Delhi District Court
R/O N12 vs Moinuddin Siddiqui @ M.M.Siddiqui on 4 May, 2011
IN THE COURT OF SH. R.K. GAUBA: DISTRICT JUDGE
(SOUTH) - CUM - ADDITIONAL RENT CONTROL
TRIBUNAL, SAKET, NEW DELHI
RCA No. 01/2011
ID No.: 02406C0000762011
Asha wife of Sh. Moolraj
R/o N12, (First floor) Greater Kailash,
PartI, New Delhi 11 00 48 ... Appellant.
Versus
1. Moinuddin Siddiqui @ M.M.Siddiqui,
s/o Sh. Azizuddin Siddiqui
R/o (i) F142, 4th Floor, Nafeez Road,
Batla House Extension, Jamia Nagar,
New Delhi 11 00 20
(ii) Chicken Handicrafts
B13/2, 2nd Floor, Okhla Industrial Area,
PhaseII, New Delhi 11 00 20.
2. Smt. Sulalitha Sharma,
w/o Sh. G. B. Sharma,
R/o First Floor, S146, Greater Kailash
PartI, New Delhi 11 00 48.
RCA No. 01/2011 Asha Vs. Moinuddin Siddiqui & anr. 1 of 9
3. Sh. G. B. Sharma,
son of late Sh. H.B. Sharma,
R/o First Floor, S146, Greater Kailash,
PartI, New Delhi 11 00 48. ... Respondents.
Instituted on:04.01.2011
Judgment reserved on: 04.05.2011
Judgment pronounced on :04.05.2011
J U D G M E N T
1. This appeal under Section 38 of Delhi Rent Control Act, 1958 (hereinafter referred to as "DRC Act") challenges the correctness, propriety and legality of the order dated 18.11.2010 passed by Sh. Balwant Rai Bansal, Additional Rent Controller (South) (hereinafter, referred to as "the ARC") in eviction petition now registered as E140/09/06, whereby the application of the appellant under Order 12 Rule 6 CPC was dismissed.
2. Though the background facts are set out in sufficient detail in the impugned order, the same may be summarised here to the extent relevant in the present proceedings.
3. It is admitted case of both sides that property bearing no. S146, Greater Kailash PartI, New Delhi 110048 was owned by one Mr. D. D. Singh. The said Mr. D. D. Singh during his life time RCA No. 01/2011 Asha Vs. Moinuddin Siddiqui & anr. 2 of 9 had inducted Mr. M. M. Siddiqui @ Moinuddin Siddiqui son of Azizuddin Siddiqui as tenant for residential purposes in 2nd floor (Barasati) portion of the said property in terms of permission taken under Section 21 of DRC Act from the court of ARC vide order dated 02.04.1976. The tenancy in respect of said Mr. M.M. Siddiqui was initially for a period of two years only but it came to be extended periodically, with the consent of both sides.
4. It is undisputed case that Mr. M. M. Siddiqui left the tenanted premises in April, 2003. While the stand of said Mr. M. M. Siddiqui in the affidavit filed before the learned ARC is that he had handed over physical possession of the said premises on 9/10th April, 2003, it is the case of the respondents no.2 and 3 herein that this event occurred on 11.04.2003.
5. From the pleadings, it is further undisputed fact that the first floor portion of the property has been let out by the original owner Mr. D.D. Singh in favour of respondent no.3 herein (G. B. Sharma) in the year 1999 initially at the monthly rent of Rs. 6000/ per month which came to be later increased to Rs. 6300/ per month. Respondent no.2 is the wife of the said respondent no.3. It appears that there was another tenant on the ground floor in the rear portion in the property. The said tenant vacated RCA No. 01/2011 Asha Vs. Moinuddin Siddiqui & anr. 3 of 9 the said portion around 2006 or so and the possession of the said part of the property is stated to be with the appellant.
6. The original owner one named Mr. D. D. Singh died on 21st July, 2001. It is undisputed on both sides that Mr. D. D. Singh was survived by 14 legal heirs including one named Mr. Manohar Lal. The said legal heirs were impleaded as defendants no.1 to 14 in civil suit (OS) no. 1132 of 2003 taken out by respondent no.2 which is pending adjudication before Hon'ble High Court of Delhi in which she, interalia, claimed title to the aforementioned property on the basis of agreement to sell executed by the said legal heirs of Mr. D.D. Singh in her favour, relying on the doctrine of part performance under Section 53A of Transfer of Property Act, on the basis of pleadings that she had made part payment in the sum of Rs. Six lacs by way of different pay orders/bank drafts to the legal heirs (out of the total sale consideration settled at Rs. Forty lacs) and further that the possession of the premises was handed over to her by the said legal heirs of Mr. D. D. Singh through one Mr. S. K. Abrol impleaded as defendant no.15 in the civil suit described as property dealer, who had acted at the instance and on behalf of the sellers.
