Indian Kanoon - Search engine for Indian Law

Delhi District Court

Tis Hazari Court vs Smt. Shahjahan Begum on 28 April, 2012

                                 1                   CS No. 682/12

IN THE COURT OF SH. SUSHANT CHANGOTRA: CIVIL JUDGE(WEST)
                   TIS HAZARI COURT, DELHI


Suit No. 682/12


Shri Jamil­ur­Rehman
S/o Late Sh. Habib­ur­Rehman,
R/o 529­530, Gali Matia Mahal,
Jama Masjid, Delhi­110 006.
                                             .....Plaintiff
Versus


1. Smt. Shahjahan Begum
  Wd/o Late Sh. Bashir Ahmed,
  R/o 1154, Churi Wallan,
  Jama Masjid, Delhi­110 006.


2. Shri Zamiruddin @ Lachhi,
3. Shri Zahiruddin,
4. Shri Zaffar,
5. Shri Saghiro,
6. Shri Gulzaro,
7. Shri Anwar,


All the defendants no. 2 to 7 sons of 
Sh. Bashir Ahmed and 
R/o 1154, Churi Wallan, 
Jama Masjid,
Delhi­110 006.
                                             2                              CS No. 682/12

                                                                  ..... Defendants


                                     Date of filing of the Suit :01/09/2000
                                     Date of decision              :28/04/2012 


Suit for Permanent Injunction


JUDGMENT

1. The case of the plaintiff in brief is that the plaintiff is the Owner/Landlord of the property no. 1154, Churi Wallan, Jama Masjid, Delhi­110 006. He purchased the same from Sh. Rahat Kamal Hassan Khan and others. The defendant no. 1 is the tenant in respect of one room, common latrine and common passage on the first floor in the said property @ Rs. 40/­ per month. Defendants no. 2 to 7 are the sons of defendant no. 1. Defendant no. 1 used to pay rent to previous owner Sh. Rahat Kamal Hassan Khan. After the purchase of suit property by the plaintiff, the defendant no. 1 neither paid nor tendered the rent to the plaintiff despite repeated requests. He created several problems for the plaintiff and an FIR was registered against him. The defendant in connivance with each other and trying to erect a pillar on the 3 CS No. 682/12 ground floor of property no. 1141, Bazar Matia Mahal, Jama Masjid, Delhi which is just below the tenanted premises to defendant no. 1 on 27­28/08/2000 at about 02.30 a.m. The defendants entered in the property no. 1141 and tried to erect the pillar. The police was informed and the defendants were restrained from raising the pillar. The defendants wanted to construct illegal and un­authorized construction and convert the tenanted premises into a multi­storeyed building.

2. On 31/08/2000 the defendants once again tried to construct illegal construction in the suit property. The plaintiff prayed that the decree may be passed for permanent injunction restraining the defendants, their agents, attorneys, associates etc. from raising any illegal and unauthorized construction in the suit property. Plaintiff also prayed that they be also restrained from parting the possession of the suit property and from disturbing the plaintiff in peaceful enjoyment of possession of property no. 1143, ground floor, Bazar Matia Mahal, Jama Masjid, Delhi as well as in two portions of the first floor of property no. 1154, Churi Walan, Jama Masjid, Delhi.

3. The defendant appeared and filed the written statement taking preliminary objections that suit is not maintainable as the plaintiff can not claim the ownership by virtue of sale deed dated 25/02/1991 executed by Sh. Rahat Kamal Hassan Khan and others in respect of property no. 1154, Churi Walan, Jama masjid, Delhi which is the tenanted premises of defendants. The suit property is a waqf of Sh. K.B. Nawab Abul Hassan Khan (registered), Delhi. Raht Kamal Hassan Khan and others are simply beneficiary of said wakf. The wakf is in­alienable. The sale deed therefore, is barred by the act ibid. The defendant no. 1 was the tenant of the said wakf and she never recognised the plaintiff as owner/landlord. Plaintiff is not vested with any right, title or interest of the said property i.e tenanted premises. On merits the averments of the plaintiff regarding ownership of suit property were denied. It was asserted that defendant is the tenant under wakf. Originally the entire first floor and second floor with terrace and super structure was under the tenancy of late Sh. Niaz Ahmed @ Rs. 10/­ per month. Said late Sh. Niaz Ahmed was the father of defendant no. 1 and after his death it was accordingly inherited by 5 CS No. 682/12 the defendant no. 1. It was also asserted that the rent was always paid to the wakf/ muttawali of wakf including Rahat Kamal Hassan Khan. The remaining averments of the plaint were denied. It was emphasized that the premises at first floor no. 1154 required immediate repairs because the plaintiff had damaged the ground floor portion i.e property no. 1141. The said repairs were not possible unless the plaintiff effected repairs by recreating supporting walls and pillars at ground floor. The building department of MCD had no objection to raising of pillars by way of repairs. The plaintiff allowed the defendant to carry out necessary repairs at ground floor at their own expenses, but again refused to co­operate. The remaining averments were denied.

4. The plaintiff filed replication to the written statement and denied the contents of the written statement. It was asserted that the suit property has been rightly purchased from the previous owners. The contents of the plaint were asserted.

5. On the basis of pleadings, following issues were framed:

1. Whether the plaintiff has no locus­standi to file the suit? OPD.

2. Whether the plaintiff cannot claim the ownership in respect of the suit premises? OPD.

3. Whether the plaintiff is entitled for decree of permanent injunction restraining the defendants from raising illegal and un­ authorized construction over the suit property? OPP.

