Mohd. Ashraf vs Abdul Wahid Siddiqui on 9 August, 2023

[Cites 26, Cited by 0]

Delhi District Court

Mohd. Ashraf vs Abdul Wahid Siddiqui on 9 August, 2023

                                               Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui

                IN THE COURT OF MS. PAYAL SINGAL : CIVIL JUDGE - 08
                 (CENTRAL), ROOM NO.283, TIS HAZARI COURTS, DELHI


                                SUIT NO : 595745/2016
                              CNR NO.DLCT030002352011

        In the matter of :

1.      Mohd. Ashraf
        S/o Mohd. Yusuf,
        R/o 736, Katra Fazal Pura,
        Suiwalan, Delhi - 110 006

2.      Sadia Saad Yusuf
        D/o Sh. Saad Mahmood,
        R/o H.No.2164, Ahata Kalay Sahib,
        Qasimjan Street, Ballimaran,
        Delhi - 110 006

3.      Javed Iqbal,
        S/o Late Sh. Nizeeruddin,
        R/o 1972, Gali Rajan,
        Kucha Chelan, Darya Ganj,
        New Delhi.                                                     ...PLAINTIFFS

                                       VERSUS

        Abdul Wahid Siddiqui
        Proprietor of M/s. Rang Mahal,
        152527, Begum Manzil (first floor),
        Pataudi House, Daryaganj,
        New Delhi110002.

        Through his legal hires
1.      Shagufta (daughter)
2.      Shaaista (daughter)

     CS No.595745/2016                                                          Pg 1 of 68
                                                  Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui

3.      Tariq Jamal (son)
4.      Arif Jamal (son)
5.      Zulekha Wahid (wife)

        All residing at:
        H.No.2508, Tilak Bazar,
        New Delhi 110006.                                              ...DEFENDANT

                         Date of institution     :       22.10.2011
                         Date of judgment        :       09.08.2023

                 SUIT FOR POSSESSION AND RECOVERY OF DAMAGES
                       AND FOR PERMANENT INJUNCTION

                                    JUDGMENT

1. Vide this judgment, I shall decide a suit for possession, recovery of damages and for permanent injunction.

BRIEF FACTS OF THE PLAINT:

2. The brief facts as alleged in the plaint are that the plaintiffs are the joint owners of the property bearing No.152727, Begum Manzil, Pataudi House, Darya Ganj, New Delhi - 110 002 (hereinafter referred to as entire property). That the plaintiff No.1 became coowner of the said property initially owning 75% undivided share by virtue of registered sale deed dated 26.06.2002. At present he has got 33% share in the said property as he transferred his 33% share in favour of plaintiff No.2 by virtue of sale deed dated 07.02.2011 and his 9% in favour of the plaintiff No.3 CS No.595745/2016 Pg 2 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui vide a separate sale deed of the same date. The plaintiffs No.2, thus became coowner of 33% share in the entire property. Another sale deed dated 07.02.2011 was also made in favour of plaintiff No.3 making him a coowner of 25% share in the entire property, thereby making him a total owner of 34% in the entire property.

3. That the defendant was a tenant at the first floor (hereinafter referred to as suit property) more specifically shown as red colour in the site plan, of the suit property which was let out for commercial purpose at a monthly rent of Rs.375/ and his tenancy was month to month commencing from 1st day of each English Calendar month and ends on the last day of that month.

4. That the plaintiffs served a notice dated 07.05.2011 upon the defendant whereby demanding arrears of rent and also to vacate the suit property while terminating the contractual tenancy. However, the defendant did not comply with the said notice, neither any arrears of rent were paid nor the suit property was vacated. Instead, the defendant denied the ownership/title of the plaintiffs and also set up the title in himself by way of adverse possession in the suit property by virtue of reply dated 06.06.2011 sent to the counsel for plaintiff. In the said rely, the CS No.595745/2016 Pg 3 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui defendant stated himself to be an absolute and independent owner of the entire portion in his occupation, use and enjoyment, being in possession of the same for the last 32 years. It was further stated by the defendant that his possession is open, continuous, hostile, quiet, uninterrupted and undisputed and that he is not the tenant of any person at any rate from any date or month. That after the receipt of said notice and sending reply thereof, the defendant became bolder and threatened the plaintiff to create third party interest in respect of the suit property.

5. That at several occasions, different persons are seen to be visiting the suit property to purchase the same on the calling of the defendant and that in view of the abovementioned acts of the defendant, the plaintiffs were constrained to file the present suit as the defendant has got absolutely no right, title or interest in the suit property.

6. It is also submitted that the defendant has no right to remain in possession of the suit property as he has denied the title/ownership/land lordship of the plaintiffs. It is submitted that since the defendant has denied the title of the plaintiffs over the suit property and set up a title in himself, as such, the defendant cannot take the plea of protected tenant under the DRC Act at the later stage. The defendant is liable to pay CS No.595745/2016 Pg 4 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui Rs.25,000/ as damages per month for use and occupation of the suit property which is the present market rent from the date of filing of the present suit till the possession is delivered.

7. Hence, the present suit for following reliefs:

a) Pass a decree of possession in respect of property bearing No.152527, (First Floor) Pataudi House, Darya Ganj, New Delhi - 110 002, as shown in red colour in the site plan.

b) Pass a decree of damages for use and occupation at the rate of Rs.25,000/ per month which is the market rate of rent of the suit property from the date of filing of the present suit till the possession is delivered.

c) Pass a decree of permanent injunction thereby restraining the defendant, his agents, employees, assignees, executant, attorneys, servant etc. from creating third party interest in the suit property.

d) Cost of the suit may also be awarded in favour of the plaintiffs and against the defendant.

WRITTEN STATEMENT OF THE DEFENDANT:

8. The defendant filed his written statement controverting the claim of the plaintiff and took various preliminary objections such as the suit of the plaintiffs being not maintainable as the plaintiff himself has alleged the rate of rent as Rs.375/ per month, in which case, the tenancy of the defendant is protected under the provisions of DRC Act; that since it is already admitted by the plaintiffs in their plaint that the defendant is in possession for the last more than 32 years, the defendant has become CS No.595745/2016 Pg 5 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui the owner by way of adverse possession and that the suit of the plaintiffs is not maintainable in view of the same. Further, it is submitted that the plaintiffs have not properly valued the suit for the purpose of court fee and jurisdiction and no court fees has been paid or affixed on the relief of mesne profits and possession.

9. It is further stated that the plaintiffs have not disclosed the entire chain of documents as to how they became exclusive owner of the said property nor have they filed any document with respect to tenancy. It is also stated that the plaintiffs are claiming ownership on the basis of forged and fabricated documents. The defendants have again reiterated that since the year 1971, no person has ever realized the rent from the defendant in respect of the suit property and therefore, defendant has become owner thereof by way of adverse possession. Lastly, the defendant has raised preliminary objection with regard to lack of pecuniary jurisdiction of this Court to try and entertain the present suit as the value of the suit property is more than Rs.50 Lakhs and the suit of the plaintiff being barred by Section 50 of the Delhi Rent Control Act.

10. It is submitted on behalf of the defendant that one Musharraf Begum was landlord of the entire property bearing No.1525 - 27, Begum Manzil, CS No.595745/2016 Pg 6 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui Pataudi House, Daryaganj, New Delhi, and the entire property was occupied by number of tenants/occupants during her lifetime. Since Musharraf Begum was Issueless and widow lady having no close relations, hence during her lifetime she declared before all the tenants/occupants of the property that after her death, the respective portions of the property in occupation by various occupants/tenants shall devolve upon them in their ownership and nobody else will have a right to ask for the rent or any damages from the occupants of the property. That in or about the year 1971 Musharraf Begum expired and after her death, the respective occupants of the property became the owners of their respective portions and since then, no one has ever received any rent from the occupants/tenants of the property. It is therefore submitted that since 1971 till date, the possession of the defendant is continuous/ uninterrupted/unchallenged and hence, the defendant is the owner of the suit property by virtue of adverse possession.

11. That recently the defendant came to know that the plaintiffs in connivance with some other persons have fabricated some documents with a malafide intention to grab the suit property and accordingly the plaintiffs have even got issued notices to the occupants of the suit CS No.595745/2016 Pg 7 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui property which have been duly replied by the respective occupants making it clear that the plaintiffs are neither owners nor landlords nor they have got any right title or interest in the suit.

