3 IN THE HIGH COURT OF DELHI AT NEW DELHI + RSA 146/2009 & CM No.16630/2009 DateofDecision;17"^December,2010 SALAMATULLAH&ORS. Appellants Through: Mr.S.H.Nizami, Advocate with Appellant in person. versus KIFAYATULLAH ORS. Respondents Through: Mr.S.D.Ansari, Advocate. % CORAM: HON'BLE MS. JUSTICE ARUNA SURESH ) . (1) Whether reporters of local paper may be allowed to see the judgment? . (2) To be referred to the reporter or not? ' (3) Whetherthejudgmentshouldbe 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 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified 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 formulationof 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 GiftDeed dated 24"" May, 1980. Appellanthappenedto be a tenant of Sh. Rehmat Ullah in respect of two kothries, common courtyard anda latrineon groundfloor of the said house. Afterthe GiftDeed, appellants became tenant of the respondentsby operationof law. There are allegationsagainstthe appellantsin the complaintthat the appellantsstarteddiggingthe courtyard,demolishedthe latrinewith mala fide intention to make additions/alterationsin the tenanted premises. Appellants had taken the plea that constructionwas carriedoutby SlumDepartmentofMCD and inorderto removethe slumconditions,dry latrinewas convertedinto 'B' Typewaterborne latrine and also improvised the drainage system and scavenging RSA No. 146/2009 Page 2 of 4 3 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 of the 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 permanentand mandatoryinjunction,as prayed. Accordingly,the FirstAppellatecourtreversedthe orderofthe TrialCourtandpassed a decree in favour of the respondents granting him the relief of mandatoryas well as perpetualinjunctionas prayed. Trial Court observed that appellants had failed to produce the best available evidenceon recordby examiningthe officialof MCD to provethat dry latrinesystemwas convertedinto Type 'B' by the officialsofthe ^ MCD without charginganythingfrom the appellantsand also that the said conversionwas in respectof directivesissuedby the MCD. The Local Commissioner noted that the entire courtyard had been dug and bricks and other constructionmaterial was laid as if the flooringwas to be re-laid. He also observedthat near the door, the R5A No. 146/2009 3 of 4 foundationhad 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, besideslatrine,appellantsalso raisedotherunauthorisedconstruction 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 indicatethat they relate to questionsof fact and theappreciationof evidencebythecourtsbelow. 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 of4 G