SMT. KHEMA, Vs. SHEIKH MOHD. AARIF,

JUDGEMENT

(1.) THE burning point of discussion in this second appeal is, 'whether the appellants are the tenants in the property in dispute', a plea raised by them which found no favor with two Courts below. Sheikh Mohd. Aarif, Sheikh Mohd. Adil, respondents 1 and 2 filed a suit for possession, permanent injunction and recovery for mesne profit against the appellants. Shrifudin and Prem Singh (Now respondents 3 and 4 respectively), who are stated to be their co -owners, were arrayed as defendants 4 and 5 in the original suit. Learned Civil Judge vide order dated 20.04.2004 decreed the suit for possession of one room on the ground floor of house No. 491 that is one -fourth being part of property No. 491 -494, Tokriwala, Jama Masjid, Delhi. He also decreed the suit in the sum of Rs. 3600/ - and ordered that future mesne profit @ 100/ - per month from the date of institution of the suit till the date of delivery of possession along with interest @ 4% be paid by the appellants to the respondents. The order further restrained the appellants from handing over the possession of the room in question to any person except the respondents. The first Appellate Court dismissed the appeal as well as cross -objections.

(2.) AFTER having subjected the evidence to a closet scrutiny and after having heard the counsel for the parties, I am of the considered view that this case requires further evidence, investigation and probe. It is too early to speak my piece on the contentious issues involved herewith. Some important documents have not yet seen the light of the day. For the reasons listed below, the case is remanded before the Trial Judge for reconsideration as per directions.

(3.) FIRSTLY , the appellants had moved an application dated 26th November, 2001 where following averments were made. Mother of Smt. Parwati, appellant No. 1 was the tenant and started paying rent to Hazi Gulam Mehboob. After her death, appellant No. 1 started paying rent to Hazi Gulam Mehboob, who, disappeared out of blue and did not appear to take rent. The rent receipts issued by Hazi Gulam Mehboob have been placed on the record and were duly marked in evidence. Appellants received property tax bill dated 30.8.2001 issued by M.C.D., City Zone, 53, Jawahar Lal Nehru Marg, New Delhi, for property tax arrears in the sum of Rs. 11,587/ -, which was issued in the name of Hazi Gulam Mehboob. It was prayed that the concerned clerk of M.C.D., City Zone be summoned as defense witness along with records of the suit property and the above said property tax bill, in order to enable the appellants to prove that the suit property remained in the name of Hazi Gulam Mehboob. Learned Trial Court dismissed the said application vide its order dated 15.04.2002 on the grounds that the name of Hazi Gulam Mehboob finds no place in the written statement, the appellants did not mention that Hazi Gulam Mehboob was the owner of suit property in question at any time, the appellants did not file the list of witnesses, the above said matter is not covered within the issues framed and the appellants could not be allowed to fill up the lacunas at this belated stage. The first Appellate Court while dealing with this issue came to the conclusion that the order dated 15.4.2002 passed by the learned Trial Court was not challenged before the superior court. Consequently, it has attained finality.