Delhi District Court
Mohd. Jamil vs Mohd. Istiyak Ansari (Deceased) on 7 October, 2015
1
In the Court of Ms. Namrita Aggarwal
CCJ Cum Additional Rent Controller1 (Central)
Tis Hazari Courts, Delhi.
Case No. E 241/13
Unique I.D. No. 02401C0156722013
In the matter of :
Mohd. Jamil
S/o Mohd. Ismil
R/o 6342, First Floor,
Gali Iswari Prasad, Bara Hindu Rao,
Delhi110006. ...........Petitioner
Versus
Mohd. Istiyak Ansari (deceased)
Through LR's
(a) Iqbal Anshari (Son)
(b) Afzal Anshari (Son)
Both R/o 6342, First Floor,
Gali Iswari Prasad, Bara Hindu Rao,
Delhi110006. ...........Respondent
ORDER
07.10.2015 Page 1 of 13 Mohd. Jamil Vs. Mohd. Istiyak Ansari (through LRs.) E - 241/13 2
1. Vide this order, I shall dispose off the application moved by respondent for grant of leave to defend the eviction petition filed by the petitioner u/s 14(1)(e) of the Delhi Rent Control Act, 1956 [in short, 'the DRC Act'].
2. An eviction petition has been filed by the petitioner Mohd. Jamil against the tenant/respondent Mohd. Istiyak Ansari for vacation of the tenanted premises, i.e., two rooms, kitchen, bathroom & shared latrine with complete fitting and fixtures of property no. 6342, 1st & 2nd Floor, Gali Ishwari Prasad, Bara Hindu Rao, Delhi, as shown in colour red in the site plan annexed alongwith the petition on the ground of bonafide requirement under Section 14 (1) (e) of the DRC Act.
3. The case of the petitioner is that the father of the petitioner Mohd. Ismile was the owner of property, who expired on 31.08.2003 and after his death, the petitioner has become the owner of the same. That the petitioner is in occupation of two small rooms, open kitchen, bathroom and shared latrine and the petitioner is having five children alongwith one wife and thus, there are seven members in the family of the petitioner and the present accommodation available with the petitioner is highly insufficient for the petitioner and his family members. It is averred that Page 2 of 13 Mohd. Jamil Vs. Mohd. Istiyak Ansari (through LRs.) E - 241/13 3 the petitioner has no alternative suitable accommodation to reside except the abovesaid accommodation in the said premises. Further, it is stated by the petitioner that the respondent is in occupation of two rooms, kitchen, bathroom and shared latrine which is currently under the tenancy of the respondent.
4. Further, it is averred by the petitioner that the petitioner had sent a legal notice dated 01.12.2012 to the respondent, in reply of which it has been stated by the respondent that the daughterinlaw of the respondent, namely, Shagufta Parveen has purchased the suit premises from Mohd. Husain and the repondent is paying rent of Rs. 42/p to his daughterinlaw. It is averred by the petitioner that neither the date of the alleged sale nor any sale documents have been furnished by the respondent.
On the above stated grounds, the present eviction petition has been filed by the petitioner against the respondent for vacation of the tenanted premises.
5. Summons were served upon the respondent who filed leave to defend application taking various grounds interalia :
a) That there was no relationship of landlord and tenant between the Page 3 of 13 Mohd. Jamil Vs. Mohd. Istiyak Ansari (through LRs.) E - 241/13 4 father of the petitioner or the petitioner and the respondent and in the absence of relationship of landlord and tenant between the parties, the present eviction petition is barred under the provisions of DRC Act.