12. That when the plaintiffs could not succeed in their unlawful and illegal designs of grabbing the suit property, they started harassing the occupants of the property by getting issued false and frivolous Notice from the electricity department that is BSES Yamuna Power Limited to the various occupants wherein the said electricity company has asked the defendant and other occupants to obtain a fresh no objection certificate from Mohd. Ashraf who had been claiming the ownership of the suit property on the basis of forged and fabricated documents. So much so, the electricity meter in the name of the son of the defendant namely Tariq Jamal Siddiqui was disconnected unlawfully and illegally and Tariq Jamal Siddiqui filed a suit for injunction which was pending in the court of Ms. Neha Paliwal learned Civil Judge, Delhi while Civil Suit No.387/2011 and the Court vide order dated 04.01.2012 was pleased to direct the electricity department to restore the electricity supply immediately and not to disconnect the supply of electricity in future. The Court opined in that order that department has no authority to ask for CS No.595745/2016 Pg 8 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui fresh no objection certificate from the consumer in case they have already been enjoying the electricity connection which was granted without NOC of the landlord.

13. In reply on merits, the averments of the plaint have been denied being wrong. However, it has not been denied that the defendant was inducted as tenant by Musharraf Begum. It has also not been denied that defendant had sent a reply dated 06.06.2011 to the legal notice. It has further been submitted that there was no question of creating any third party interest as the defendant was running his business in the suit property, however, defendant was/is well within his rights to create third party interest in any manner whatsoever, being the owner. The contents of the rest of the paras have also been denied being wrong and false. REPLICATION:

14. Plaintiffs have filed replication to the written statement of the defendant denying the case of the defendant; reiterating and reaffirming the case as set up by them in the plaint.

15. It has been submitted that although the defendant has complete knowledge of his tenancy as well as the ownership of plaintiff, however, various documents being rent agreements entered by defendant with CS No.595745/2016 Pg 9 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui erstwhile owner/landlord late Mr. K.M. Saleem Husain, money order payments made by defendant for occupying the suit property to the said erstwhile owner have been filed with the replication to make it clear that the defendant was inducted as tenant in the suit property and in fact continued to be tenant on monthtomonth basis. Further the plea of adverse possession of the defendant has been denied.

16. The plaintiffs have then gone into the detailed history of the entire property and its original and erstwhile owners.

17. It has been submitted by the plaintiffs that Ms. Musharraf Begum was the original landlady of the suit property who purchased the entire property on 06.03.1940 after execution of a registered sale deed, thereafter her name was also recorded in the MCD records and she was paying House Tax regularly till her death in the year 1971. Ms. Musharraf Begum's nephew Khwaja Mohd. Saleem Husain looked after the suit property as well as other affairs of Musharraf Begum during her lifetime, as she was an issue less lady. Prior to her death, Ms. Musharraf Begum entrusted all the relevant and original documents pertaining to the said property to him and left for heavenly abode on 20.07.1971. Her only sister Ms. Qureshi Begum also expired on 03.08.1971 and CS No.595745/2016 Pg 10 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui thereafter Khwaja Mohd. Saleem Husain succeeded to the estate of Musharraf Begum being the only legal heir on the basis of Fatwa issued by Shahi Imam of Fatehpuri on 06.11.1971 itself. The first floor of the entire property was in possession of Ms. Musharraf Begum till the time of her death and there was no tenant on the first floor of the property. It was only after Khwaja Mohd. Saleem Husain succeeded to the estate and became the rightful owner of the property that the defendant approached him and entered into rent note/agreement dated 23.12.1971 with regard to certain portion on the first floor of the entire property admitting him as the true owner of the property in unequivocal terms. The defendant again entered into another rent note/ agreement dated 01.04.1973 with its erstwhile owner Khwaja Mohd. Saleem Husain for further portion on the first floor of the entire property. Defendant admittedly continued to tender rent to the said Khwaja Mohd. Saleem Husain by way of money order payments from the year 1971 till or around the year 2000 although, defendant was irregular in making payment towards rent and paid rent on time seldom. Khwaja Mohd. Saleem Husain also expired on 03.04.1988 and his wife predeceased him and expired on 03.01.1987 leaving behind only son Mr. Asmat CS No.595745/2016 Pg 11 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui Saleem who became the sole owner after the death of his father and said Asmat Saleem used to collect rent from the defendant. Mr. Asmat Saleem was in need of money and the rent of the suit property was also not increased since 1971, therefore, after a lot of persuasion and discussions, the rent was increased from Rs.225/ per month to Rs.375/ per month for two portions which was rented out to the defendant. Defendant never paid rent on time despite request of Mr. Asmat Saleem and avoided to pay rent on one pretext or the other.

18. It has further been stated that Mr. Asmat Saleem sold the suit property with all its rights vide registered sale deed dated 18.02.1999 to Mr. Arshad Zarabi and Mr. Zahid Husain in equal shares. Thereafter, Mr. Arshad Zarabi and Mr. Zahid Husain kept demanding rent from the defendant who again avoided on one or the other pretext and only intermittently used to pay rent. Thereafter, vide separate registered sale deeds, plaintiffs became joint owners of the entire property in the respective heirs of 33%, 33% and 34%.

19. That the said three owners have time and again requested the occupants to either tender rent or vacate the premises, however none paid heed. The three coowners applied for mutation and vide letter CS No.595745/2016 Pg 12 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui dated 04.03.2011 got the property mutated in their names and also paid house tax since the year 2002. Immediately thereafter, legal notice dated 07.05.2011 was sent by the plaintiffs calling upon the defendant to vacate the suit property and hand over the vacant and peaceful possession to plaintiffs. The rest of the contents of the written statement have been denied.

ISSUES:

20. Vide order dated 23.10.2013, following issues were framed from the pleadings of the parties:

1. Whether the plaintiff is entitled to decree for recovery of possession of suit property? OPP.

2. Whether the plaintiff is entitled to decree for recovery of damages at the rate of Rs.25000/ per month from the date of filing of the suit till the possession is handed over? OPP.

3. Whether the plaintiff is entitled to decree of permanent injunction restraining the defendant from creating third party interest in the suit property? OPP.

4. Whether the defendant has become the owner of the suit property by way of adverse possession?

OPD.

5. Relief.

CS No.595745/2016                                                              Pg 13 of 68
                                            Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui

     PLAINTIFF'S EVIDENCE:

21. In order to prove his case, Ms. Sadia S. Yusuf/plaintiff No.2 was examined as PW1 whose examination in chief was by way of affidavit Ex.PW1/A. PW1 relied upon following documents:

a) Ex.PW1/1 site plan of the suit property.

b) Ex.PW1/2 (OSR) sale deed dated 26.06.2002 by Arshad Zarabi and Zahid Husain in favour of Mohd. Ashraf.

c) Ex.PW1/3 (OSR) sale deed dated 07.02.2011 between Mohd. Ashraf and Sadia Saad Yusuf.

d) Ex.PW1/4 (OSR) (colly.) two sale deeds, both dated 07.02.2011, one between Mohd. Ashraf and Javed Iqbal and the other between Zahid Husain and Javed Iqbal.

e) Ex.PW1/5 (OSR) sale deed dated 09.03.1940 in Urdu language along with its English Translation, being sale deed in favour of original owner, Musharraf Begum.

f) Ex.PW1/6 was deexhibited and marked MarkA, being photocopies of house tax bills dated 01.04.1969, 29.06.1971, 19.10.1972.

g) Ex.PW1/7 was deexhibited and marked MarkB, being photocopy of fatwa in Urdu language along with its English translation.

h) Ex.PW1/8 (OSR) rent note w.e.f. 23.12.1971.

i) Ex.PW1/9 was deexhibited and marked MarkC, being photocopy of rent note w.e.f. 01.04.1973.

j) Ex.PW1/10 (colly running into 10 pages) receipts of money order dated 22.07.1973, 20.10.1975, 10.09.1976, 20.11.1976, 02.03.1977.

k) Ex.PW1/11 was deexhibited and marked as MarkD (colly running into 16 pages). Photocopy of letter dated 12.12.1974 in Urdu language along with its English translation; Letter dated 18.09.1975 (OSR) along with its English translation; Letter dated 07.11.1978 with CS No.595745/2016 Pg 14 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui its English translation; Two letters dated both 18.05.1979 (OSR) along with their English translation; Letter dated 03.06.1986 along with its English Translation; Letter dated 20.09.1986 (OSR) front back along with its English translation; letter dated 22.12.1971 along with its English translation.

l) Ex.PW1/12 was deexhibited and marked as MarkE, being photocopy of death certificate of Athar Saleem and Khawaja Mohd. Saleem Husain.

m) Ex.PW1/13 was deexhibited and marked as MarkF, being photocopy of letter dated 02.06.1992 with subject mutation of property No.152527 along with Ammendment to Assessment List order dated 16.08.1994.

n) Ex.PW1/14 was deexhibited and marked as MarkG (colly running into 10 pages), being photocopy of sale deed dated 18.02.1999 by Asmat Saleem in favour of Arshad Zarabi & Zahid Husain.

o) Ex.PW1/15 letter dated 04.03.2011 with subject mutation/sub division of P.No.152527.

p) Ex.PW1/16 (OSR) photocopy of house tax receipt dated 18.02.2011.

q) Ex.PW1/17 (OSR) office copy of legal notice dated 07.05.2011.

r) Ex.PW1/18 (OSR) (colly) postal and courier receipts.

s) Ex.PW1/19 (OSR) reply dated 06.06.2011 by defendant to notice dated 07.05.2011.

