Delhi District Court
Bimla vs Gajraj Singh & Ors on 11 January, 2016
IN THE COURT OF SH BALWANT RAI BANSAL,
ADDITIONAL DISTRICT JUDGE02, SOUTH EAST,
SAKET COURTS, NEW DELHI
Civil Suit No. 289/15
Bimla
.......... Plaintiffs
Versus
Gajraj Singh & Ors.
.......... Defendants
ORDER
1. Vide this order, I shall dispose of an application u/o 39 rule 1 & 2 CPC moved by the plaintiff.
2. Brief facts necessary for disposal of the application are that the plaintiff has filed the present suit for declaration, cancellation and permanent injunction against the defendants. 2.1. It is stated that sometimes in the year 1963 Sh. Nand Kishore Saini, the husband of the plaintiff came in possession of property in Khasra No. 296/9 situated at Kotla Mubarkpur, New Delhi now known as Shop No. 1407 (hereinafter referred as suit property). The husband of the plaintiff constructed the said plot and nobody raised any objection nor claimed any right, title or CS No. 289/15 Bimla Vs. Gajraj Singh & Ors. Page 1 of 17 interest. The late husband of the plaintiff has been claiming himself owner of the suit property and has been enjoying the same continuously without any claim or interruption from any other person including the defendant no. 1 and his forefathers. By such continuous, uninterrupted and hostile claim by passage of time Sh. Nand Kishore Saini has perfected his title and became the absolute owner of the suit property. As per the revenue records, the suit property was recorded as Shamlat and name of husband of the plaintiff was also recorded as occupant.
2.2. It is averred that husband of the plaintiff has been running the shop under the name Saini General Store which was changed to Saini Electricals. The plaintiff and Sh. Nand Kishore Saini have 6 children who are impleaded as defendant no. 2 to 7. Defendant no. 2 to 4 have been extending the help in the business run by Sh. Nand Kishore Saini, but after 2008, due to various old age ailments Sh. Nand Kishore Saini had not been attending the shop regularly and defendant no. 2 to 4 have been looking after the said business. 2.3. It is stated that MCD launched a sealing drive in the year 2002 and on the advice of defendant no. 1 who is a neighbour and had good relations with the husband of plaintiff, Sh. Nand Kishore Saini signed few documents including some receipts to protect his property, however neither the husband of the plaintiff paid any rent CS No. 289/15 Bimla Vs. Gajraj Singh & Ors. Page 2 of 17 nor admitted the defendant no. 1 as landlord of the suit property nor even defendant no. 1 claimed any right or interest over the suit property. However, the defendant no. 1 became greedy and dishonest and wanted to grab the suit property by hook or crook. On 30.09.2009, the defendant no. 1 attempted to take forcible possession of suit property but could not succeed. Thereafter, defendant no. 1 hatched conspiracy to grab the suit property by alluring defendant no. 2 to 4 who used to run the business due to ill health and in the absence of Sh. Nand Kishore Saini. 2.4. The defendant no. 1 forged and fabricated few rent receipts and filed an eviction petition u/s 14 (1) (e) of DRC Act in which he claimed that suit property was let out by his forefather in the year 1958 to the husband of plaintiff Sh. Nand Kishore Saini and monthly rent is Rs. 150/. The husband of plaintiff contested the said eviction petition, however during the said eviction petition, the husband of plaintiff expired on 02.07.2011 and being one of the legal heir, the plaintiff is in actual and constructive possession of the suit property and has succeeded ownership right and title. It is stated that despite the fact that Sh. Nand Kishore Saini left behind the plaintiff as widow and three daughters i.e. defendant no. 5 to 7 besides defendant no. 2 to 4, the defendant no. 1 intentionally did not implead the present plaintiff as well as defendant no. 5 to 7 in CS No. 289/15 Bimla Vs. Gajraj Singh & Ors. Page 3 of 17 the said proceedings. Defendant no. 1 only impleaded defendant no. 2 to 4 to obtain a collusive and fraudulent decree on the pretext of eviction proceedings.
2.5. It is further averred that since the plaintiff was never impleaded as a party in the said proceedings, the plaintiff has not been aware of said proceedings and under bonafide belief in the absence of impleadement of all the legal heirs as a party in the said proceedings plaintiff thought that proceedings has been abated and over. It is stated that defendant no. 2 to 4 did not contest the eviction proceedings rightly and defendant no. 1 succeeded in getting the eviction order from the court of Rent Controller who had no power to adjudicate the title and ownership and passed the decree dated 16.07.2013.
