Shri Bijendra Pathak vs Ram Kishan Sharma

G.S. Sistani, J.—With the consent of counsel for the parties, this appeal is taken up for final hearing and disposal.

Present appeal is directed against the judgment and decree dated 21.01.2008. The respondent had filed a suit for recovery of possession, by way of ejectment and for recovery of damages/ mesne profit. Counsel for the appellant submits that the possession of the suit property has been recovered. The appellant restricts her challenge in the appeal to the Judgment which has been passed with respect to issued No. 4 which pertains to damages/mesne profits. The necessary facts which have been noticed by the learned trial court are that the respondent is the owner of property bearing No. F-137, Dilshad Garden, Delhi, comprising of ground floor and first floor built on a plot measuring approximately 233 sq. yds. The respondent is stated to have purchased this property from its previous owner one Shri Jaswant Singh on 27.6.1990 vide registered sale deed. The appellant was in possession of the first floor of the suit property comprising of one room in the front portion measuring 9''3" x 8''3" and one room in the rear portion measuring 8''9"x 8''3" with balconies. The appellant was also enjoying the common facility of one toilet and one bath room situated at the ground floor of the suit premises. The suit of the respondent for recovery of possession by way of ejectment and recovery of damages/mesne profits was decreed by the judgment and decree dated 21.1.2008. Since the appellant has restricted her challenge in the appeal with respect to issue No. 4, issue No. 4 is reproduced below:

Issue No. 4.

Whether the plaintiff is entitled for the damages/mesne profits? If yes, then at what rate and for what period? OPP.

Counsel for the appellant submits that the area in question is a commercial area and the damages/mesne profits which have been awarded by the learned trial court are far in excess. It is further stated that the respondent was awarded damages @Rs.6000/- per month which could not have been claimed.

Learned Counsel for the respondent submits that the appellant/ defendant in the suit failed to lead any evidence with respect to the quantum of mesne profits. The only ground which is sought to be raised in the present appeal that the mesne profits awarded are highly in excess, in comparison to the rates prevalent to the vicinity where the property is situated. I have carefully perused the grounds of appeal. Ground C-1, pertains to issue No. 4, which reads as under:

Because otherwise also the mesne profits are highly excessive seeing the local condition of the area.

The respondent (plaintiff in the suit) had filed his affidavit by way of evidence. In addition to the affidavit filed by the respondent (Ex.P-1) in support of his contention that the appellant is liable for damages @Rs.200/- per day, the respondent also relied on a valuation report Ex.PW1/1. The respondent has also examined PW-5 Rameshwar Dayal, an architect who has prepared the valuation report Ex.PW1/1. The trial court has also considered the fact that the property is being used for commercial purposes and the appellant has himself affirmed that he was under employment of Shri Narender Pathak, the deceased son of the respondent who was running a factory on the ground floor. PW-5 has also given the estimated rent of the premises as Rs. 6000/- per month. No evidence was led by the appellant herein. In the absence of any evidence to the contrary to show that the appellant is not liable to damages/mesne profits @Rs.200/- per day, the trial court has come to the conclusion based on the evidence of the respondent and the valuation report PW1/1 as also the evidence of PW-5 Shri Rameshwar Dayal who is an architect.

In view of the aforesaid facts that there is no infirmity in the Judgment and decree passed by the trial court and in the absence of any evidence on record to the contrary to the evidence led by the respondent, there are no grounds made out to entertain this appeal The same is accordingly dismissed.