22. Sh. Javed Iqbal/plaintiff No.3 was examined as PW2 whose examination in chief was by way of affidavit Ex.PW2/A. PW2 relied upon following documents:

a) Ex.PW2/1 (colly.) original rent note dated 01.04.1973 along with attached map (site plan of first floor of premises No.1525).

b) Ex.PW2/2 original envelope dated 05.06.1986 along with letter in CS No.595745/2016 Pg 15 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui Urdu language dated 03.06.1986.

c) MarkA1 photocopy of translation from Urdu to English of letter in Urdu language dated 03.06.1986.

d) PW2 also relied upon documents already exhibited by PW1 during her evidence exhibited as Ex.PW1/1, Ex.PW1/4, Ex.PW1/8, Ex.PW1/10, MarkB and MarkD.

23. Sh. Naresh Kumar, Record Keeper from the office of SubRegistrarIII was a summoned witness who was examined as PW3. PW3 brought the following records:

a) Certified copy of sale deed dated 26.06.2020 by Sh. Arshad Zarabi and Sh. Zahid Husain in favour of Mohd. Ashraf. (certified copy of the same was already Ex.PW1/2) (OSR).

b) Certified copy of sale deed dated 07.02.2011 by Mohd. Ashraf in favour of Sadia Saad Yusuf (certified copy of the same was already Ex.PW1/3) (OSR).

c) Certified copy of sale deed dated 07.02.20211 by Zahid Husain in favour of Javed Iqbal (certified copy of the same was already Ex.PW 1/4) (colly.) (OSR).

d) Certified copy of sale deed dated 07.02.20211 between Mohd. Ashraf in favour of Javed Iqbal ((certified copy of the same was already Ex.PW1/4) (colly.) (OSR).

24. Sh. Sajid Ali, AZI/JSA, from the office of Deputy Assessment and Collector, (House Tax Department) was also a summoned witness who was examined as PW4. PW4 brought the following record of mutation:

a) Certified copy of letter with subject Mutation of property No.1525 27/XI, Pataudi House, Daryaganj, Delhi - 110 006, along with CS No.595745/2016 Pg 16 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui indemnity bond and affidavit (running into 4 pages; 5962). Same was exhibited as Ex.PW4/1 (OSR).

b) Certified copy of amendment to assessment list order dated 16.08.1994 (which was part of MarkF). As per record markF was page 63 and 64, however, witness brought the original of page 64 only). Page No.64 i.e. Certified copy of amendment to assessment list order dated 16.08.1994 is now Ex.PW4/2 (OSR).

25. PW4 was cross examined on 22.03.2021 and was resummoned for 27.09.2021.

26. On 27.09.2021, PW4 deposed that summoned record i.e. record pertaining to F.No.TAX/CZ/90/1350 dated 02.06.1992 in the name of Asmat Saleem, s/o Late Sh. K.M. Saleem in respect of property No.152527, Ward No.XI, Pataudi House, Darya Ganj, Delhi - 110002, including mutation letter dated 02.06.1992 issued in the name of Mr. Asmat Saleem with aforesaid file number is not traceable due to shifting of the office from Asaf Ali Road to Kashmiri Gate. PW4 was cross examined by Ld. Defence Counsel and during cross examination, he placed on record a noting made on the backside of the summons which was then exhibited as Ex.PW4/X1 (OSR) (two pages).

27. Sh. Sevajit, Record Attendant from Department of Delhi Archives, was also a summoned witness who was examined as PW5 who brought the CS No.595745/2016 Pg 17 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui sale deed dated 18.02.1999 bearing registration No.238, Additional Book No.1, Volume No.9750 on pages 117 to 124, as maintained in records of the Sub RegistrarIII. Photocopy of this document already on record as MarkG was compared with the record brought by him. MarkG was then exhibited as Ex.PW5/1 (OSR).

28. Sh. M.A. Khan (Translator) was also a summoned witness was examined as PW6. PW6 deposed that he translated the following documents:

a) Sale deed dated 06.03.1940 (already Ex.PW1/5) on the basis of a photocopy of said sale deed, from Urdu to English.

b) Fatwa dated 06.11.1971 (already MarkB) on the basis of a photocopy of the said Fatwa, from Urdu to English.

c) Rent receipt dated 22.07.1973, 20.10.1975, 10.09.1976, 20.11.1976 & 02.03.1977 (already Ex.PW1/10) (colly.) on the basis of a photocopies of the said rent receipts, from Urdu to English.

d) Letters dated 12.12.1974, 18.09.1975, 07.11.1978, 18.05.1979, 03.06.1986 and 20.09.1986 (already MarkD) (colly.) on the basis of a photocopies of the said letters, from Urdu to English.

e) Letter dated 03.061986 (already MarkA1) on the basis of a photocopy of the said letters, from Urdu to English.

29. PW6 was duly cross examined by ld. defence counsel and discharged.

30. Various objections were raised by the ld. Counsel for the defendant, essentially with respect to the mode of proof of several documents as relied upon by various witnesses, all of which shall be dealt with during CS No.595745/2016 Pg 18 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui the findings given by the Court.

31. Thereafter, plaintiff's evidence was closed.

DEFENDANT'S EVIDENCE:

32. On behalf of defendant, Sh. Tariq Jamal Siddiqui was examined as DW1 whose examination in chief was by way of affidavit Ex.DW1/A. DW1 relied upon written statement filed by his father and same was exhibited as Ex.DW1/1. DW1 was cross examined by ld. counsel for plaintiff on 19.12.2022, 27.01.2023 and 21.02.2023. Thereafter, defendant's evidence was closed on 14.03.2023.

33. I have heard the arguments and perused the record. My issuewise findings are as follows:

ISSUE NO 1:

Whether the plaintiff is entitled to decree for recovery of possession of suit property? OPP.

34. The onus to prove the said issue was upon the plaintiffs. The said onus was discharged by the plaintiffs in a twofold manner as per the arguments of the ld. Counsels for the plaintiffs: i. By proving that the defendant was the tenant of Late Sh. K.M. Salim (being erstwhile owner of the suit property which was inherited by his son Sh. Asmat Salim, who thereafter sold the suit CS No.595745/2016 Pg 19 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui property to the plaintiffs by virtue of different sale deeds) and thereby, he was estopped from challenging the title of the said landlord by operation of Section 116 of the Indian Evidence Act. ii. The plaintiffs' ownership qua the suit property which remained unchallenged by the defendant.

Firstly, arguments with respect to point (i) are being discussed.

35. The ld. Counsels for the plaintiffs relied upon the evidence of PW1, PW2 (being plaintiffs No.2 and 3 respectively) along with the documents relied upon the said witnesses to prove that the defendant was indeed inducted as a tenant by Sh. K.M. Salim. The said evidence is supported by the record brought by the summoned witnesses PW3, PW4 and PW5. Since, several documents as relied upon by the plaintiffs were in Urdu language, therefore, plaintiffs also relied upon the testimony of PW6 Sh. M.A. Khan, who translated all the said Urdu documents as relied upon by the plaintiffs.

36. The plaintiffs have relied upon two rent notes being Ex.PW1/8 and Ex.PW2/1 to show that suit property was given on rent by Sh. K.M. Salim to the defendant in two portions.

