gift Deed dated 24"" May, 1980. Appellant happened to be a tenant of Sh. Rehmat Ullah in respect of two kothries, common courtyard anda latrine on ground floor of the said house. Afterthe GiftDeed, appellants became tenant of the respondents by operation of law. There are allegations against the appellants in the complaint that the appellants started digging the courtyard, demolished the latrine with mala fide intention to make additions/alterations in the tenanted premises. Appellants had taken the plea that construction was carried outby Slum Department ofMCD and inorder to remove the slum conditions, dry latrine was converted into 'B' Type water borne latrine and also improvised the drainage system and scavenging RSA No. 146/2009 conditions at their own expenses. The Trial Court dismissed the suit of the respondents vide judgment and decree dated 1^' February,

2000. The said judgment and decree was challenged by the respondents vide RCA No.28/08.

3. The First Appellate Court considered the report of the Local Commissioner and other evidence ofthe parties to come to the conclusion that findings of the lower court on issues No. 1 and 5 were not sustainable and also that respondents were entitled to permanent and mandatory injunction, as prayed. Accordingly, the FirstAppellate court reversed the order ofthe Trial Court andpassed a decree in favour of the respondents granting him the relief of mandatory as well as perpetual injunction as prayed. Trial Court observed that appellants had failed to produce the best available evidence on record by examining the official of MCD to prove that dry latrine system was converted into Type 'B' by the officials ofthe ^ MCD without charging anything from the appellants and also that the said conversion was in respect of directives issued by the MCD. The Local Commissioner noted that the entire courtyard had been dug and bricks and other construction material was laid as if the flooring was to be re-laid. He also observed that near the door, the R5A No. 146/2009 3 of 4 foundation had also been dug on two sides about '/a feet deep and about four feet each in length.

4. Learned counsel for the respondents has submitted that, besides latrine, appellants also raised otherunauthorised construction in the suit property and damaged the same.

5. The entire case of the parties is fact based and under the facts and circumstances of this case, no substantial question of law can be formulated. Even the substantial questions of law, as suggested, clearly indicate that they relate to questions of fact and theappreciation of evidence bythecourts below. It is notthe case of the appellants that findings of the First Appellate Court were perverse.

6. Hence, I find no merits in this appeal. The same is accordingly dismissed. CM No.16630/2009 (for stay)

7. With dismissal of the petition, this application has become infructuous! It is accordingly disposed of.

ARUNA SURESH, J. DECEMBER 17, 2010 sb RSA No. 146/2009 Page 4 of[4] G