Delhi District Court
Smt. Nafeesa Begum (Since Deceased vs Suit No.44/01/97 1/22 on 27 July, 2012
1
IN THE COURT OF SH. N.K. MALHOTRA : ASCJ (NORTH), TIS
HAZARI COURTS:DELHI.
Suit No:44/01/97.
1. Smt. Nafeesa Begum (since deceased
W/o Sh. Hajjiallahwalah (deceased)
Through her legal heirs:
a. Mohd. Shakeel Son
b. Mohd. Shamim Son
c. Mohd. Quddus Son
d. Mst. Shehnaz Daughter
e. Mst. Andaaz Daughter
f. Mst. Shinni Daughter
g. Mst. Chand Bibi Daughter
h. Mst. Kehkashan Daughter
i. Mst. Naaz Daughter
All R/o 507, Matia Mahal,
Jama Masjid
Delhi06.
2. Sh. Mohd. Quddus
S/o Late Hajjiallahwalah,
R/o H. No.507, Matia Mahal,
Jama Masjid
Delhi06.
..........Plaintiffs
Versus
Suit No.44/01/97 1/22
2
Sh. Mohd. Islam
S/o Late Abdul Salam
R/o H. No.507, Matia Mahal,
First Floor, Jama Masjid
Delhi06.
...........Defendant
Date of Institution of the suit : 11.06.1997
Date on which order was reserved : 27.07.2012
Date of decision : 27.07.2012
SUIT FOR DECLARATION AND INJUNCTION.
:JUDGMENT:
1. Vide this judgment, I shall decide a suit for declaration and mandatory injunction filed by the plaintiff against the defendant.
2. The essential facts for disposal of the suit as per the plaint are that plaintiff is a peace loving citizen of India and residing in House No.507, Matia Mahal, Jama Masjid, Delhi with her family members. The plaintiff no.2 is son of plaintiff no.1. Plaintiff no.1 is the owner and in possession of a shop No.3686 of MCD situated at Dargah Hazrat Sayed Shah Saberi Suit No.44/01/97 2/22 3 Ali Chisti Sabri Darya Ganj, Delhi as tenant of suit premises. The suit premises is situated under the management of its Sajjada Nashin and Mutawali Sayed Shah Khursheed Ahmad Saveri and its rent Rs.100/ per month is paid by her through rent receipts regularly and continuously. The suit premises is for commercial purpose and the aforesaid shop contains four kotheris, a big dallan and a courtyard. The suit premises is under the tenancy of plaintiff as per Will executed by her late husband Sh. Haji Allahwallah dated 4.8.1995 prior to his death. After execution of the Will, husband of the plaintiff expired on 18.11.1995 and after his death, the plaintiff is in continuous possession of the suit premises and she is paying Rs.100/ per month regularly to its Mutawali through rent receipts. It is also averred that prior to death of husband of plaintiff Haji Allahwallah was a tenant of the premises and in possession of the suit premises till his death. The father of the defendant Sh. Abdul Salam was partner in the business of fruits and vegetables being sold at the courtyard of the suit premises. They were partners in the business and the father of Suit No.44/01/97 3/22 4 the defendant was not partner in the suit premises. The partnership was terminated by the husband of the plaintiff vide an application to the Deputy Commissioner of Police on 9.3.1993. The defendant had no right to interfere in the aforesaid business as the partnership has been terminated vide an application. That the plaintiff requested the defendant not to make any kind of hindrance in the possession of the plaintiff of the tenanted premises. The defendant threatened the plaintiff to capture not only the income from the business but also to participate in the shop no.3686. The defendant has no right to interfere in the tenancy of the suit premises. The plaintiff is aged about 70 years. She is patient of Asthma and is unable to run the shop smoothly. The plaintiff no.2 is running the shop of fruits and vegetables on behalf of plaintiff no.1. Defendant has never taken interest in the business of fruits & vegetables. It is also averred that the defendant along with his companions came at the shop on 6.6.1997 and demanded his share. On denial, the fruits & vegetables were thrown out by him on the road and they threatened to vacate the suit Suit No.44/01/97 4/22 5 premises. It is prayed by the plaintiff that the defendant and his associates be restrained not to interfere in the peaceful possession of the suit premises of the plaintiffs along with the possession of the shop of the fruits & vegetables in the said premises ad recovery of profit from the aforesaid business. It is also prayed that the partnership be declared ab initio.