37. The particulars as contained in Ex.PW1/8 being rent note dated 23.12.1971 are as follows

a) Details of the tenant: M/s Rang Mahal by sole proprietor Mr. Abdul CS No.595745/2016 Pg 20 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui Wahid Siddiqui s/o late Sh. Abdul Hamid r/o house No. 2508, Phatak Habish Khan, Delhi.

b) Details of the landlord: Mr. Khwaja Mohamad Salim Hussain s/o late Sh. Basharat Hussain R/o 92/301250 Quarter, T.T. Nagar, Bhopal, M.P.

c) Details of rented premises: Verandah with shade facing main road, a kothri, Hall and a bath behind this verandah open courtyard behind the hall with a store on the south and a flush latrine with water and electricity connections available on the first floor of property No.1525 (Begum Manzil), Pataudi House, Darya Ganj, Delhi.

d) Monthly Rent: Rs.150/, excluding electric and service charges.

e) w.e.f.: 23.12.1971.

38. The particulars as contained in Ex.PW2/1 being rent note dated 01.04.1973 are as follows (a photocopy of the said document was also relied upon PW1 being Mark C):

a) Details of the tenant: M/s Rang Mahal by sole proprietor Mr. Abdul Wahid Siddiqui S/o Late Sh. Abdul Hamid R/o H. No.2508, Phatak Habish Khan, Delhi.

b) Details of the landlord: Mr. Khwaja Mohamad Salim Hussain s/o late Sh. Basharat Hussain R/o 92/301250 Quarter, T.T. Nagar, Bhopal, M.P.

c) Details of rented premises: one hall with rooftop, one verandah, Store, Kitchen, bathroom, latrine (common) and courtyard with water and electricity connections available on the first floor of property no. 1525(Begum Manzil), Pataudi House, Darya Ganj, Delhi.

d) Monthly Rent: Rs.75/, excluding electric and service charges.

e) w.e.f.: 01.04.1973.

39. Both the abovementioned rent notes contain different stipulations and CS No.595745/2016 Pg 21 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui conditions governing the tenancy and enjoyment of the tenanted premises and both the said rent notes have also been signed by the defendant and contain the seal of his proprietorship concern, M/s Rang Mahal.

40. It was argued on behalf of the plaintiff that the details contained in the said rent notes, being the father's name of the defendant (in both Ex.PW1/8 as well as Ex.PW2/1), the names of the brothers of the defendant (in Ex.PW1/8) and the names of the wife and son of the defendant (in Ex.PW2/1) is corroborated by the crossexamination of DW1. Further, it was argued that a naked eye comparison of the signatures of the defendant at the end of both these rent notes as well as in the written statement (i.e. Ex.DW1/1) filed in the present suit would show that both the said signatures are similar and all these documents have in fact, been signed by the same person. It was also argued that in view of the fact that on the copy of the written statement that was supplied to the plaintiffs, the signatures of the defendant were struck off/cut, adds to the fact that defendant is trying to hide facts and conceal the truth from the Court. It was then argued that in his cross examination, DW1 denied his father's signatures on Ex.PW1/8 and CS No.595745/2016 Pg 22 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui Ex.PW2/1 and alleged them to be forged but no complaint was ever filed by or on behalf of the defendant regarding the said forgery and in the absence of the same, mere allegations will not help the defendant. It was then argued that the fact that the defendant, during his lifetime, refused to conduct the admission/ denial of documents including the abovesaid rent notes, as is evident from the order sheet dated 23.10.2013, further shows his malafide and acts in favour of the plaintiffs. As regards the abovesaid documents, it was lastly argued on behalf of the plaintiffs that the said documents, being more than 30 years old, a rebuttable presumption is raised in favour of their genuineness which the defendants have failed to rebut.

41. The next set of documents as relied upon by the plaintiffs in support of their arguments regarding the defendant having been inducted as a tenant in the suit property by Sh. K.M. Salim are certain money orders as sent by the defendant to Sh. K.M. Salim for payment of rent, Ex.PW1/10 (colly); some letters written by the defendant to Sh. K.M. Salim, MarkD (colly) and some other letters written by some other tenants of Sh. K.M. Salim to him, also forming part of MarkD only.

42. There are 5 money orders (in Urdu) forming part of Ex.PW1/10 and all CS No.595745/2016 Pg 23 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui of these are accompanied by their English translations, duly signed and stamped by PW6. The details of the same are as follows:

a) Money order dated 22.07.1973 being for a sum of Rs.450/

b) Money order dated 20.10.1975 being for a sum of Rs.450/, as two months' rent.

c) Money order dated 10.09.1976 being for a sum of Rs.450/, as two months' rent (Rs. 225/ for eastern as well as western part).

d) Money order dated 20.11.1976 being for a sum of Rs.450/, as two months' rent for eastern and western part.

e) Money order/ rent receipt dated 02.03.1977 being for a sum of Rs.450/, as two months' rent for two sides.

43. All these documents, (a) to (e) contain two sides, front and back, wherein on the front side are mentioned salutations like 'salam respected Khwaja Mohd. Saleem Hussain' and ending salutations 'Sincerely Abdul Wahid'. Further, on the front side of all these documents is mentioned 'Please receive and send a rent receipt'. Then, the back side of all these documents, except (e) contain the signatures of the defendant and the rubber stamp of his proprietorship firm 'Rang Mahal' and its address, being the suit property.

44. It was argued on behalf of the plaintiffs that the signatures of the defendant on the backside of all these documents match with the signatures of the defendant on the written statement filed by him in the CS No.595745/2016 Pg 24 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui present suit (i.e. Ex.DW1/1). It was further argued that DW1in his evidence as well as crossexamination has merely denied his father's (i.e. defendant's) handwriting and signatures on all the said documents and stated that Rang Mahal had no stamp ever like the one on the said document, however, no evidence has been led to prove the said forgery or handwriting of the defendant. Lastly, with respect to these documents, it was argued that again, a rebuttable presumption has been raised in the favour of these documents which the defendant has failed to rebut.

45. MarkD consists of 8 documents written in Urdu along with their duly signed and stamped English translations by PW6. The particulars are as follows:

a) Letter dated 12.12.1974 written on the letterhead of M/s Rang Mahal by the defendant stating that three months' rent, i.e. Rs.675/ (@ Rs.225/ per month) is being sent through State Bank of India by way of DD No. AS308170 dated 12.12.1974. The said letter is addressed to Sh. K.M. Salim and is ending with "Sincerely Abdul Wahid Siddiqui, Prop. Rang Mahal, 1525, Pataudi House, Darya Ganj, Delhi110006".

It was argued on behalf of the plaintiffs that the said letterhead mentions at the top under the name 'RANGMAHAL' "Winners of National Awards for Excellence in Publishing and Printing" and in the immediately next line contains the description of the business of the said firm and both of these particulars are being corroborated by the testimony of DW1.

b) Post card dated 18.09.1975 sent by the defendant through official CS No.595745/2016 Pg 25 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui post card of Rang Mahal to Sh. K.M. Salim. The same is signed "Sincerely, Abdul Wahid" and the backside of the said post card contains the particulars of Sh. K.M. Salim.

It was argued on behalf of the plaintiffs that the said letter contains the names of some tenants of Sh. K.M. Salim qua the entire property namely, Sh. Hansraj ji, Dheer Sahib and Zafar Sahib and the DW1, in is crossexamination has admitted that there was a tenant by the name of Narender Dheer in some portion of the entire property in the year 1971.

c) Letter dated 07.11.1978 sent by the defendant stating that three months' rent (for eastern and western part) amounting to Rs. 675/ is being sent through DD No. DD/76A073948 dated 07.11.1978. The said letter also mentions sending of another draft being DD No. A073949 for Rs.400/ as rent by Mohd. Zafar Sahab. The said letter is addressed to Sh. K.M. Salim and is ending with "Well Wisher Abdul Wahid Siddiqui, Prop. Rang Mahal, 1525, Pataudi House, Darya Ganj, Delhi110002".

