FAKRUDDIN Vs. MOHD NABI

JUDGEMENT

(1.) The respondent No.1/plaintiff filed a civil suit bearing No.134/2010 on 03.06.1988 for recovery of possession of terrace on the second floor of property bearing No.747, Phatak Dhobian, Farsh Khana, Delhi-110006 and also for mesne profits against the petitioners. The respondent No.1 claim to be an owner of said portion.

(2.) It was alleged petitioner No.4-Mohammad Deen was a tenant in respect of two rooms, one kothari, courtyard, kitchen, bathroom, latrine at the first floor and barsati on the second floor. The terrace is separate to barsati on the second floor. The respondent No.1/ plaintiff alleges to be in occupation of terrace viz a portion admeasuring 17.8 x 11 feet on second floor. It was alleged appellants No.1 & 2 and sons of Kabiruddin/deceased appellant No.3 in collusion with and/or at the instance of their father illegally and unauthorizedly occupied the terrace on the second floor since January 1986. The respondent No.1 further alleged the appellants had no right, title or interest over the terrace portion on the second floor and they need to dismantle the tin shed built over it and surrender the possession of such terrace portion and also liable to pay damages @Rs.20/- per month.

(3.) The appellants herein filed their written statement before the learned Trial Court wherein various objections were taken viz suit barred by res-judicata; no cause of action and valuation etc, but ultimately, the learned Trial Court vide the impugned judgment dated 21.11.2012 had passed a decree for possession holding the appellants had no authority to retain the disputed terrace portion since they were sub-tenants under appellant No.4/Mohammad Deen qua the other portion. Reference was also made to various other litigations between the parties which settled the facts, the appellants being sub-tenants of appellant No.4/Mohammad Deen for a portion other than terrace on second floor.