4. Whether the plaintiff is entitled for permanent injunction restraining the defendants from parting with possession in respect of suit property? OPP.

5. Whether the plaintiff is entitled for decree of permanent injunction restraining the defendants from disturbing etc. in peaceful enjoyment and possession of suit property? OPP.

6. Relief.

6. In support of this case, the plaintiff examined himself as PW1. He tendered his affidavit Ex. P1 alongwith site plan Ex. PW1/1, Sale deed Ex. PW1/2. He also examined PW2 Jawed Malik. He tendered his affidavit Ex. 2A. Evidence of the plaintiff was closed on 26/05/2005.

7. On the other hand, the defendant examined DW1 Sh. Jafar Ahmed as DW1 and he tendered his affidavit Ex. DW1/A and documents exhibited as Ex. DW1/1 to Ex. DW1/4 i.e. rent receipts, complaint given to SHO as Ex. DW1/5 & letter to MCD Ex. DW1/6.

8. I have heard the arguments. Ld. Counsel for the plaintiff 7 CS No. 682/12 vehemently argued that the plaintiff has proved on record the sale deed Ex. PW1/2. The DW1 in his cross­examination admitted that he used to pay rent to Humayun Kamal. The plaintiff purchased the property from several persons including Humayun Kamal. The question of title cannot be raised in a suit for permanent injunction. The defendant has not filed for suit for declaration challenging his title in any other case. No complaint was made with Wakf board or police that the sale deed is forged. The defendant is not saying that they will not raise any constructions and the rent receipts are forged and fabricated. Thus the suit of the plaintiff may be decreed.

9. On the other hand, Ld. Counsel for the defendant argued that the suit is not maintainable as plaintiff is not the owner of the property. The rent receipts show that the property belongs to wakf and it can not be alienated. The defendant never admitted the plaintiff to be landlord. Thus, there is no merit in this suit and it may be dismissed.

10. I have considered the arguments and gone through evidence on record. My issues with findings are given as below:

ISSUE. 1 to 5 8 CS No. 682/12

11. All the issues are inter­connected. The onus to prove his case lied on the plaintiff, thus these issues are taken up together. In Addagada Raghavamma and Anr vs Addagada Chenchamma and Anr 1964 AIR 136, 1964 SCR (2) 933, the Hon'ble Apex Court has held that, "There is an essential distinction between burden of Proof and onus of proof, burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts." The plaintiff is seeking permanent injunction against the defendant on the basis that the defendants were tenant under the previous owners of the property from whom the plaintiff purchased the suit property. The defendants on the other hand, have alleged that the vendors of the sale deed Ex. PW1/2 were not the owners. The property belongs to a registered wakf. The vendor namely Rahat Kamal Hassan Khan was the muttawali of the wakf and the vendors could not alienate the property in favour of the plaintiff. Thus, in order to establish his right to seek relief of permanent injunction, it was obligatory for the plaintiff to establish that he is the owner of the suit property.

12. In this regard Section 51 or the wakf Act, 1995 is very 9 CS No. 682/12 important. It creates an embargo that where the alienation of wakf property is without sanction of the wakf board, the alienation of property is a void. In the present case the plaintiff has proved on record the receipts Ex. DW1/1 to Ex. DW1/4. The Ld. Counsel for the plaintiff argued that the receipts are forged and therefore the said receipts cannot be relied upon, however, no independent evidence much less to say the handwriting expert has been examined to prove that these are forged documents.

13. Perusal of the said receipts Ex. DW1/41 to Exh. DW1/4 shows that these have been issued by Muttawali of wakf with respect to property no. 1154. The said receipts have been issued by Humayun Kamal Hassan Khan. These receipts prove that Humayun Kamal Hassan Khan was the muttawali of wakf.

14. Though it has been not argued, but I have also given my thoughtful consideration to Section 116 of the Indian Evidence Act. Section 116 of IEA, estoppes the tenant from disputing the title of landlord. However, s per settled law the tenant is not prohibited from challenging the title of subsequent purchaser.

15. Thus in the present suit a valid cloud was raised regarding the title of the plaintiff. In Anathula Sudhakar Vs. P. Buchireddy, 10 CS No. 682/12 AIR 2008 SC 2033, the Hon'ble Supreme Court has held with that, "where the valid cloud is raised over plaintiffs title and he does not have possession, a suit for possession, with or without a consequential injunction is the remedy. As the suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. But in cases where de­jure possession has to be established on the basis of title to property the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession."

16. Thus in view of the aforesaid decision, suit for injunction filed by the plaintiff is not maintainable. The arguments of the counsel of the plaintiff that defendant should have sought declaration regarding sale deed of the plaintiff is completely without merits. The title of the plaintiff has been put under the scanner and the defendant is not claiming any title in the suit property. Thus there was no occasion for the defendant to file any suit for declaration.

17. In view of the aforesaid discussion, since in the suit of injunction complicated issues regarding the declaration of title cannot be decided, therefore suit is not maintainable and the 11 CS No. 682/12 issues are accordingly decided in favour of the defendant and against the plaintiff.

RELIEF

18. In view of the findings given on all the issues, since the suit of the plaintiff is not maintainable in the given form, therefore, it is dismissed without Costs. Decree sheet be prepared and file be consigned to Record Room after due compliance.

Announced in the open court                   (SUSHANT CHANGOTRA)
on 28.04.2012                                 Civil Judge­6 (West) Delhi