3. The defendant filed written statement to the amended plaint and took the preliminary objection that the suit of the plaintiff is not maintainable as defendant is one of the heir and successorininterest in the suit property. It is the admitted case of the plaintiffs in the Hon'ble High Court of Delhi titled as "Mohd. Islam v. Mst. Nafisa Begum & Ors." that the shop in suit was originally taken on rent by Sh. Sheikh Kallan and after his death, the suit premises devolved to his heirs namely Abdul Gaffar and Abdul Majid. Sh. Abdul Gaffar had two sons namely Abdul Salam and Haji Allahwallah. Sh. Abdul Majid had one son namely Mohd. Sultan. After Suit No.44/01/97 5/22 6 the death of both the legal heirs of Sheikh Kallan namely Abdul Gaffar and Abdul Majid, their interest in the shop in suit devolved upon their legal heirs ie. Sh. Abdul Salam and Haji Allahwallah both sons of Abdul Gaffar and Mohd. Sultan son of Abdul Majid. After the death of Abdul Salam, his interest devolved upon his son Mohd. Islam who is defendant in the present suit. The interest of Haji Allahwallah devolved upon his legal heirs namely Mohd. Shakil (son), Mohd. Kudus (son), Mohd. Shamin (son) and Nafisa Begum (wife). The present suit is between legal heirs of Haji Allahwallah on one side and plaintiffs & defendant on other side. The tenancy rights in the commercial premises are heritable on the heirs and successors of the original tenant, therefore, both the parties are the joint tenants by operation of law. It is also averred that defendant was in physical possession of the shop in suit on the date of filing of the present suit. It is admitted case of both the sides that the business was being run in partnership between the predecessors of both the parties ie. Haji Allahwallah and Abdul Salam vide partnership deed Suit No.44/01/97 6/22 7 dated 20.10.1987. According to the Clause 9 of the said partnership deed, the business was to continue even after the demise of the original partner. The relationship of partnership between the heirs and successors shall be deemed to have continued after the death of the original partner. It is also averred that after the death of respective original partner, the partnership continued between Haji Allahwallah and the present defendant till the death of the former. Even after the death of Haji Allahwallah, the business continued in partnership between the defendant and heirs and successors of Haji Allahwallah. It is also averred that Haji Allahwallah died in 1985. After filing the present suit, the plaintiffs tried to obtain an adverse order against the defendant. After having failed to take any order, the plaintiffs filed another suit No.35/97 on the same cause of action. The plaintiffs concealed the fact of order and Sh. Shahabuddin, Ld. Civil Judge dismissed the application under Order XXXIX Rule 1 & 2 CPC vide order dated 11.12.1997. The plaintiffs had taken an exparte order from the appellate court on 27.8.1998. The order Suit No.44/01/97 7/22 8 was set aside on the application moved by the defendant before the Appellate Court vide order dated 9.2.1999. After setting aside exparte order, the application for restoration of suit was refused by the Ld. Civil Judge. Therefore, defendant filed a petition in the Hon'ble High Court of Delhi . The said petition was decided by the Hon'ble High Court of Delhi on 24.8.2006. In accordance with the order of the Hon'ble High Court of Delhi, the defendant was reinstated and put in the possession of the shop in suit with the help of the police. The defendant also filed a suit bearing No.26/07 in the court of Sh. Sonu Agnihotri, ld. Civil Judge, Delhi against the landlord Sh. Badar Hussain Sabri for the grant of relief of mandatory injunction. The landlord appeared in the court and admitted the claim on 3.4.2007 in the court and issued a receipt after accepting the payment of rent of Rs.225/ per month as 25% of the share of the tenancy rights of the defendant in the suit. The suit no.35/97 filed by the plaintiffs was dismissed by the learned Civil Judge. The present suit is barred by limitation. The plaintiff has no locus standi to file the present Suit No.44/01/97 8/22 9 suit. In reply on merits, similar averments were made and the contents of the plaint were denied. It is averred that the property in question is under the tenancy and possession of three partners ie. plaintiff no.1 having 25% partnership both in business and property in question. The defendant having 25% partnership both in the business and in property in question and the remaining 50% partnership is of Malik Mohamad Sultan son of Abdul Majid and he has partnership both in business and in property in question and the above mentioned partnership between the plaintiff no.1 and the defendant and one Malik Mohamad Sultan is inherited and continuous since the time of ancestors and the tenancy rights of all the partners and the partnership in business of fruits & vegetables is inherited. It is also averred that Malik Mohamad Sultan was the only son of Ahmed Majid and remaining 50% shares and tenancy rights were inherited by Abdul Gaffar and the plaintiff and the defendant are having share of 25% each. Dismissal of the suit is prayed by the answering defendant.