b) That Mst. Shagufta Parveen, the daughterinlaw of the respondent purchased the suit premises from Sh. Mohd. Husain, one of the coowner/landlord of the suit premises vide Sale Deed dated 28.05.2009 which was duly registered on 28.05.2009. Thus, Mst. Shagufta Parveen, the daughterinlaw of the respondent has become the owner of the suit premises and the respondent became the tenant under Mst. Shagufta Parven by operation of law since 1st June, 2009 and she is assessed to house tax in respect of the same and is making payment of the house tax to the MCD. That the suit premises was let out by Sh. Mohd. Yunus and Mohd. Husain, the two uncles of the petitioner. It is submitted that earlier Sh. Mohd. Yunus was receiving the rent and issuing the rent receipts to the respondent and thereafter, Sh. Mohd. Husain sold the suit premises out of his unspecified/undivided share in property no. 6342, Gali Ishwari Prasad, Bara Hindu Rao, Delhi to Mst. Shagufta Parven, the daughterinlaw of the respondent for valuable consideration vide Page 4 of 13 Mohd. Jamil Vs. Mohd. Istiyak Ansari (through LRs.) E - 241/13 5 registered Sale Deed dated 28.05.2009
c) That the respondent was tenant in the suit premises since 1965 upto May, 2009 under Sh. Mohd. Yunus and Sh. Mohd. Husain. Thereafter, the respondent became the tenant of Mst. Shagufta Parveen by operation of law. It is submitted that during the tenancy of more than 48 years, the respondent never paid any rent of any month to the father of the petitioner or to the petitioner.
d) That the documents of Award by any Arbitrator in Urdu language are forged and fabricated documents. That the property no. 6342 was jointly owned by six brothers, namely, (1) Mohd. Ismail, (2) Mohd. Yusuf, (3) Mohd. Yunus, (4) Mohd. Ayyub, (5) Mohd. Umar and (6) Mohd. Husain and no compromise, no partition, no family settlement has ever taken place in respect of property no. 6342 and no arbitrator has ever been appointed by the said six brothers for any dispute about the distribution/partition of the property no. 6342, Gali Ishwari Prasad, Bara Hindu Rao, Delhi.
e) That the petitioner is in the habit of filing false and frivolous suit against his relatives and other tenants/occupants in respect of property no. 6342 out of which some suits are still pending and one suit bearing no. 244/09/04 against Sh. Moh. Husain (and others), the earlier owner/landlord of the suit premises was Page 5 of 13 Mohd. Jamil Vs. Mohd. Istiyak Ansari (through LRs.) E - 241/13 6 decided on 07.07.2011 by Sh. Naresh Kumar Malhotra, Ld. ASCJ, Delhi and it was held in that suit that Sh. Mohd. Husain is one of the joint owner of the subject matter of that suit and a portion of property no. 6342, Gali Ishwari Prasad, Bara Hindu Rao, Delhi and the claim of the petitioner that he and his brother Mohd. Haroon are the exclusive owners of a portion of property no. 6342 was rejected by the abovesaid court.
f) That Sh. Mohd. Husain son of late Sh. Allah Diya was the owner of 1/6th unspecified/undivided share in property no. 6342, Gali Ishwari Prasad, Bara Hindu Rao, Delhi and he also inherited some portion of property no. 6342 from Sh. Mohd. Yusuf, his elder brother as Sh. Mohd. Yusuf was not having any child from his wife and his wife had also predeceased him, hence, Sh. Mohd. Yunus had died childless in 2003 and his share in property no. 6342 was inherited by his alive brothers including Mohd. Husain and one adopted daughter Mst. Gulshan Nasim and excluding Late Sh. Mohd. Ismail, the father of the petitioner, as Sh. Mohd. Ismail died before Sh. Mohd. Yusuf and in such circumstances, the father of the petitioner had not inherited any share in the share of the property of Mohd. Yusuf as per Mohammedan Law. That Sh. Mohd. Husain was also a registered GPA of his brother Mohd. Page 6 of 13 Mohd. Jamil Vs. Mohd. Istiyak Ansari (through LRs.) E - 241/13 7 Umar for his share in property no. 6342.
g) That three Sale Deeds have been executed and registered with the SubRegistrar in respect of three portions of property no. 6342(including the suit premises) to the knowledge of the petitioner but the petitioner has not challenged any of the Sale Deed till date, hence he is estopped from filing any eviction petition in respect of any potion of the property for which a Sale Deed has been executed and registered with the SubRegistrar. Further, it is averred that the respondent is filing a complete site plan of entire building bearing no. 6342 to show various owners of different portions including the suit premises which is shown in colour red and also other portions occupied by different persons.