2.6. It is stated that the plaintiff on 28.02.2015 was shocked to learn from the neighbourers about the eviction decree obtained by defendant no. 1 and thereafter the plaintiff filed an application u/o 21 rule 58 and 99 to 101 CPC in the execution. It is stated that under the aforesaid circumstances the present suit has been filed by the plaintiff seeking (i) decree of declaration that plaintiff being one of legal heir of late Sh. Nand Saini may be declared as one of the owner of the suit property, (ii) decree of cancellation of rent receipts purportedly executed by late Sh. Nand Kishore Saini CS No. 289/15 Bimla Vs. Gajraj Singh & Ors. Page 4 of 17 declaring the same forged, fabricated and illegal and having no sanctity and cancelling the judgment/decree dated 16.07.2013 passed by Ld. Rent Controller in eviction case No. 214/2009 titled as Gajraj Singh Vs. Nand Kishore Saini through his legal heirs, (iii) decree of permanent injunction restraining the defendants from taking the possession of the suit property and also restraining the operation of the judgment and decree dated 16.07.2013.
3. Along with the suit, the plaintiff has moved an application u/o 39 rule 1 & 2 CPC, which is under disposal, seeking ad interim injunction to restrain the defendants from disturbing and interfering with the title, right and possession of the plaintiff in respect of suit property and from enforcing the judgment/decree dated 16.07.2013 passed by Ld. Rent Controller in Eviction Case No. 214/2009 titled as "Gajraj Singh Vs. Nand Kishore Saini (since deceased) through his legal heirs" and staying the operation of said judgment dated 16.07.2013 in respect of suit property during the pendency of the suit.
4. The defendant no. 1 filed the written statement contending that present case has been filed to delay the execution of lawful eviction order passed by Ld. Rent Controller which has attained finality from the Hon'ble High Court of Delhi. The suit is not maintainable for want of further relief of partition in view of provisions of Section 34 of Specific Relief Act. Suit is also not CS No. 289/15 Bimla Vs. Gajraj Singh & Ors. Page 5 of 17 maintainable as plaintiff has filed the objections u/o 21 rule 58 and 99 to 101 CPC which are pending consideration.
4.1. The present suit is barred by limitation as the eviction petition was filed by the landlord/defendant no. 1 against the original tenant in which leave to defend application was filed somewhere in March 2010. The original tenant was confronted with the rent receipt and the averments made in the eviction petition, therefore cause of action for getting the rent receipts declared as null and void, forged and fabricated had accrued to the original tenant on or before the day when he filed his leave to defend application in March 2010. The suit for declaration of rent receipt as null and void could have been filed within three years from April 2010 and same has not been done by the original tenant. The plaintiff being one of the legal heir of original tenant deriving her title through him cannot file the present suit which has become time barred.
4.2. It is stated that suit has not been valued properly and court fees is liable to be paid ad valorem on the market rate of the suit property. It is stated that during the pendency of the eviction petition, original tenant had expired and his known legal heirs were substituted in his place. The legal heirs of original tenant have never objected or disclosed the name of other legal heirs except CS No. 289/15 Bimla Vs. Gajraj Singh & Ors. Page 6 of 17 themselves. The defendant no. 2 to 4 had also claimed their right by virtue of Will. It is stated that the deceased tenant was duly represented by his legal heirs i.e. defendant no. 2 to 4. The plaintiff was well aware about the proceedings in eviction proceedings before the Rent Controller and the Hon'ble High Court but never made any attempt to join the proceedings as same were being duly contested and looked after by the legal representatives of deceased husband of the plaintiff.
4.3. The plaintiff has been trying to agitate the grounds with regard to status of her husband in the suit property which were raised and declined by the Rent Controller and the Hon'ble High Court. It is stated that even the suit for declaration of ownership on the basis of adverse possession is not maintainable. It is stated that the plaintiff cannot be allowed to reagitate the issues which have already been decided. It is denied that Sh. Nand Kishore Saini came in occupation of the suit property in the year 1963 or that he had raised the construction.
4.4. It is stated that Sh. Nand Kishore Saini was inducted as tenant by predecessor in interest of defendant no. 1. The suit property has fallen in share of defendant no. 1 after mutual partition amongst the family members of defendant no. 1 forefather. The husband of the plaintiff had attorned to defendant CS No. 289/15 Bimla Vs. Gajraj Singh & Ors. Page 7 of 17 no. 1 as his landlord/owner and was paying rent since after 1990. It is stated that present suit has been filed by the plaintiff in collusion with her sons to thwart the execution of lawful eviction decree. It is denied that Sh. Nand Kishore Saini had become owner by virtue of adverse possession. It is further denied that defendant no. 1 secured the eviction order in collusion and connivance with the defendant no. 2 to 4. The other contents are stated to be wrong and denied and the defendant no. 1 has prayed for dismissal of the suit and the application.
