Delhi District Court
Smt. Neelam Dawar vs Sh. Nanak Chand (Since Deceased) on 25 February, 2013
IN THE COURT OF SHRI BALWANT RAI BANSAL
ADDITIONAL SENIOR CIVIL JUDGE,
SAKET COURTS, NEW DELHI
MCA NO. 1/12
1. Smt. Neelam Dawar
Widow of Sh. Chander Prakash
B124, Panchwati Society,
Vikaspuri, New Delhi110018
2. Sh. Hitesh Kumar
3. Sh. Khem Chand
Both sons of Late Sh. Gulshan Rai
Both residents of 713/44,
Shambu Nagar
Tri Nagar, New Delhi.
..... Appellant
Vs.
Sh. Nanak Chand (since deceased)
Through LRs :
(i) Smt. Devi Bai w/o Late Sh. Nanak Chand
R/o A92, Dayanand Colony,
Lajpat NagarIV, New Delhi110024
(ii)Sh. Ghansham Dass S/o Late Sh. Nanak Chand
R/o A2/34, Ashirwad Apartments, LIG Flats
Paschim Vihar, New Delhi110063
MCA No. 01/12 Page 1 of 13
(iii) Sh. Govinda Sukhiyani s/o late Sh. Nanak Chand
R/o. 145, Ground Floor, Vinoba Puri,
Lajpat NagrII, New Delhi110024
(iv) Sh. Ramesh Kumar s/o late Sh. Nanak Chand
R/o A92, Dayanand Colony,
Lajpat NagarIV, New Delhi110024
Also at:
Shop No. 325, Punjabi Bazar
Kotla Mubarakpur, New Delhi110003
(v) Smt. Meera Kumari w/o Sh. Om Prakash
D/o late Sh. Nanak Chand
R/o. House No. 84, Block G, 23,
Sector7, Rohini, New Delhi110085.
(vi) Smt. Asha Nihalani W/o Sh. Shyam Sunder
D/o late Sh. Nanak Chand
R/o House no. 4, first Floor, Block No. 5, Gali No. 6
Geeta Colony, Delhi110034
..... Respondents
JUDGMENT
1. This is an appeal against the impugned order dated 23.11.2011 passed by Ms. Vijeta Singh, Civil Judge04 (South), Saket Courts, New Delhi by which application U/o 39 Rule 1 & 2 moved by the appellants was dismissed .
2. Brief facts as borne out from the Trial Court record are that MCA No. 01/12 Page 2 of 13 the appellants filed a suit for permanent and mandatory injunction against the respondent Sh. Nanak Chand (since deceased). It was contended that the appellants are the owners and landlords of property bearing Shop No. 325, Punjabi Bazar, Kotla Mubarakpur, New Delhi on the basis of letter of administration granted by the court of Sh. V.K. Gupta, Ld. ADJ on 26.10.2006. It is averred that suit premises was earlier owned by Sh. Jiwan Das who executed a registered Will dated 23.02.1963 bequeathing the aforesaid property in favour of his grand son Sh. Chander Prakash and Sh. Gulshan Rai. The appellant no. 1 is the wife of late Sh. Chander Prakash and appellants no. 2 and 3 are sons of late Sh. Gulshan Rai who have the letter of administration in their favour. It is averred that the appellants after obtaining the letter of administration approached the respondent on 28.11.2006 to apprise him that they are the owners/landlords of the suit property, but the respondent refused to acknowledge the appellants as owners and landlords. It is further stated that the respondent who is running business in the suit premises since 01.12.1977 at a monthly rent of Rs. 46/ besides other charges is not paying the rentals. The appellants also claim that the despite repeated requests to hand over the possession and to carry out the repairs in the suit property, the respondent has MCA No. 01/12 Page 3 of 13 denied the entry of the appellants and the appellants require the suit property bonafide for their use and rebuilding. Even the respondent has not been allowing the appellants to inspect the suit property when the appellants made visits on 09.01.2011 and 27.03.2011. The respondent has been threatening to create third party interest and denying the entry to the appellants in the suit premises. Hence, the appellants filed the suit praying for decree of mandatory injunction to restrain the respondents from preventing the appellants from visiting, entering and inspecting the suit premises i.e. Shop No. 325, Punjabi Bazar, Kotla Mubarakpur and decree of permanent injunction for restraining the respondent from selling, creating third party interest in the suit property.
3. Along with the suit, the appellants also filed an application U/o 39 Rule 1 & 2 CPC to restrain the respondent from preventing the appellants from visiting, entering and inspecting the suit premises i.e. Shop No. 325, Punjabi Bazar, Kotla Mubarakpur and from selling, creating third party interest in the suit property till the final disposal of the case.