h) That the petitioner has deliberately concealed the relevant facts of three rooms accommodation at the first floor and second floor of property no. 6342. It is submitted that the petitioner is in possession of three rooms on first and second floor. Hence, the petitioner is in possession of the reasonable, suitable residential accommodation for his family of small children.
i) That the petition is bad for nonjoinder of necessary parties as besides the petitioner, other legal heirs of all the six deceased brothers, who were the joint owners of the property no. 6342, have Page 7 of 13 Mohd. Jamil Vs. Mohd. Istiyak Ansari (through LRs.) E - 241/13 8 not been impleaded as petitioners and as such, the present eviction petition is liable to be dismissed.
6. Reply to the application for leave to defend has been filed by the petitioner wherein the petitioner has denied all the averments made by the respondent in his leave to defend application. Further, it is stated by the petitioner that the tenanted premises was jointly purchased by the father of the petitioner alongwith his brothers and thereafter a family settlement was arrived in 1983 between the father of the petitioner and his brothers on 01.04.1983 and 15.04.1983 as per which the brothers of the father of the petitioner, namely, Mohd. Yusuf, Mohd. Yunus, Mohd. Ayyub were to get the ground floor of the property vacated from the tenant on their expenses and the property came into the share of the father of the petitioner. That Mohd. Husain had never issued any rent receipt in respect of the property and the property receipts have been filed upto 08.03.1978 and the respondent claimed to be tenant under Mohd. Husain upto 2009 but have not filed any receipt issued by Mohd. Husain but the receipt filed have been issued only by Mohd. Yusuf and in such a case how could Mst. Shagufta Parveen purchase the property from Mohd. Husain vide Sale Deed dated 28.05.2009. Further, it is stated by the petitioner that Mohd. Husain had no right to execute the Page 8 of 13 Mohd. Jamil Vs. Mohd. Istiyak Ansari (through LRs.) E - 241/13 9 Sale Deed and neither Mohd. Husain was the owner or landlord of the said property and moreover, Mohd. Husain also already sold his share in the properties to one Hoor Bano and therefore, could not have sold the property to Mst. Shagufta Parveen. This itself goes to show that the Sale Deed is a forged and fabricated document and therefore, no reliance can be placed on the said documents an have been got prepared with malafide intention. It is denied that Mohd. Husain ever issued any rent receipt in respect of the premises and moreover, the respondent have not filed any rent receipt alleged to have been executed by Mohd. Husain. It is stated that the sale of undivided, unspecified share by Mohd. Husain who himself did not have any right in the premises to Mst. Shagufta Parveen cannot confer any right, title or interest in the property. It is specifically denied that the Award of the Arbitrator is forged and fabricated or that the petitioner has made false averments.
7. Rejoinder has been filed wherein the respondent has reaverred what was averred by him in his leave to defend application. Further, it is submitted by the respondent that Sh. Mohd. Husain was issuing the rent receipt to the respondent in respect of the suit premises. It is submitted that the rent receipts issued by Sh. Mohd. Husain were not found at the time of filing the application for leave to defend as the respondent was Page 9 of 13 Mohd. Jamil Vs. Mohd. Istiyak Ansari (through LRs.) E - 241/13 10 seriously ill and was hospitalized at that time and was unable to locate th said rent receipts, which have now been filed alongwith rejoiner affidavit. It is denied that Mohd. Husain also already sold his share in the properties to one Hoor Bano and therefore, could not have sold the property to Mst. Shagufta Parveen. It is submitted that Sh. Mohd. Husain did not sold his own share to Mst. Hoor Bano as alleged by the petitioner. As a matter of fact, Sh. Mohd. Husain sold his share and the share of his brother Sh. Mohd. Umar as his Regd. GPA which was inherited from his elder brother Sh. Mohd. Yusuf. It is submitted that the said share inherited by Sh. Mohd. Husain and his brother Sh. Mohd. Umar from the share of their deceased brother Sh. Mohd. Yusuf alongwith their own share in the said property was sold to Ms. Hoor Bano wife of Sh. Qamrul Hasan vide a registered Sale Deed and thereafter, Mst. Hoor Bano sold the said portion of property to Mst. Zeenat Rashid wife of Mohd. Rashid Farooqui vide a registered Sale Deed which was registered in the year 2008 and none of the Sale Deed has been challenged by the petitioner till now. Further, it is submitted by the respondent that the agreement/settlement dated 17.01.2004 regarding the distribution of the share of Sh. Mohd. Yusuf is attached herewith. Further, it is submitted by the respondent that the father of the petitioner was not the exclusive or sole owner of the tenanted premises. Page 10 of 13 Mohd. Jamil Vs. Mohd. Istiyak Ansari (through LRs.) E - 241/13 11