Suit No.44/01/97 9/22 10
4. The plaintiffs filed replication to the written statement filed by defendant wherein the allegations made in the written statement were controverted and the averments made in the plaint were reiterated.
5. Vide order dated 14.5.07, an application under Order VI Rule 17 CPC of the plaintiff was allowed subject to costs of Rs.1000/. Vide order dated 23.7.07, defendant was allowed to file amended written statement. I have perused the order dated 23.7.07. In the said order, my learned predecessor has observed that "I am of the considered view that the defendant has incorporated several facts which is not result of amended plaint." It was held by my learned predecessor that "Several facts, whatever happened during trial of the case cannot be incorporated in the amended written statement which was the result of the amended plaint"
and he was not allowed to place the earlier written statement. The amended written statement was filed on 23.7.2007.Suit No.44/01/97 10/22 11
6. On 7.4.2007 the following issues were framed on the basis of the pleadings of the parties:
i) Whether the plaintiff is entitled for perpetual injunction as claimed in the plaint? OPP.
ii) Relief.
On 6.5.2011, counsels for both the parties made statement that they had already stated on 13.2.2007 that they have no objection if the issues are reframed and they stated that the suit be decided on the basis of issues framed on 7.4.2007 and they did not press for any fresh issues. In view of the statement of counsels for both the parties, I am deciding issues framed on 7.4.2007.
7. In evidence, plaintiff no.2 examined himself as PW1. Sh. Riazuddin son of Sh. Habibullah was examined as PW 2. On the other hand, defendant no.1 had examined himself as DW 1. Sh. Mohd. Anis son of Sh. Mohd. Yamin was examined as DW 2. Sh. Mohd. Jahangir was examined as Suit No.44/01/97 11/22 12 DW 3. Sh. Tamizuddin son of Sh. Qutubuddin was examined as DW 4 and Sh. Mohd Gulfam son of Sh. Mohd. Riaz was examined as DW 5.
8. I have heard the arguments addressed by counsel for both the parties and perused the record. My issuewise findings are as under:
ISSUE NO.1:
9. The burden to prove the issue is upon the plaintiff. To prove this issue, plaintiff no.2 appeared in the witness box as PW 1 and filed affidavit in evidence. This witness has proved the attorney given by the deceased plaintiff in his favour as Ex PW 1/1; site plan was proved as Ex PW1/2 and the copies of rent receipts were proved as Ex PW1/3 & Ex PW1/4. The copy of the application dated 9.3.1993 given to the Deputy Commissioner of Police is proved as Ex PW1/5. On the other hand, defendant has placed on record the summon issued by Sh. Mahavir Singhal, Ld MM to defendant as Ex D1, Certificate of Mohd. Qasim Suit No.44/01/97 12/22 13 Malik President of Charitable Association as Ex D2, Certificate dated 24.6.1997 given by the Secretary, Charitable Welfare Association as Ex D3 and counter certificate dated 10.9.1998 issued by Charitable Welfare Commission was proved as Ex D4; rent receipt is proved as Ex D5; copy of bill dated 31.1.1986 is proved as Ex D6; copy of order dated 27.8.1998 passed by the Ld.Civil Judge as Ex D7; copy of order of Sh. D.K. Malhotra, Ld.Civil Judge as Ex D8, copy of order dated 9.2.1999 passed by Ld. Civil Judge as Ex D9; copy of order dated 15.5.2002 passed by Sh. S.C. Yadav Ld. Addl. District Judge dismissing the appeal of the plaintiff as Ex D10 and the copy of the order dated 20.11.2002 passed by Ms. Kaweri Baweja, Ld.Civil Judge in suit no.35/97 vide which plaint was rejected is proved as Ex D11.