5. The defendant no. 2 to 5 were proceeded exparte and their right to file the WS was closed. Similarly, right to file the WS of defendant no. 6 and 7 was also closed as WS was not filed by them within statutory period.
6. I have heard the Ld. Counsel for the parties and perused the record carefully.
7. In order to succeed for grant of temporary injunction, the plaintiff is required to establish three ingredients i.e.(i) the plaintiff has a prima facie case in her favour, (ii) balance of convenience lies with the plaintiff and (iii) the plaintiff shall suffer irreparable loss and injury which cannot be compensated in terms of money, if the injunction is not granted.
8. The case of the plaintiff is that her husband late Sh. Nand CS No. 289/15 Bimla Vs. Gajraj Singh & Ors. Page 8 of 17 Kishore Saini occupied a vacant land which was later on constructed by him which is the suit property. It is further case of the plaintiff that her husband Sh. Nand Kishore Saini has been claiming himself to be owner of the suit property and has been enjoying the same without any interruption from anybody and due to continuous, uninterrupted and hostile claim of ownership, he had become the absolute owner of the suit property. The plaintiff has further claimed that defendant no. 1 in collusion with her sons filed an eviction petition in respect of suit property against her late husband Sh. Nand Kishore Saini on the basis of forged rent receipts. The husband of the plaintiff Sh. Nand Kishore Saini contested the said eviction petition and denied the relationship of landlord and tenant and also the rent receipts. Sh. Nand Kishore Saini died during the pendency of eviction proceedings and the defendant no. 1 deliberately did not implead the plaintiff in the eviction proceedings to grab the property in collusion with her sons. The defendant no. 1 succeeded in obtaining the eviction order in respect of suit property, but since the plaintiff has also succeeded the tenancy rights after the death of Sh. Nand Kishore Saini as per the case of defendant no. 1 in the eviction petition, therefore she should have also been impleaded as a party in the said eviction petition and in the absence thereof, the eviction order is not binding upon her.
9. From the aforesaid narration of facts, it is apparent that CS No. 289/15 Bimla Vs. Gajraj Singh & Ors. Page 9 of 17 defendant no. 1 had filed an eviction petition u/s 14 (1) (e) r/w section 25B of DRC Act in respect of suit shop claiming Sh. Nand Kishore Saini, husband of the plaintiff to be tenant in the suit shop. The defendant no. 1 had claimed that Sh. Nand Kishore Saini was inducted as a tenant in the suit shop by his forefather and rent receipts were also executed by which Sh. Nand Kishore Saini has admitted the defendant no. 1 as landlord. In leave to defend application, Sh. Nand Kishore Saini denied the relationship of landlord and tenant and also disputed the execution of rent receipts.
10. It is also admitted fact that during the pendency of eviction proceedings, after filing of leave to defend application, Sh. Nand Kishore Saini had expired and an application u/o 22 rule 4 CPC was moved by defendant no. 1 for impleading the legal heirs of late Sh. Nand Kishore Saini. Admittedly, the plaintiff was not impleaded as a legal heir of Sh. Nand Kishore Saini, the deceased tenant in the eviction proceedings.
11. Ld. Counsel for defendant no. 1 has argued that after the death of tenant Sh. Nand Kishore Saini, his legal heirs inherited the joint tenancy and occupation of one of the tenant is occupation of all the joint tenants and it was not necessary for landlord to implead all legal heirs of deceased tenant whether they are living in the property or not. He further argued that once it is held that the tenancy was joint, CS No. 289/15 Bimla Vs. Gajraj Singh & Ors. Page 10 of 17 a notice to one of the joint tenants was sufficient. He has placed reliance on Rajender Kumar Sharma Vs. Leelawati & Ors., 155 (2008) DLT 383 and Kanji Manji Vs. The Trustees of the Port of Bombay, 1963 AIR 468.