It was argued on behalf of the plaintiffs that the defendant could have summoned the bank records to show that the said document was forged as it contained specific details of the DD No. but the defendant has not done so and has only made bald assertions regarding forgery of this document also.

d) Letter dated 18.05.1979 sent by the defendant stating that that day itself, he had sent a letter and a draft by evening post. However, due to some confusion, a wrong draft was sent and that the correct draft would be sent soon. The said letter is also addressed to Sh. K.M. Salim, contains the sender's particulars as that of the defendant with his address details as the entire property and is ending with "Salam Well Wisher Abdul Wahid Siddiqui".

e) Letter dated 18.05.1979 sent by the defendant stating that a draft CS No.595745/2016 Pg 26 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui being DD No.DD/77A000089 dated 17.05.1979 of Rs.675/ for three months' rent (eastern and western part) is being sent. The said letter is also addressed to Sh. K.M. Salim and is ending with "Salam Well Wisher Abdul Wahid Siddiqui" and contains the rubber stamp of Rang Mahal with address as that of the suit property.

f) Letter dated 03.06.1986 sent by the defendant stating that a draft being DD No. C973076 dated 29.05.1986 is being sent for three months' rent (eastern and western part) and apologies have been made for late payment of rent. The said letter is also addressed to Sh. K.M. Salim and is ending with "Sincerely Abdul Wahid Siddiqui, Prop. Rang Mahal, 1525, Pataudi House, Darya Ganj, Delhi110006".

g) Letter dated 20.09.1986, sent on behalf of Rang Mahal promising to pay three months' rent soon.

h) Letter dated 22.12.1971 written by one Sh. Hashmat Ilahi wherein it is stated that the said person has vacated the property bearing no. 1525, Begum Manzil, Pataudi House, Delhi110006, owned by Sh. K.M. Salim which he was in occupation of and has stated that he has no further right/ interest in the suit property.

46. It was argued on behalf of the plaintiffs that owing to the admissions made with respect to the abovementioned documents by DW1 in his crossexamination, owing to the rent amount paid by some of these documents matching the combined rent of the suit property, the particulars of the defendant, his address as well the presence of the rubber stamp of M/s. Rang Mahal on some of the documents, the said documents stand proved. Further, owing to the rebuttable presumption CS No.595745/2016 Pg 27 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui raised in their favour by virtue of Section 90 of the Indian Evidence Act, which the defendant has failed to rebut, the said documents also stand proved.

47. It was accordingly argued on behalf of the plaintiffs that the abovementioned documents, being Ex.PW1/8, Ex.PW2/1, Ex.PW1/10 and MarkD, when taken together, show that the defendant was inducted as a tenant in the suit property by Sh. K.M. Salim and was paying rent to the said person only. Therefore, Section 116 of the Indian Evidence Act estopped the defendant or his LRs from challenging the title of the said landlord during the subsistence of the tenancy as DW1 has admitted in his crossexamination that the tenancy was never formally surrendered by his father, merely rent was not being paid as none claimed the rent after 1971. It was argued that the defendant could challenge the derivative title of the plaintiffs (which he has not done), but he cannot challenge the title of the landlord who inducted him in the suit property. Reliance is made upon the judgment of the Hon'ble Supreme Court in the case of Subhash Chandra v. Mohammad Sharif and Ors. (1990) 1 SCC

252.

48. Per contra, upon the said point (i), i.e. defendant being the tenant of Sh.

CS No.595745/2016 Pg 28 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui K.M. Salim, it was argued on behalf of the defendant that the defendant was never inducted as a tenant by the said Sh. K.M. Salim but was inducted as a tenant by the original owner of the property, Musharraf Begum. It was argued that the said fact stands established by the testimony of DW1 wherein, he has stated in his chief as well as cross examination that his father was inducted as a tenant by Musharraf Begum at around 1970 and was in possession of some portions of the suit property even prior to that. It was argued that the during the lifetime of the said Musharraf Begum, rent was duly paid to her, but since she died issueless, none came forward to claim rent after her death in 1971 and accordingly, the rent was never paid thereafter. It was further argued that the fact that Musharraf Begum was the original owner of the property and that she died issueless and her date of death are admitted facts.

49. The ld. counsel for the defendant then raised specific objections to some of the documents as relied upon by the plaintiffs to prove point (i).

50. Firstly, it was argued that both rent notes, being Ex.PW1/8 and Ex.PW 2/1 as relied upon by the plaintiffs contain very specific and peculiar terms and stipulations like the fact that the tenant would be allowed to CS No.595745/2016 Pg 29 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui sublet the tenanted premises in favour of some specific persons only. It was argued that no rent note could be expected to contain such specific stipulations and accordingly, it stands proved that the said rent notes are forged. It was also argued that the signatures of the defendant on both the said notes have been denied by DW1, he being the son of the defendant would naturally know the signatures of his father and therefore, this further proves that the said rent notes are fabricated and forged. It was also argued that both these documents have not been registered and therefore, cannot be relied upon. Reliance was placed upon the judgment of Bajaj Auto Ltd. v Bihari Lal Kohli 1989 SCC (4) 39.

51. The ld. Counsel then raised specific arguments upon Ex.PW2/1 and why the same could not be looked into by the Court. It was argued that the said document was printed on stamp paper which was purchased on 04.01.1972 (as mentioned on the backside of the said document), however the document is dated 01.04.1973, but no averments have been made, let alone any evidence brought forth, to explain the said discrepancy.

52. It was further argued on behalf of the defendant that the document, being letter dated 03.06.1986 (forming part of MarkD), contains an CS No.595745/2016 Pg 30 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui envelope that is attached with the said Urdu letter on the top, however, the said envelope does not form part of the letter. It a separate document and has not been filed in complete, but has been attached with this letter. Accordingly, the said document cannot be looked into by this Court.

53. It was then argued on behalf of the defendant, that all these documents, as relied upon the plaintiffs are not entitled to the benefit of Section 90 of the Indian Evidence Act as although they are stated to be 30 year old documents, however, the said documents have not been produced from the proper custody and therefore, Section 90 cannot be invoked to raise a presumption in their favour. Reliance has been placed upon the judgment of the Hon'ble High Court of Gauhati titled Nepurjan Bibi Choudhary v. Musabbir Ali Choudhary & Ors. AIR 2018 Gauhati 151.

54. It was lastly argued on behalf of the defendant that the site plan, Ex.PW 1/1 as relied upon by the plaintiffs is not the correct site plan and contains material contradictions in it, therefore cannot be looked into by the Court.

55. I have carefully heard the arguments of both the sides with respect to point (i), including the arguments in favour of and against specific CS No.595745/2016 Pg 31 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui documents, i.e. Ex.PW1/8, Ex.PW2/1, Ex.PW1/10 and MarkD and perused the record.

56. Firstly, coming to the site plan, Ex.PW1/1, the Court is of the opinion that it is the case of the plaintiffs that they are joint owners of the entire property bearing No.152527, Begum Manzil, Pataudi House, Darya Ganj, New Delhi110002 and the defendant was inducted as a tenant in only the first floor of the said property. Accordingly, the site plan of the said first floor has been relied upon as Ex.PW1/1. Even the legal notice dated 07.05.2011 (Ex.PW1/17) that was sent to the defendant to vacate the suit premises, was sent qua the said portion only and therefore, the Court finds that there is no controversy as to what the suit property is in the present suit, being first floor of property bearing No.152527, Begum Manzil, Pataudi House, Darya Ganj, New Delhi110002 which has been shown in red in Ex.PW1/1. Further, it is the defendant's claim that he is in possession of first floor as well as some portion of the second floor of the property bearing No.152527, Begum Manzil, Pataudi House, Darya Ganj, New Delhi110002. The said fact has also been stated in the crossexamination of DW1, but further in the said crossexamination, it has come on record '...it is correct that the said fact has not been disclosed in CS No.595745/2016 Pg 32 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui the written statement, Ex.DW1/1.' Also, neither any evidence has been led by the defendant to show as to the areas in his possession nor any site plan has been relied upon by the defendant to counter Ex.PW1/1. Further, no issue has also been made as to what the suit property actually is, therefore, there arises no occasion to question Ex.PW1/1 and the same stands established.

57. Now coming to the fact whether the defendant has been proved to be the tenant of Sh. K.M. Salim. The Court is of the opinion that the documents as relied upon by the plaintiffs being Ex.PW1/8, Ex.PW2/1, Ex.PW1/10 and MarkD stand duly proved by the plaintiffs.

