DELHI DIOCESAN TRUST ASSOCIATION Vs. JAVED MALIK

JUDGEMENT

(1.) THIS appeal impugns the judgment and decree dated 14.07.2004 of the Court of Sh. O.P. Gupta, Additional District Judge, Delhi dismissing the Suit No.130/2002 filed by the appellant. Notice of the appeal was issued and vide ex parte ad interim order dated 04.10.2004, status quo with regard to possession as on that date was directed to be maintained by the parties till the next date of hearing. The said order was made absolute vide subsequent order dated 07.02.2005 when upon completion of the service of the respondent, the appeal was admitted for hearing. The respondent no.2 Mr. Samson Fradric died during the pendency of the appeal and his legal heirs were substituted vide order dated 09.04.2008. The respondent no.3 Ms. Manju Mehra also died during the pendency of the appeal and her legal heirs were also substituted vide order dated 26 th April, 2013. The Trial Court records have been received and perused. Learned counsel for the appellant only appears. None appears for either of the respondents. However, need is not felt to await the respondents since on hearing the counsel for the appellant, no merit is found in the appeal.

(2.) THE appellant instituted the suit from which the appeal arises, for the relief of possession of property No.l752, Kucha Dakhni Rai, Darya Ganj, New Delhi and for mesne profits, pleading, i) that the subject property was given on lease to Mr. F.A. Masih, father of the defendant/ respondent no.2 Mr. Samson Fradric on a monthly rent of Rs.75/ -; ii) that the respondent no.2 continued to live illegally in the property even after the death of his father, without paying any rent therefor and rather parted with possession of part of the property to the defendant / respondent no.1 Mr. Javed Malik; that the defendant / respondent no.3 Ms. Manju Mehra also illegally occupied a part of the property; (iii) that the defendant / respondent no.2 Mr. Samson Fradric having parted with possession of major portion of the property and which he was not entitled to do, was not left with any rights in the property; (iv) that the defendants / respondents no.1 and 3 are trespassers and in any case have no right in the property. The appellant / plaintiff thus claimed possession of the entire property from the three defendants / respondents.

(3.) THOUGH the suit Court on the basis of the evidence led decided issues no.1, 3 to 6 in favour of the plaintiff and against the defendants and which findings are not challenged, but the suit Court on issue no.7 held that the case of the plaintiff being of the father of the defendant / respondent no.2 being a tenant in the property and it being not the case of the plaintiff / appellant that the tenancy of the father of the defendant / respondent no.2 had been terminated in his lifetime, the defendant / respondent no.2 on the demise of his father had inherited the tenancy rights and the rent of the property being less than Rs.3,500/ - per month, the jurisdiction of the Civil Court to order eviction of tenant therefrom was barred. The appellant / plaintiff was thus held not entitled to the relief of possession. Under issue no.2, it was held that the plaintiff had not paid the appropriate court fees on the arrears of mesne profits claimed in the suit and under issue no.8, it was held that the plaintiff having been found to be not entitled to possession, was not entitled to the relief of future mesne profits also. Accordingly, the suit was dismissed.