10. The main contention of the counsel for the plaintiff is that admittedly a partnership deed was executed between Sh. Abdul Salam and Sh. Hajjiallahwal, both are brothers and sons of Sh. Abdul Gaffar and in this Suit No.44/01/97 13/22 14 partnership deed, both the brothers became 50% of the partners. This partnership deed is attested and signed by both the parties in presence of witnesses. It is vehemently contended by counsel for the plaintiff that this partnership was at will and on the demise of the father of the parties, the partnership deed came to an end. On the other hand, it is vehemently contended by counsel for the defendant that as per para 9 of the partnership deed - "That all the reference to the parties hereto in these presents shall include their respective heirs, executors, administrators, or assigns, unless excluded by or by repugnant to the subject or subjects." Thus, after the death of Abdul Salam, their legal heirs continued to be the partners. Admittedly father of plaintiff no.2 and husband of defendant no.1 Hajjiallahwala left for heavenly abode and father of defendant Abdul Salam also left for heavenly abode. Hajjiallahwala and Abdul Salam are both the brothers and sons of Abdul Gaffar. PW 1 admitted that the shop in question was taken on rent by his great grand father PW 1 also admitted that partnership deed was executed and PW 1 admitted to have Suit No.44/01/97 14/22 15 filed the partnership deed with the plaint which is proved on record as Ex PW 1/D1. This witness admitted that the shop was taken on rent by great grand father Sheikh Kallan. This witness stated that he does not know that this shop was inherited by the heirs of great grand father. Thus, this witness admitted that the shop was taken on rent by great grand father Sheikh Kallan. Sheikh Kallan had two sons Abdul Majid and Abdul Salam. Father of defendant no.1 Hajjiallahwala and father of Abdul Salam were brothers and both sons of Abdul Gaffar and the partnership deed was executed between Hajjiallahwala and Abdul Salam. It is the main contention of counsel for the plaintiff that the partnership came to an end after the death of father of defendant no.1. This argument is against the plaintiff as father of plaintiff no.2 also died and in what capacity they are continuing in the business at the suit property. As admitted by PW 1, property was taken on rent by his great grand father and the witness clearly admitted that he cannot say if Abdul Majid another son of Sheikh Kallan was having ½ share in the said shop at the Suit No.44/01/97 15/22 16 time of his death. As per clause 9 of the partnership deed, "That all the reference to the parties hereto in these presents shall include their respective heirs, executors, administrators, or assigns, unless excluded by or by repugnant to the subject or subjects." Thus, in the partnership deed, it is clearly mentioned that the partners shall include their respective heirs, assignees excluded by or repugnant subject. Plaintiff has not placed on record any document to show that the the heirs were excluded from continuing the business at the suit property.
11. The plaintiff in the plaint and in the affidavit, PW 1 clearly admitted that the defendant was getting share from the business of fruits & vegetables father after death of husband of plaintiff no.1 and was getting share from the plaintiff unlawfully. This fact is also mentioned by the PW 1 in his affidavit. Thus, plaintiff himself admitted that defendant was getting share from the business of fruits & vegetables after the death of husband of plaintiff no.1.
Suit No.44/01/97 16/22 17
12. In the para no.7 of the plaint, plaintiff clearly mentioned that defendant never took any interest in the business of fruits & vegetables selling at the suit premises and every month profit from the said business was recovered from the plaintiff. Thus, plaintiff himself admitted that defendant was getting share from the profit of business of fruits & vegetables being carried out at the premises. Counsel for plaintiff has vehemently contended that the husband of plaintiff vide application to Deputy Commissioner of Police dated 9.3.1993 terminated the partnership deed. I fail to consider this argument of counsel for the plaintiff as whether by giving an application to the Dy. Commissioner of Police, partnership can be terminated. It is not the case of the plaintiff that any notice terminating the partnership deed dated 20.10.1987 was sent to the defendant or father of defendant. Thus this contention of counsel for the plaintiff carries no force.
Suit No.44/01/97 17/22 18
13. Counsel for defendant has placed on record copy of order of the Hon'ble High Court of Delhi dated 24.8.2006 and also relied upon the observation of the Hon'ble High Court of Delhi in this order. On the other hand, counsel for the plaintiff has placed on record the order dated 23.2.2007, where, it is mentioned that the trial court is directed to decide and dispose of the civil suits on merits and on the basis of evidence and material on record without being influenced by the observations made in the order dated 24.8.2006 . This clarification is being issued least there by any confusion in the mind of the parties or the learned trial court. Thus, in view of the order dated 23.2.2007, the observations made in the order dated 24.8.2006 are not being discussed.