58. DW1 in his cross examination has stated that the name of his paternal grandfather was Late Sh. Abdul Hamid. He has also stated that his father had two brothers namely Abdul Khaliq Siddiqui and Abdul Mallik Siddiqui and one sister namely Smt. Naima Khatoon. DW1 in his cross has further stated that it is correct that his mother's name is Zulekha Begum Wahid. DW1 has also stated that it is correct that his father was the proprietor of M/s Rang Mahal during his lifetime. Both, Ex.PW1/8, Ex.PW2/1 contain the details of the tenant as "M/s Rang Mahal by sole proprietor Mr. Abdul Wahid Siddiqui s/o late Sh. Abdul Hamid." Then, one of CS No.595745/2016 Pg 33 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui the stipulations contained in EX.PW1/8 is "the tenant will have no right whatsoever to sublet, assign or part with the possession of the premises in favour of anyone else except his brothers Mr. Abdul Malik Siddiqui and Mr. Abdul Khaliq Siddiqui." And one of the stipulations as contained in Ex.PW2/1 is that "the tenant will have no right whatsoever to sublet, assign or part with the possession of the premises in favour of anyone else except his son Mr. Tariq Jamal and his wife Mrs. Zulaikha Begum Wahid". These particulars have been corroborated by the testimony of DW1 himself and aid in proving the above said rent notes. It seems highly unlikely that the said details would be in the prior knowledge of the plaintiffs which they would have used to make forged rent notes, having been disclosed first time by the DW1 in his crossexamination. It is important to note here that it is not impossible to fathom that the rent notes may contain such stipulations with regard to such permissive subletting of tenancy in favour of family members of the tenant and accordingly, existence of the said stipulations cannot act against the validity of the said documents.

59. Now, the argument that the stamp paper for Ex.PW2/1 was purchased in 1972 whereas the document was executed in 1973, the Court does CS No.595745/2016 Pg 34 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui not find merit in the same. Had the situation been opposite, i.e. stamp papers purchased later and document executed before, then that would have raised serious doubts upon the validity of the said document but that is not the case. It is possible that the stamp papers were purchased beforehand and later, the document was executed. The Court is unable to find any infirmity in the said act.

60. As regards the argument of the ld. Counsel for the defendant regarding nonregistration of the said documents, the Court is of the opinion that as per Section 18(c) of the Registration Act, 1908 read with Section 107 of the Transfer of Property Act, 1882, the registration of any leases of immovable property for any term not exceeding one year is optional. Now, the rent/lease deed being Ex.PW1/8 and Ex.PW2/1 are silent as to their duration but do contain a stipulation that the "the tenant shall be entitled to terminate his tenancy, serving one month's notice on the landlord or viceversa". Further, Section 106 of the Transfer of Property Act, 1882 states that in the absence of a contract or local usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable by six months' notice whereas a lease for any other purpose shall be CS No.595745/2016 Pg 35 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui deemed to be a lease from month to month, terminable by 15 days' notice. Accordingly, the abovementioned rent notes, being for commercial purposes shall be deemed to be from month to month. Thus, making their registration optional and accordingly, their nonregistration shall be immaterial.

61. Now, coming to Ex.PW1/10. On perusal of the rate of rent per month as mentioned in all the five documents that form a part of this, it comes to pass that the same was Rs.225/ per month which is the same as the combined rate of rent for both the portions as per the two rent notes (Ex.PW1/8 as Rs.150/ and Ex.PW2/1 as Rs.75/). Also, all these documents mention that the rent is being tendered for two parts/ sides; given the fact that two separate rent notes were executed qua separate portions of the suit property, it is quite possible that two rent notes were executed for two separate sides/ parts of the suit property.

62. Now coming to documents MarkD. 8 documents have been relied upon by the plaintiffs which form a part of MarkD.

63. Letter dated 12.12.1974 has been purported to be written on the official letterhead of M/s Rang Mahal and accordingly, contains particulars of the same being:

CS No.595745/2016                                                           Pg 36 of 68
                                             Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui

                                 RANGMAHAL,

Winners of National Awards For Excellence in Publishing & Printing. Plates (Deepeth & Helio), Negatives (Offset and Block), Photo Bromides, Commercial Photography, Cinema Slides, Designs, Printing, Transparencies.

Then, comes letter dated 18.09.1975, the said document is alleged to be a post card sent by the defendant on the official Post card of his firm. Now without going into the question of whether post cards could get specifically printed in the name of any individual or firm (as the defendant has also not made any specific denial that the same was not the post card of M/s Rang Mahal), the Court can certainly look into the particulars as mentioned on the said postcard. The same contains the name Rang Mahal, Offset & Block Printing. Further the description of the business is also mentioned and the same is as contained in the letterhead. Further, two addresses are mentioned upon the said postcard: one being, 2449, Phatak Habash Khan, Tilak Bazar, Delhi06 and the other which looks like the address of the suit property, however, the number is not legible but the address Pataudi House, Delhi, Darya Ganj can easily be made out.

64. DW1 in his crossexamination as conducted on 27.01.2023 has stated, "Rang Mahal was started by my father around the time of my birth in the year CS No.595745/2016 Pg 37 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui 1964. It was probably 2449, Chota Rang Mahal, Tilak Bazar, Delhi06, which was used by my father to run the said business of Rang Mahal in the year 1964. It is correct that M/s Rang Mahal was in the business of offset printing and printing related works including publishing at around that time also. I do not know the exact details of what printing related works were done by Rang Mahal in 1964. It is correct that my father had received an Award relating to excellence in printing and publishing work. However, I do not know the exact details of the said Award." All these admissions made by the DW1 in his cross examination corroborate the said two letters and their authenticity.

65. Then comes letter dated 18.09.1975, which contains some names of other tenants, one of which is Dheer Sahib and DW1 has admitted in his cross examination that around the time of Musharraf Begum's death in the year 1971. This corroborates the said document.

66. Further, 4 of the said letters, contain specific details of the DD number through which rent payments were allegedly made by the defendant. The said documents, being allegedly defendant's own letters, the defendant could have filed the bank statements/records or summoned witnesses from the bank to produce the said records to contradict the same. But the defendant has not brought any documentary evidence CS No.595745/2016 Pg 38 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui whatsoever to support their averments.

67. The testimony of PW6 i.e. the translator also does not give rise to any questions upon his integrity or experience. Although, he has stated in his crossexamination that he does not posses any license in translation, but he has stated his educational qualifications and that he has been translating documents since 1982. Therefore, the Court deems it fit to rely upon the translations as done by him for the documents as relied upon by the plaintiffs.

68. Further, the Court is empowered by Section 73 of the Indian Evidence Act,1871 to compare the signatures of the defendant as on the written statement filed by him with his alleged signatures on Ex.PW1/8, some documents forming part of Ex.PW1/10, Ex.PW2/1 and from a bare perusal, it prima facie appears that the said signatures are similar. This coupled with the fact that most of these documents (i.e. Ex.PW1/8, Ex.PW2/1, Ex.PW1/10 and MarkD) are alleged to be written by the defendant himself and contain his signatures and/or the stamp of his proprietorship concern, but the defendant has merely denied the handwriting and signatures of his father on the said documents and alleged the same to be forged and has not led any evidence to prove the CS No.595745/2016 Pg 39 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui said forgery. It is very difficult to fathom that DW1, being the son of the defendant, as well as other LRs, being impleaded in the present suit as the children of the deceased defendant, would not be in possession of any document having been written and/or signed by their father or containing the stamp of his proprietorship concern. It is a settled law that one who alleges a document to be forged and fabricated has to prove the same which has not been done by the defendant. Accordingly, the said documents stand established.

69. In view of the discussion above, the Court is of the opinion that the documents as relied upon by the plaintiffs, i.e. Ex.PW1/8, Ex.PW2/1, Ex.PW1/10 and MarkD stand duly proved by the crossexamination of DW1 himself.

70. Now, as regards the argument of the ld. Counsel for the defendant that the said documents have not been produced from proper custody and therefore, presumption under Section 90 of the Indian Evidence Act is not invoked, firstly, the law related to presumption under Section 90 of the Indian Evidence Act needs to be looked into. Section 90 reads as under:

90. Presumption as to documents thirty years old.--Where any document, purporting or CS No.595745/2016 Pg 40 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.

Explanation.--Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.

71. Now, as per the paragraph 22 of the judgment as relied upon by the defendant of the Hon'ble High Court of Gauhati titled Nepurjan Bibi Choudhary v. Musabbir Ali Choudhary & Ors. AIR 2018 Gauhati 151, reference has been made to another judgment of the same High Court titled Paramesh Sarmah & Ors. V. Islamali & Ors. wherein the conditions for raising presumption under Section 90 have been laid down as:

a) That it must have been existed for 30 years or more;

b) It must be produced from proper custody:

c) The document must be in appearance free from suspicion and doubt;

d) It must be in the handwriting of a person and it should not be CS No.595745/2016 Pg 41 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui anonymous.

72. Now, the documents, being Ex.PW1/8, Ex.PW2/1, Ex.PW1/10 and MarkD shall be considered in light of the settled law. The said documents are all more than 30 years old as is clear from the dates mentioned upon them. From a naked eye perusal of all the said documents and the circumstances in which they are alleged to be executed, the same does not raise any suspicions regarding the said execution. Then, all the said documents are executed by known persons, being the defendant essentially and are definitely not anonymous documents.