12. Per contra, Ld. Counsel for plaintiff has relied upon the judgment of the Hon'ble Delhi High Court in Rakesh Jain Vs. Suresh Kumar Kohli & Anr., 2014 (1) AD (Delhi) 752 to buttress his point that in view of section 19 (b) of Hindu Succession Act 1956, after the death of a tenant who dies intestate and has two or more legal heirs, they succeed to the property as tenant in common and not as joint tenants. In the said judgment, rulings of aforesaid two judgments in Rajender Kumar Sharma Vs. Leelawati and in Kanji Manji case (cited supra) were discussed and it was observed by the Hon'ble Delhi High Court that in the said judgments, the right vested in Section 19 of Hindu Succession Act 1956 has not been discussed or distinguished and it was held that tenancy devolves upon the legal heirs of deceased tenant as a tenancy in common and not joint tenancy and rights of each legal heir being a tenant in common need to be adjudicated for the effective termination of the tenancy.
13. Though the Ld. Counsel for defendant no. 1 argued that said judgment is based in its own facts and is not applicable to the CS No. 289/15 Bimla Vs. Gajraj Singh & Ors. Page 11 of 17 facts in question, but at this stage, in view of said judgment relied upon by the Ld. Counsel for plaintiff, after the death of original tenant, the tenancy devolves upon the legal heirs in common and therefore impleadment of plaintiff being one of the legal heir was necessary as she inherited the tenancy rights as a tenant in common along with her sons after the death of Sh. Nand Kishore Saini in view of the case pleaded by defendant no. 1 in the eviction petition that Sh. Nand Kishore Saini was the tenant. Hence, prima facie, the plaintiff has been able to show that the eviction order dated 16.07.2013 passed in the eviction petition filed by defendant no. 1 is not binding upon her in the absence of her impleadment as a legal heir of late Sh. Nand Kishore Saini and her rights has not been adjudicated upon.
14. Ld. Counsel for defendant no. 1 has submitted that the plaintiff is deriving her title through original tenant Sh. Nand Kishore Saini who was in the knowledge of the rent receipts in the year 2010 as he had filed leave to defend application in the year 2010 disputing the rent receipts and as such right to seek declaration of rent receipts as forged and fabricated had accrued to him in the year 2010. He argued that the present suit seeking declaration of rent receipts as forged and fabricated should have been filed within three years from date of knowledge of rent receipts by Sh. Nand Kishore Saini , but the present suit has been filed beyond the period of limitation and hence present CS No. 289/15 Bimla Vs. Gajraj Singh & Ors. Page 12 of 17 suit is hit by Article 56 of Limitation Act.
15. To this, Ld. Counsel for plaintiff has vehemently argued that Sh. Nand Kishore Saini had died during the pendency of eviction proceedings and since plaintiff was not impleaded in the eviction proceedings, she was under the impression that eviction proceedings stood abated and therefore there was no occasion for her to seek declaration of rent receipt as forged and fabricated. Ld. Counsel further argued that when the plaintiff came to know about the passing of the eviction order, she has filed the present suit and same is within limitation.
16. Ld. Counsel for defendant no. 1 in rebuttal has argued that plaintiff was in the knowledge of the eviction petition throughout the eviction proceedings and she could have approached the court for her impleadment, but she has not done so.
17. However, in view of controversy involved in the present case, it will have to be seen after the trial as to whether the plaintiff was in the knowledge of the pendency of the eviction proceedings or not and further that when the right to seek declaration of rent receipts as forged and fabricated accrued to her, which are disputed question of facts and requires trial and hence at this stage, it cannot be said that suit is barred by limitation.
18. Ld. Counsel for defendant no. 1 has also argued that CS No. 289/15 Bimla Vs. Gajraj Singh & Ors. Page 13 of 17 present suit has been filed by the plaintiff in collusion with her sons. He submitted that the eviction order has been upheld by the Hon'ble Delhi High Court in the revision petition and when the defendant no. 1 has approached the court for execution of eviction order, the sons of deceased tenant Sh. Nand Kishore Saini have got the present suit filed through the plaintiff in order to stall the execution proceedings.
19. Again these contentions as to whether the present suit has been filed by the plaintiff in collusion with her sons to save the suit property as contended by defendant no. 1 or whether the defendant no. 1 in collusion with sons of Sh. Nand Kishore Saini deliberately did not implead the plaintiff in order to obtain collusive decree as alleged by the plaintiff are contentious disputed facts and same requires trial.
20. Ld. Counsel for defendant no. 1 has also argued that plaintiff has also filed the objections in the execution before the Rent Controller and since the objections are to be decided as a suit, therefore the present suit would not be maintainable in view of pendency of said objections. He further argued that findings of the Rent Controller regarding relationship of landlord and tenant has attained finality as Hon'ble High Court has also dismissed the revision petition against eviction order and therefore eviction order is liable to be executed.