14. The defendant has placed on record a certified copy of the plaint filed by the defendant against the Baddar Hussain Sabri for mandatory injunction in suit no.26/07. In the suit, defendant has prayed that Baddar Hussain Sabri be directed to issue rent receipts and directing him to accept 25% of Suit No.44/01/97 18/22 19 the rent amounting to Rs.225 pm by accepting the said amount as rent from him in respect of shop no.3686, Phool Mandi, Darya Ganj, Delhi against a legally valid receipt duly signed. Baddar Hussain Sabri admitted in the suit and made statement in the court on 3.4.2007 admitting that he is landlord of the suit property and he also admited that this suit property was under the tenancy of Sheikh Kallan and the said shop devolved upon Abdul Majeed and Abdul Gaffar in equal share after the death of Sheikh Kallan. He also stated that "The share of Abdul Majeed devolved upon his son, Mohd. Sultan Malik and after his death, his sare devolved upon his sons Qasim Malik, Asim Malik and Qazim Malik. The share of Abdul Gaffar devolved upon Hajjiallahwala and Abdul Salam. The share of Abdul Salam devolved upon Mohd. Islam. The share of Hajjiallahwala devolved upon his sons Mohd. Shakil, Mohd Shamim and Mohd. Quddus. The heirs of Mohd. Sultan Malik inherited 50% of tenancy rights in the suit shop. The plaintiff gets 25% tenancy right in the said shop and the remaining 25% of tenancy rights are Suit No.44/01/97 19/22 20 inherited by the heirs of Late Hajjiallahwala." Thus, Baddar Hussain Sabri admitted that the defendant has 25% share in the said shop and on his statement, the suit was disposed of as satisfied and he issued rent receipts Ex D5 in favour of the defendant. PW 1 in the cross examination clearly admitted that the shop is owned by Dargah Sabri and he also admitted that at present Baddar Hussain Sabri is mattawali of Dargah Sabri. Thus, it is admitted that Sh. Baddar Hussain Sabri is landlord of the suit property who had made statement in suit No.26/07 and this gives credence to the version of the defendant. Thus, in view of the above evidence, plaintiff is not able to prove that the defendant has no right in the business of the suit prerty. Rent receipt was issued by Badar Hussain Sabri in favour of defendant which is proved on record as Ex D5.
15. It is vehemently contended by counsel for the plaintiff that plaintiff was not a party to the suit filed by the defendant against Badar Hussain Sabri, Suit No.44/01/97 20/22 21 thus, his statement cannot be taken into consideration. I fail to accept this contention of counsel for the plaintiff as landlordof the premises admitted the claim of defendant in suit no.26/07 and on the statement of landlord of the premises, the suit of the defendant was disposed of as satisfied. Thus, this contention of the counsel for the plaintiff carries no force.
16. The counsel for the defendant has placed reliance on : i. 602 Sushil Kumar Sabharwal v. Gurpreet Singh (SC), ii. II (2004) of the D.M.C. Act 503, iii. AIR 1982 SC 1249, wherein it was held that "The Court is bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. It cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject."
iv. 2010(3) CCC 326(H.P.), wherein it was held that "In case of death of a partner, the partnership firm will stand dissolved except when there is an agreement to the contrary between the parties." v. 1993, RLR 63, wherein it was held that "If tenant take one stand in the proceedings and then takes different stand later on then it is malafide."
vi. 2009 RLR 169(SC) wherein it was held that "A self serving statement has no value at all and cannot be relied upon."
vii. 1991 RLR (NSC) 45.
I have considered these judgments with utmost regard. Suit No.44/01/97 21/22 22
17.The plaintiff is not able to prove that he is entitled for relief of perpetual injunction as prayed. Accordingly, the issue is decided against the plaintiff and in favour of the defendants.
RELIEF
18. In view of my findings on the issues above, the suit of the plaintiff is hereby dismissed. No order as to costs. Decree sheet be prepared in terms of the judgment. File be consigned to the record room.
PRONOUNCED IN THE OPEN COURT (N. K. MALHOTRA)
th
ON: 27 July, 2012.
ASCJ/DELHI.
Suit No.44/01/97 22/22