73. Now, the only question that remains is whether they can be said to have been produced from proper custody. It is the case of the plaintiffs that K.M. Salim was the landlord of the defendant, therefore, the rent notes, Ex.PW1/8 and Ex.PW2/1; money orders being sent to him, Ex.PW1/10 and letters being written to him, MarkD, being in his possession is very natural. Since the plaintiffs became joint owners of the entire property through subsequent sale deeds in their favour by successors in interest of the said Sh. K.M. Salim, it is quite possible that they had acquired the said documents from erstwhile owners. PW1 in his crossexamination CS No.595745/2016 Pg 42 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui has also stated that she had obtained the entire previous chain of ownership documents from the erstwhile owners. In the judgment as relied upon by the defendant in paragraph 25, it has been held that, "in the instant case, the Ext 1 purportedly executed in the year 1958 was apparently more than 30 years old and was produced from proper custody in as much as, the plaintiffs, from whose custody the document was produced, was the beneficiaries of the document..."

The same enables this Court to come to the opinion that the said documents were in fact produced from proper custody and therefore, a presumption under Section 90, Indian Evidence Act is raised in their favour.

74. Now all the said documents stand duly proved by the plaintiffs, by independent evidence, specifically, the testimony of DW1 himself and being 30 year old documents, a presumption has also been raised in their favour by virtue of Section 90 of the Indian Evidence Act.

75. Now, the onus shifted upon the defendant to prove that the defendant was not so inducted. The defendant has miserably failed to bring forth any evidence to discharge the said onus. At the cost of repetition, I again state that all the documents as relied upon by the plaintiffs having been CS No.595745/2016 Pg 43 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui executed by the defendant himself, the LRs of the defendant could easily have brought any document executed by the defendant, or containing the handwriting and signatures of the defendant or containing the seal of the defendant's proprietorship concern to discharge the onus but the same has not been done. No documents whatsoever have been filed by the defendant in support of his case. Further, although the defendant has averred that he was inducted as a tenant by Musharraf Begum sometime in the year 1971 and DW1 has also stated the same in his evidence as well as crossexamination, but no documentary evidence has been led to prove the execution of any rent agreement between the defendant and Musharraf Begum, no rent receipts or any other documents have been relied upon to show any relation of landlord tenant between the said two persons or that rent was being paid till 1971. Even if is assumed, that the tenancy being old, no documents existed to prove the same, however, some witnesses, being other tenants could have been brought in to show the relationship of landlord tenant between the defendant and Musharraf Begum or to disprove the relationship of landlord tenant between the defendant and Sh. K.M. Salim. The defendant has not even filed any electricity bill, water bill, CS No.595745/2016 Pg 44 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui identity proof, etc. to show his possession over the suit property.

76. In the given circumstances, the onus that shifted upon the defendant has not been discharged and accordingly, the defendant is held to be a tenant of Sh. K.M. Salim.

Now arguments with respect to point (ii) are being discussed.

77. The second leg of arguments to discharge the burden to prove Issue No.1 was with respect to point (ii) to show the ownership of the plaintiffs with respect to entire property, being 15251527, Begum Manzil, Pataudi House, Darya Ganj, New Delhi110002.

78. The plaintiffs have relied upon the evidence of PW1 and PW2 as well as their crossexamination to prove the fact that the plaintiffs are the owners of the entire property. It has been argued that it is an admitted fact that Musharraf Begum was the original owner of the entire property. Ex.PW1/5, being registered sale deed dated 09.03.1940 in the name of Musharaff Begum (Urdu), along with its duly signed and stamped English translation by PW6 has been relied upon for the same.

79. It is then the case of the plaintiff that it is also an admitted fact that Musharraf Begum died issueless. It is then argued that thereafter, his nephew, being K.M. Salim, who also used to help Begum in managing CS No.595745/2016 Pg 45 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui the property, became the owner of the entire property by virtue of Fatwa dated 06.11.1971, MarkB. Additionally, it was also argued that irrespective of the Fatwa, by virtue of the operation of Muslim Personal Law, be it as applicable on Sunnis or Shias, Sh. K.M. Salim comes under the category of "Residuary" and thereby, he being her nephew, is a legal heir of Begum. The fact that K.M. Salim was the nephew of Begum stands proved by (a) the family tree as contained in the Fatwa and (b) the testimony of PW2/plaintiff No.3 wherein he states that he knew K.M. Salim since his childhood, therefore, he knows that he was the nephew of Musharraf Begum.

80. It is then argued that after the death of Sh. K.M. Salim on 03.04.1988 (death certificate is MarkE), his son Asmat Salim inherited the entire property, being the only son, as K.M. Salim's wife Smt. Athar Saleem predeceased him on 03.01.1987 (as per her death certificate being part of MarkE). Asmat Salim got the entire property mutated in his name which is proved from (a) Ex.PW4/1 being letter dated 20.05.1992 written by Asmat Salim to get the property mutated in his name along with the indemnity bond and affidavit signed by him; (b) MarkF, being photocopy of letter issued by MCD dated 02.06.1992 regarding mutation of entire CS No.595745/2016 Pg 46 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui property in the name of Asmat Salim, (c) Testimony of PW4 being summoned witness from the Office of Deputy Assessment and Collector who stated that the mutation letter dated 02.06.1992 was not traceable,

(d) Ex.PW4/2, Amendment to Assessment List Order dated 16.08.1994 which contains the description of the entire property and the name of Asmat Salim has been mentioned as the person liable to pay property tax for the same (vide this document, the annual value of properties subject to Delhi rent control legislation have been revised, including the entire property).

81. Then, it is argued that the said Asmat Salim sold the entire property to two persons namely Sh. Arshad Zarabi and Sh. Zahid Hussain equally by virtue of registered sale deed dated 18.02.1999, MarkG, which was later exhibited Ex.PW5/1 by summoned witness PW5 from Archives Department.

82. Now, it is the case of the plaintiffs that all three of the plaintiffs became owners of separated portions of the entire property by virtue of different registered sale deeds.

a) Plaintiff No.1 became the owner of 75% of the entire property by virtue of registered sale deeds dated 26.06.2002. Vide the said sale deed, Sh. Arshad Zarabi sold his entire 50% share in the property to CS No.595745/2016 Pg 47 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui plaintiff No.1 and Sh. Zahid Hussain sold 50% of his 50% share, i.e. 25% in the entire property to plaintiff No.2. The same is Ex.PW1/2 (OSR). PW3 was summoned from the office of SubRegistrar who brought the original sale deed and also placed a certified copy of the same on the judicial record. However, plaintiff No.1 subsequently, sold 33% of his hare to plaintiff No.2 and 9% of his share to plaintiff No.3 and accordingly, remained the owner of only 33% share in the entire property.

b) Plaintiff No.2 became the owner of 33% of the entire property by virtue of registered sale deed dated 07.02.2011. Vide the said sale deed, plaintiff No.1 transferred 33% of his 75% share in the entire property in her favour. The same is Ex.PW1/3 (OSR). PW3 was summoned from the office of SubRegistrar who brought the original sale deed and also placed a certified copy of the same on the judicial record.

c) Plaintiff No.3 became the owner of 34% of the entire property by virtue of two registered sale deeds. One dated 07.02.2011 vide which plaintiff No.1 sold 9% of his 75% share in the entire property in his favour. The same is Ex.PW1/4 (colly) contains two sale deeds (OSR). PW3 was summoned from the office of SubRegistrar who brought the original sale deed and also placed a certified copy of the same on the judicial record. Other dated 07.02.2011 vide which Sh. Zahid Hussain sold his remaining 25% in the entire property to him (earlier 25% was transferred in the name of the plaintiff No.1 vide registered sale deed dated 26.06.2002). The same is Ex.PW1/4 (colly contains two sale deeds) (OSR). PW3 was summoned from the office of SubRegistrar who brought the original sale deed and also placed a certified copy of the same on the judicial record.

83. The plaintiffs also placed reliance upon Ex.PW1/15 by which the entire property was mutated in the names of all the three plaintiffs as per their respective shares. Also, Ex.PW1/16 was relied upon to show how CS No.595745/2016 Pg 48 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui property tax qua the entire property was paid by plaintiff No.2 for the years 20032004, 20042005 to 20102011.