CS No. 289/15 Bimla Vs. Gajraj Singh & Ors. Page 14 of 17
21. Of course, the objections filed u/o 21 rule 99 to 101 CPC in the execution are to be decided like a suit, but the court of Rent Controller has no jurisdiction to decide the title of the parties in case there is dispute of title between the parties. Reliance may be placed upon Municipal Corporation of Delhi Vs. Harish Chander, 2004 (115) DLT 481.
22. In the present case, there is dispute of title between the parties. The plaintiff is claiming to be one of the coowner of the suit property being legal heir of late Sh. Nand Kishore Saini, who as per the plaintiff became the absolute owner of the suit property by way of continuous, uninterrupted and hostile claim of ownership. On the other hand, the defendant no. 1 is also claiming his ownership over the suit property stating that suit property belonged to his forefathers and same has fallen into his share in a mutual settlement amongst his family members.
23. As the court of Rent Controller has no power to decide the title of the parties and hence this plea of defendant no. 1 that since the plaintiff has filed objections in the execution which is to be treated as separate suit and in view of same present suit is not maintainable does not prima facie appears to be tenable.
24. So far the contention of defendant no. 1 that findings of Rent Controller regarding relationship of landlord and tenant has CS No. 289/15 Bimla Vs. Gajraj Singh & Ors. Page 15 of 17 attained finality is concerned, since the plaintiff was not a party in the said eviction proceedings, therefore same appears to be not binding and rights of the plaintiff are required to be adjudicated upon.
25. Furthermore, the plaintiff has heavily relied upon the revenue records wherein her late husband Sh. Nand Kishore Saini has been shown as occupant in the suit property throughout and the suit property has been shown as shamlat. It is also case of the plaintiff that there is not a single document of ownership in favour of defendant no. 1. Defendant no. 1 though has contended that revenue records can be manipulated and the person who has given the certificate of the revenue records has stated that he does not know the Urdu language and therefore no reliance can be placed upon these revenue records.
26. It is a matter of record that defendant no. 1 has not placed on record any single title document and has solely claimed his ownership on the basis of rent receipts which the plaintiff has been claiming forged and fabricated. The revenue records placed on record by the plaintiff, prima facie, shows the suit property as shamlat property and Sh. Nand Kishore Saini has been shown in occupation of the suit property and name of defendant no. 1 or his forefather do not find mention in the said revenue records. In the absence of any title documents in favour of defendant no. 1, it is again a matter of trial as to whether the suit property belonged to the forefathers of defendant CS No. 289/15 Bimla Vs. Gajraj Singh & Ors. Page 16 of 17 no. 1 and same had fallen into his share and Sh. Nand Kishore Saini, the husband of the plaintiff was inducted as a tenant by the defendant no. 1 or that the suit property was held by Sh. Nand Kishore Saini in his own rights through continuous, uninterrupted and hostile possession and he has perfected his title by way of adverse possession.
27. In view of aforesaid facts and circumstances, since rights of the plaintiff requires to be adjudicated upon and further there are several disputed question of facts as discussed herein above which requires trial and balance of convenience lies with the plaintiff, therefore possession of the plaintiff deserves to be protected and in case the plaintiff is dispossessed it will cause irreparable loss and injury to the plaintiff as well as multiplicity of litigation between the parties. Hence, application moved by the plaintiff is allowed and the defendant is restrained from enforcing the judgment/decree dated 16.07.2013 passed by Ld. Rent Controller in Eviction Case No. 214/2009 titled as "Gajraj Singh Vs. Nand Kishore Saini (since deceased) through his legal heirs" during the pendency of the suit.
Nothing stated herein shall tantamount to my expression on the merits of the case.
Announced in the open Court (Balwant Rai Bansal)
th
on 11 January, 2016 Addl. District Judge 02 (SouthEast),
Saket Courts, New Delhi
CS No. 289/15
Bimla Vs. Gajraj Singh & Ors. Page 17 of 17
CS No. 289/15
Bimla Vs. Gajraj Singh & Ors.
11.01.2016
Present: None for the plaintiff.
Defendant no. 1 in person.
Vide my separate order of even date, the application moved by plaintiff u/o 39 rule 1 & 2 CPC is allowed.
Case is now fixed for replication, if any, admission/denial of documents and framing of issues for 19.02.2016.
(Balwant Rai Bansal) ADJ02/SE/Saket/New Delhi 11.01.2016` CS No. 289/15 Bimla Vs. Gajraj Singh & Ors. Page 18 of 17