JUDGMENT

Indermeet Kaur, J. (Oral)

1. This appeal has impugned the judgment and decree dated 29.01.2011 which has affirmed the findings of the trial Judge dated 28.04.2010 whereby the suit filed by the plaintiff Om Prakash seeking permanent injunction against the defendant restraining him from dispossessing him from the portion of the premises/compound of Laxmi Super Station, Laxmibai Nagar, New Delhi had been dismissed.

2. The plaintiff claimed himself to be a tenant in respect of the said portion since 1976. His case was that the initial rate of rent was Rs.300/- per month which was later on enhanced to Rs.600/- per month and was inclusive of electricity and water charges. He is in physical possession of the suit property. He had been assessed to house tax by the NDMC and he is being paid house tax since then. He had also paid rent to the defendant. He was being harassed by the defendant and the defendant was threatening to dispossess him. Suit was filed.

3. In the written statement, the defendant controverted his claim. It was stated that the plaintiff had encroached upon the premises of the plaintiff on the night intervening 05/06.07.1999; police complaints had been lodged; it was denied that the plaintiff is a tenant in the premises. It was stated that the plaintiff is stealing electricity and report to that effect had also been lodged; the plaintiff is a tress-passer. The suit premises had been leased out by M/s Hindustan Petroleum to the defendant and the house tax was being paid by the defendant in his own name.

4. On the pleadings of the parties, the following two issues were framed:

"1. Whether the plaintiff is entitled to relief of permanent injunction as claimed in the plaint? OPP.

2. Relief."

5. Oral and documentary evidence was led. Three witnesses were examined on behalf of the plaintiff. The defendant had examined two witnesses. The site plan of the portion in occupation of the defendant was proved as Ex. PW-1/C. The plaintiff in support of his oral evidence had relied upon a rent receipt Ex. PW-1/B for the sum of Rs.900/- stated to be the rent payment for a period of three months. This document is dated 21.05.1976. Perusal of this document clearly shows that it was a payment made on account of tyre repairs; it nowhere mentions that it was issued to the plaintiff. Trial Judge had noted that the plaintiff had admitted in his cross-examination that the rent was being paid by him to the Manager; the said document was even otherwise not issued by the Manager. This document, after careful scrutiny, had been discarded. Ex. PW-1/1 to Ex. PW-6 were the challans allegedly issued by the NDMC to the plaintiff for keeping some tools and machines on the road. They range between dates 16.12.1988 to 15.07.1999. Trial Judge had noted that these documents on scrutiny clearly show that the plaintiff was running his tyre repair shop on a pavement in front of Laxmi Super Service. He was challaned by the NDMC for keeping his tools and machines on the pavement. This was clear from the deposition of PW-3; suit had been filed by the plaintiff in the year 1999; after that date, no challans had been issued by the NDMC to the plaintiff. These documents had also been discarded as they did not in any manner create any tenancy in favour of the plaintiff qua the defendant. The plaintiff had also relied upon Ex. PW-3/2 showing the statement of account with the NDMC; in this document also the name of the assessee is M/s Hindustan Petrol Pump Ltd, M/s Luxmi Super Service and the name of the plaintiff Om Prakash has been appended. Ex. PW-3/2 clearly shows that the assessee is M/s Luxmi Super Service; it is also not the case of the plaintiff Om Prakash that he is the owner of M/s Luxmi Super Service. This document also does not in any manner advance the case of the plaintiff. PW-3 had also in his cross-examination admitted that the house tax is demanded from the owner as also from the occupier of the premises. This answers the query as