4. The respondent filed the written statement challenging the locus standi of appellants to file the present suit. Respondent contended that he was inducted tenant by late Sh. Amar Nath, son of late Sh. Jiwan MCA No. 01/12 Page 4 of 13 Dass in the year 1977 after the death of Sh. Jiwan Dass at the monthly rent of Rs. 46/. Sh. Amar Nath and his family members tried to dispossess him which compelled him to file a suit for permanent injunction which was decreed in his favour on 29.11.1999. Thereafter, an eviction petition was also filed by Sh. Amar Nath against him and after his death same was followed by his legal heirs which was also dismissed vide order dated 27.11.1996. The respondent had been depositing the rent U/s 31 of Punjab Relief Indebtedness Act in the court from 01.08.1994 to 31.10.2000. It was averred that another eviction petition was filed by Smt. Kaushalya, wife of Sh. Amar Nath which was also dismissed. The appellants were claimed to be strangers qua the suit property and the respondent denied that the letter of administration confers any ownership right over the suit property. Therefore, the respondent denied the ownership of the appellants over the suit property and has prayed for dismissal of the suit.
5. Vide impugned order dated 23.11.2011, the Ld Civil Judge dismissed the application of the appellants U/o 39 Rule 1 & 2 CPC. Aggrieved by the impugned order the appellants have preferred the present appeal.
6. It is contended by the appellants in the present appeal that MCA No. 01/12 Page 5 of 13 impugned order is against the law and facts. The trial court failed to appreciate that the appellants are the owners and landlords of the tenanted premises by virtue of letter of administration granted by the competent court of law and mutation of the premises has been carried out in the municipal records. The respondent being only a tenant cannot question the ownership of landlord by virtue of presumption U/s 116 of Indian Evidence Act. The Ld. Trial Court failed to appreciate that appellant suit was simplicitor suit for injunction against the tenant from creating third party interest, but the Trial Court misapplied the judgments and failed to grant the relief as claimed. The appellants were not required to seek relief of any declaration against the respondent who is only a tenant. The Trial Court failed to appreciate that respondent is trying to create third party interest and in case he succeeds, the suit will become infructuous and there would be multiplicity of litigations between the parties. Therefore, the appellants have prayed for setting aside the impugned order dated 23.11.2011 by which the application for interim injunction was declined.
7. It is pertinent here to mention that during the pendency of present appeal, the respondent Sh. Nanak Chand expired and on an application moved by his LRs U/o 22 Rule 4 CPC, the LRs as shown in MCA No. 01/12 Page 6 of 13 memo of parties were taken on record and substituted in place of deceased respondent Sh. Nanak Chand.
8. I have heard the Ld. Counsel for the parties and perused the record carefully. Trial Court record was also summoned and I have also perused the same.
9. The appellants are claiming to be owners of the property in question by virtue of letter of administration granted in their favour by the competent court of law on 26.10.2006. The appellants contended that the respondent Sh. Nanak Chand who is tenant in the suit property is not allowing them to enter into the property and the appellants have apprehension that the respondent may create third party interest in the suit property.
10. On the other hand, the respondent has denied that the appellants are owners or landlords of the suit premises by virtue of letter of administration granted in their favour. The respondent has contended that suit premises was let out to him by Sh. Amar Nath in the year 1977 being the owner of the suit premises. It was also contended by the respondent that during his lifetime Sh. Amar Nath filed eviction petition against him to evict him from the suit premises under DRC Act and after his death, his widow and LRs. also filed eviction petition against the MCA No. 01/12 Page 7 of 13 respondent, but the petitions were got dismissed.
11. The Ld. Civil Judge vide impugned order has observed that since the respondent has denied the status of appellants as owners/landlords of the suit property, therefore, title of the appellants is shrouded with doubts and the suit simpliciter for injunction without declaration to that effect is not maintainable and hence dismissed the application of the appellants u/o 39 Rule 1 & 2 CPC.
12. In the present appeal, the appellants have contended that the Ld. Trial Court failed to appreciate that the appellants are the owners and landlords of the tenanted premises by virtue of letter of administration granted in their favour by the competent court of law and the respondent being a tenant in the suit premises cannot dispute the title of the appellants over the suit premises and is estopped from disputing the ownership of appellants by virtue of Section 116 of Indian Evidence Act.
13. The Ld. Counsel for respondents has contended that the appellants have claimed the ownership over the suit property on the basis of Will dated 23.02.1963 executed by Sh. Jiwan Dass bequeathing the property in question in favour of his grand sons Sh. Chander Prakash and Sh. Gulshan Rai. He has argued that the appellants who claim to be MCA No. 01/12 Page 8 of 13 the legal heirs of Sh. Chander Prakash and Sh. Gulshan Rai but Sh. Chander Prakash and Sh. Gulshan Rai never exercised alleged ownership right as legatees under the said Will. It is only the LRs of Sh. Chander Prakash and Sh. Satpal who after their death have obtained the letter of administration in respect of the aforesaid Will, but they did not exercise any ownership rights under the said Will and since the appellants are neither in possession of the suit property nor there exist any relationship of landlord and tenant between the appellants and respondents, the suit simpliciter for injunction is not maintainable. Reliance has been placed upon Chiranjilal Shrilal Goenka Vs. Jasjit Singh & Ors. (1993) 2 SCC 507 in which the Hon'ble Apex Court has held that, "Probate court does not decide any question of title, or the existence of the property itself."