7. The appellant brought an eviction petition on the grounds under RCA No. 01/2011 Asha Vs. Moinuddin Siddiqui & anr. 4 of 9 Section 14(1)(b)(d) &(h) of DRC Act in respect of the tenancy in favour of Mr. M.M. Siddiqui, interalia, on the strength of she having purchased the property in question from Mr. Manohar Lal and others, the legal heirs of Mr. D. D. Singh, through an instrument of sale dated 15.05.2004, duly registered in the office of SubRegistrar at Mehrauli, New Delhi on 15.05.2004 itself. It was pleaded in the petition that the tenant in respect of the second floor (Barasati) portion of the property had sublet, assigned or otherwise parted with possession thereof in favour of respondent no.2 and 3 who were in actual physical possession of the premises and were illegally claiming to be owner thereof. It was also pleaded that the said Mr. M. M. Siddique had not used the tenanted premises for the period of six months preceding the filing of the petition for eviction and also had acquired premises of suitable residential accommodation in Jamia Nagar, New Delhi, address of which was described in the petition. Respondents no.2 and 3 were impleaded in the said eviction proceedings having been described as subtenants and Mr. M.M. Siddiqui impleaded as respondent no.1.
8. The trial court record further shows that respondent no.1 Mr.M. M. Siddiqui filed a short affidavit dated 19.01.2005 stating, RCA No. 01/2011 Asha Vs. Moinuddin Siddiqui & anr. 5 of 9 interalia, that he had handed over the actual physical possession of the tenanted premises to Mr. S. K. Abrol, the estate agent and thereafter he had no subsisting right, title or interest in the property in question. As pointed out by the cousnel for the appellant, the address given by respondent no.1 in his short affidavit is the same as the one which was mentioned in the eviction petition as of the property acquired by the said person.
9. It may be added here that after having filed the said affidavit, Mr. M. M. Siddiqui would not appear/contest the eviction petition thereafter.
10.Respondents no.2 and 3, on the other hand, have contested the eviction petition through written statement filed on 19.01.2005 in which they would, interalia, plead that the property has been purchased by respondent no.2, for consideration, from the legal heirs of Mr. D. D. Singh. Reference has also been made to civil suit filed by respondent no.2 against legal heirs of Mr. D. D. Singh pending in the Hon'ble High Court in which Mr. S.K. Abrol, the the estate agent who is claimed to have handed over the possession of the property in question to respondent no.2 at the behest and with the consent of legal heirs of Mr. D. D. Singh has also been impleaded as defendant no.15, with the RCA No. 01/2011 Asha Vs. Moinuddin Siddiqui & anr. 6 of 9 petitioner before the ARC added as defendant no.16. The prayer in the civil suit, interalia, as to declare the sale deed, on the basis of which the petitioner before the ARC was claiming title, to be declared null and void.
11.Basically against above back drop, the appellant moved an application under Section 12 Rule 6 CPC. His contention was that the illegal parting of possession without the consent of the landlord in writing having been brought out through pleadings of the respondent, an eviction order under Order 12 Rule 6 CPC on the ground of subletting under Section 14(1)(b) DRC Act deserves to be passed. It was also contended that the facts brought out in the pleadings and the material filed by respondents no.2 and 3 itself shows that the claim of respondent no.2 having purchased the property through the agreement to sell did not deserve to be acted upon. It was further contended that the respondent no. 2 having clearly shown through his short affidavit he having acquired another residential property and having not used the tenanted premises since April, 2003, the decree of eviction under Section 14(1)(d) & (h) DRC Act was also called for.
12.Learned ARC was not impressed with the above said contentions. He dismissed the application under Order 12 Rule RCA No. 01/2011 Asha Vs. Moinuddin Siddiqui & anr. 7 of 9 6 CPC on the ground there are no clear or unambiguous admissions on the part of respondent no.1 regarding subletting of the suit premises in favour of respondents no.2 and 3. He also observed, interalia, that the case of the respondent no.2 that he had acquired title on the basis of agreement to sell in terms of a transaction arranged through Mr. S. K. Abrol, authorised representative of legal heirs of Mr. D. D. Singh required to be put to trial.
13. The appeal, challenging the above order, has been resisted by respondents no.2 and 3.
14. I have heard both sides at length. I have gone through the record.
15.While I find some substance in the submissions of the appellant that the material on record does not show in any manner that Mr. S. K. Abrol was "an authorised representative of the legal heirs of Mr. D. D. Singh" and further that the agreement to sell on the basis of which respondent no.2 is claiming title is also yet to be shown the light of the day, in my opinion, eviction order on the basis of "admissions" under Order 12 Rule 6 CPC, however, cannot be allowed for one basic reason. The question of title of the appellant visavis the property in question requires to be decided on the basis of evidence in as much as RCA No. 01/2011 Asha Vs. Moinuddin Siddiqui & anr. 8 of 9 the respondents no.2 and 3 have challenged the same, not only in the eviction petition at hand but also in the civil suit pending adjudication before the Hon'ble High Court.
16.It is true that Hon'ble High Court has not stayed the proceedings in the eviction petition filed by the appellant. It is also true that the application of respondent no.2 for stay of eviction proceedings under Section 10 CPC was also disallowed by the learned ARC vide his order dated 04.10.2008. But then, the only effect of the said situation is that the proceedings before the learned ARC are to continue. As far as the title of the appellant is concerned, there being no clear or unambiguous admission on the part of the respondents, there is no case made out for an order of eviction under Order 12 Rule 6 CPC.
17.For the foregoing reasons, the appeal does not deserve to be allowed and is dismissed.
18. The trial court record be returned with copy of this judgment.
19.Appeal file be consigned to Record Room.
Announced in open Court today on this 4th day of May, 2011 (R.K. GAUBA) District Judge (South) - cum -
Additional Rent Control Tribunal, Saket, New Delhi.
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