MOHD FAROOQ Vs. MUBASSARA AND ANR

JUDGEMENT

(1.) This Regular Second Appeal has been filed under Section 100 of Code of Civil Procedure, 1908 (CPC) impugning the judgment of the first appellate court dated 16.3.2013 by which the first appellate court set aside the judgment of the trial court dated 23.11.2011 which had dismissed the suit for possession and mesne profits filed by the respondents/plaintiffs. The appellate court has decreed the suit for possession and mesne profits against the appellant/defendant/tenant.

(2.) The only issue which was to be decided was as to whether the appellant/defendant was a licencee or was a tenant as contended by him. The first appellate court has referred to the fact that neither there was any rent agreement nor any rent receipt relied upon by the appellant/defendant. The first appellate court also notes conflicting defences raised by the appellant/defendant as to whether rent included electricity and water charges or not, noting that in the pleadings the appellant/defendant pleaded that rent was exclusive of other charges, however, in the evidence he took up a case that rental charges included electricity and water charges. So far as the issue of exclusive possession is concerned, the first appellate court relied upon various judgments of this Court and held that exclusive possession in the facts of the present case is not such to hold that tenancy rights existed in favour of the appellant/plaintiff. The relevant observations of the first appellate court are contained in paras 12 to 17 of the impugned judgment and which read as under:-

(3.) In view of the above, no substantial question of law arises because the appellant/defendant has rightly been held not to be a tenant of the suit premises and that he was only a licencee. Appeal is therefore dismissed, leaving the parties to bear their own costs.