14. It has also been held in Sushila Bala Saha Vs. Saraswati Mondal AIR 1991 Calcutta 166 that, "It is now well known proposition of law that probate court cannot go into the question of title." Similarly, it has been held in Thomas P. Jacob Vs. M.G. Varghese & Ors. AIR 1987 Kerala 193 that, "It is settled law that in proceedings for probate or letters of administration, the Court does not enter on the question of title to the property which the testator by his Will proposed to leave." MCA No. 01/12 Page 9 of 13
15. From the aforesaid authorizes relied upon by the Ld. Counsel for respondents, it is evident that Probate Court does not decide the title of the parties over the suit property.
16. Though, Ld. Counsel for appellant has relied upon the authority titled as S.S. Gupta Vs. Himmat Singh 2010 (115) DRJ 612 in which it was held that where Administrators are also beneficiaries under the Will, the succession shall take place in accordance with the terms of the Will and they will become the owners of the property with a right to administer the property in accordance with the Will.
17. But, in view of law laid down by the Hon'ble Apex Court in Chiranjilal Shrilal Goenka Vs. Jasjit Singh & Ors.(1993) 2 SCC 507 , it cannot be said that the appellants have become the owners of the property in question by virtue of letter of administration granted in their favour in respect of the Will.
18. So far the contention of the appellants that respondent being tenant is estopped from disputing the title of the appellants over the suit property is concerned, admittedly there exist no relationship of landlord and tenant between the appellants and the respondent. The respondent has never acknowledged the appellants to be landlords of the suit property nor the respondent was inducted by the appellants. MCA No. 01/12 Page 10 of 13 Therefore, Section 116 of Indian Evidence Act is not applicable in the present case. For the same reason, the authority relied upon by the Ld. Counsel for appellants titled as Rajender Kumar Sharma & Ors Vs. Lella Wati & Ors 155 (2008) DLT 383 is not applicable in the facts and circumstance of the present case.
19. Similarly, the another authority relied upon by the Ld. Counsel for appellants titled as Crystal Developers Vs. Smt. Asha Lata Ghose (Dead) Through LRs. AIR 2004 SC 4980 is not applicable in view of controversy involved in the present case. The Ld. Counsel for appellants has also relied upon the authority titled as Sanjay Gupta & Anr. Vs. Ved kanti Gupta & Anr. 1994 (31) DRJ by which it was held that, "The suit for declaration that the plaintiffs are the owners of the property on the basis of a Will on which no probate or letter of administration was obtained is maintainable."
20. Again this authority is not applicable in the facts of the present case because in the present case the appellants are claiming to be the owners of the suit property by virtue of letter of administration and in view of law down by the Hon'ble Supreme Court in aforesaid authority cited supra, the letter of administration does not confer any ownership rights over the property.
MCA No. 01/12 Page 11 of 13
21. It has also been held by the Hon'ble Supreme Court in Anathula Sudhakar Vs. P.Buchi Reddy (Dead) Through LRs & Ors. AIR 2008 SC 2033 that, "Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter."
22. In the present case, admittedly, the appellants are not in possession of the suit property and there exist no relationship of landlord and tenant between the appellants and respondents as the respondent has disputed the title of the appellants as owners/landlords of the property in question. Therefore, in view of law laid down by the Hon'ble Supreme Court in the aforesaid authority, prima facie the suit filed by the appellants simply for injunction without seeking relief of declaration and possession appears to be not maintainable.
23. The Ld. Trial Court vide impugned order has rightly observed that prima facie a simplicitor suit for injunction without MCA No. 01/12 Page 12 of 13 declaration is not maintainable. Since the appellants have failed to show prima facie their ownership over the suit property or any relationship of landlord and tenant between the parties and further prima facie the suit of the appellants even found to be not maintainable without seeking consequential relief of declaration and possession, I do not find any illegality or infirmity in the impugned order passed by the Ld. Trial Court. Hence, there is no merit in the present appeal and same is hereby dismissed.
Appeal file be consigned to Record Room.
Trial Court be sent back to the concerned court along with copy of this judgment.
Announced in Open Court (Balwant Rai Bansal)
on 25th February, 2013 Additional Senior Civil Judge (South)
Saket Courts, New Delhi
MCA No. 01/12 Page 13 of 13
MCA No. 01/12
25.02.2013
Present: None
Vide my separate judgment of even date dictated and announced in the open court, the present appeal is dismissed.
Appeal file be consigned to Record Room.
TCR be sent back to the trial court along with copy of this judgment.
(Balwant Rai Bansal) JSCC/ASCJ(South) Saket Courts, New Delhi 25.02.2013 MCA No. 01/12 Page 14 of 13