8. I have heard the arguments and perused the material available on record.
Essential ingredients of Section 14(1)(e) of DRC Act, 1958. i. Petitioner is the owner in respect of the tenanted premises; ii. He require the premises bonafide for himself or for family members dependent upon him;
iii. He has no other reasonably suitable accommodation.
9. In the present case, the main contention raised by the respondent is that the daughterinlaw of the respondent Mst. Shagufta Parveen is the owner of the suit premises having purchased the same from Mohd. Husain by way of a registered Sale Deed dated 28.05.2009. It is averred by the respondent that Mohd. Husain was the coowner of the suit premises and he had sold his undivided share in the suit property to the daughterinlaw of the respondent and that the respondent has been paying rent to her daughterinlaw Mst. Shagufta Parveen since then. Per contra, it is submitted by the petitioner that no rent was ever paid by the respondent to Mohd. Husain and therefore, Mohd. Husain had no right to execute any Sale Deed in favour of the daughterinlaw of the respondent namely Mst. Shagufta Parveen. Further, it is stated by the petitioner that Mohd. Husain had already sold his share of the property to Page 11 of 13 Mohd. Jamil Vs. Mohd. Istiyak Ansari (through LRs.) E - 241/13 12 one Mst. Hoor Bano and therefore, could not have sold the property to Mst. Shagufta Parveen. However, the respondent has filed counterfoils of the rent receipt, by virtue of which the respondent had paid rent to Mohd. Yusuf and Mohd. Husain. In contrary, no rent receipt has been filed by the petitioner to show that rent was ever paid by the respondent to the petitioner at any point of time. Further, no Sale Deed has been filed by the petitioner to prove that Mohd. Husain had ever sold his share of property to Mst. Hoor Bano and therefore, triable issue is raised as to whether Mohd. Husain had sold his share to M/s Shagufta Parveen. Further, triable issue is also raised whether Mohd. Husain was entitled to sell his share to Mst. Shagufta Parveen or whether he had already sold his share to Mst. Hoor Bano. Further, triable issue is also raised with respect to ownership of the petitioner over the tenanted premises as well as existence of landlordtenant relationship between the petitioner and the respondent.
10. As per the contention of the petitioner, a family settlement was arrived at in 1983 between the father of the petitioner and his brothers, as per which the brothers of the father of the petitioner, namely, Mohd. Yusuf, Mohd. Yunus and Mohd. Ayyub were to get the ground floor of the property vacated from the tenants on their own expense and the Page 12 of 13 Mohd. Jamil Vs. Mohd. Istiyak Ansari (through LRs.) E - 241/13 13 tenanted premises came to the share of the father of the petitioner. However, no copy of such settlement has been filed by the petitioner on record.
11. In these circumstances, respondent is able to raise number of triable issues which requires evidence to be proved. Hence, the leave to defend application filed by the respondent is allowed. Respondent is granted leave to contest the present eviction petition.
Announced in open Court (Namrita Aggarwal)
on 07 Day of October, 2015.
th
CCJ cum ARC1 (Central)
[This order contains 13 pages.] Tis Hazari Courts, Delhi
Page 13 of 13 Mohd. Jamil Vs. Mohd. Istiyak Ansari (through LRs.) E - 241/13