84. It was argued on behalf of the plaintiffs that a presumption of genuineness is raised in favour of registered sale deeds (Prem Singh v. Birbal AIR 2006 SC 3608) and the onus to prove otherwise lies on the person who challenges it. Thus, the plaintiff No.1 became owner of 33% of the entire property, plaintiff No.2 became owner of 33% of the entire property and plaintiff No.3 became owner of 34% of the entire property as the defendant (either himself or through LRs) did not ever challenge the said sale deeds.

85. The arguments addressed by ld. Counsel for the defendant qua this point (ii) were essentially that the basis of the entire sale deeds is the Fatwa, the original of which has not been produced and merely a copy of the same has been relied upon by the plaintiffs. It was argued that no witnesses or relatives as mentioned in the family tree of the said Fatwa have been called upon by the plaintiffs to establish the said Fatwa. Therefore, the said Fatwa has not been dully proved as per law. Consequently, it cannot validly transfer rights in an immovable property as the ownership of immovable property can be transferred only by CS No.595745/2016 Pg 49 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui following the rules of Transfer of Property Act,1882 and Registration Act,1908. Reliance was placed on Ex.PW1/D1, being order dated 14.12.2020 of Hon'ble Ms. Justice Pratibha M. Singh of the Hon'ble High Court of Delhi whereby elaborate observations were made with regard to the legality of a Fatwa. Accordingly, it was argued that since Fatwa cannot legally create rights in favour of any person upon any immovable property, therefore, the entire chain of documents after the said Fatwa loses its value and cannot be looked into.

86. I have heard the arguments and carefully gone through the record. At the outset, I would like to mention that the observations made by the Hon'ble High Court of Delhi have authoritative value and are binding upon this Court. Having said that, it has also to be seen as in what circumstances and context, the said observations were made. The limited question before the Hon'ble High Court of Delhi wherein the said observations were made was whether the plaintiffs were entitled to a decree under Order 12 Rule 6 of the CPC in the present suit. Vide order dated 12.02.2016 of the ld. Predecessor of this Court, an application under Order 12 Rule 6 of the CPC was dismissed and the plaintiffs filed an appeal against the said order.

CS No.595745/2016 Pg 50 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui The said appeal was dismissed vide order dated 14.12.2020 by holding that "There were no admissions made by the defendant in the written statement, documents or otherwise. In fact, there is a clear denial by the defendant of the right of the plaintiffs. Even if the defendant is stated to have admitted Mst. Musharraf Begum's ownership of the property, the same would not lead to a decree being passed as much as the plaintiffs would have to validly and legally trace back their title to Mst. Musharraf Begum. The other defences of the defendant, including adverse possession would also have to be adjudicated."

What transpires from the perusal of this entire order is that the Hon'ble High Court had held that both the parties had to lead evidence before the trial court and on the basis of the said evidence, the trial court had to come to a conclusion as to the determination of rights and title of both the sides and that the Fatwa cannot be stated to transfer ownership with respect to immovable property unless it is duly proved.

87. Now, what assumes importance here is the fact that the plaintiffs have been able to prove that the defendant was inducted as a tenant by Sh. K.M. Salim as held above. Once the said fact has been held to be duly proved, the defendant is estopped from challenging the title of the said CS No.595745/2016 Pg 51 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui landlord qua the entire property (Section 116 of the Indian Evidence Act). By the operation of the rule of estoppel, the defendant is estopped from going into the question of how Sh. K.M. Salim became the owner of the entire property. It is important to note here the observations of the Hon'ble Supreme Court of India in the case of Subhash Chandra v. Mohammad Shariif (1990) 1 SCC 252 as relied upon by the plaintiffs.

7. It is true that the doctrine of estoppel ordinarily applies where the tenant has been let into possession by the plaintiff. Where the landlord has not himself inducted the tenant in the disputed property and his rights are founded on a derivative title, for example, as an assignee, donee, vendee, heir, etc., the position is a little different. A tenant already in possession can challenge the plaintiff's claim of derivative title showing that the real owner is somebody else, but this is subject to the rule enunciated by Section 116 of the Evidence Act. The section does not permit the tenant, during the continuance of the tenancy, to deny that his landlord had at the beginning of the tenancy a title to the property. The rule is not confined in its application to cases where the original landlord brings an action for eviction. A transferee from such a landlord also can claim the benefit, but that will be limited to the question of the title of the original landlord at the time when the tenant was let in. So far claim of having derived a good title from the original landlord is concerned, the same does not come under the protection of the doctrine of estoppel, and is vulnerable to a challenge. The tenant is entitled to show that the plaintiff has not as a matter of fact secured a CS No.595745/2016 Pg 52 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui transfer from the original landlord or that the alleged transfer is ineffective for some other valid reason, which renders the transfer to be non existence in the eye of law. By way of an illustration one may refer to a case where the original landlord had the right of possession and was, therefore, entitled to induct a tenant in the property but did not have any power of disposition. The tenant in such a case can attack the derivative title of the transferee plaintiff but not on the ground that the transferor landlord who had initially inducted him in possession did not have the right to do so. Further since the impediment in the way of a tenant to challenge the right of the landlord is confined to the stage when the tenancy commenced, he is not forbidden to plead that subsequently the landlord lost this right. These exceptions, however, do not relieve the tenant of his duty to respect the title of the original landlord at the time of the beginning of the tenancy.

88. Similarly, in the present case, the DW1 in his cross examination conducted on 27.01.2023 has stated that his father never surrendered the tenancy rights and used to pay rent till the lifetime of Musharraf Begum but after her death, since none asked for rent, the same was not paid, therefore, the tenancy was subsisting. Accordingly, the defendant was entitled to challenge the derivative title of the plaintiffs, however, they have not done so, but defendant cannot be allowed to challenge the title of the original landlord, being Sh. K.M. Salim. Thus, the question as CS No.595745/2016 Pg 53 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui to whether the Fatwa has been duly proved or not is not something that this Court is required to go into. Once, the tenancy of the defendant with Sh. K.M. Salim stands proved, the documents with regard to how K.M. Salim became the owner become irrelevant.

89. In view of the observations above, the Court now is only concerned with the documents as relied upon by the plaintiffs to trace their ownership from the said Sh. K.M. Salim. The Court is of the considered view that the plaintiffs have been able to establish the entire chain of events and documents by virtue of which the plaintiffs became the owners of the entire property. The fact that Asmat Salim was the only son of Sh. K.M. Salim and executed the sale deed in favour of Sh. Arshad Zarabi and Sh. Zahid Hussain stands established by the evidence and cross examination of PW1 and of PW2 and the defendant has not been able to prove any material contradictions in the evidence of the said two witnesses as far as these facts are concerned. All the suggestions put to PW1 and PW2 regarding the three plaintiffs not being joint owners of the entire property have been denied by both the said witnesses.

90. Further, it is matter of record that the plaintiffs made several efforts to summon Sh. Arshad Zarabi, Sh. Zahid Hussain and Sh. Asmat Saleem, CS No.595745/2016 Pg 54 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui however, the said witnesses could not be summoned. It has come on order sheet dated 03.11.2022 that the summons that were sent to witness Sh. Zahid Hussain have come back unserved with the report that the said person has passed away. Summons sent to witness Sh. Arshad Zarabi was returned back with the report of 'sold house', but despite best efforts, no new address of the said witness could be traced and the plaintiffs decided to drop the said witness. The summons sent to witness Sh. Asmat Saleem could not be received back despite being sent twice as the address pertained to outstation, in view of which the plaintiffs dropped the said witness as well. Accordingly, the Court is of the view that best efforts were made by the plaintiffs to bring independent witnesses to prove the execution of the said sale deeds but due to factors outside their control, no such witnesses could be brought on record. Nonetheless, all the sale deeds, being Ex.PW5/1, Ex.PW 1/2, Ex.PW1/3, Ex.PW1/4, being registered sale deeds, a presumption is raised in favor of their genuineness. Reference can be made to the judgment of Prem Singh & Ors. v. Birbal & Ors. (2006) 5 SCC 353 as relied upon by the plaintiffs wherein it was held as under:

"27. there is a presumption that a registered document is validly executed. A registered CS No.595745/2016 Pg 55 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on the person who leads evidence to rebut the presumption. in the instant case, Respondent no.1 has not been able to rebut the said presumption."

The above judgment has also been referred to in Vishwanath Bapurao Sabale v. Shalinibai Nagappa Sabale & ORs. (2009) 12 SCC 101.

91. Now, once the presumption has been raised in the favour of genuineness of these sale deeds, the plaintiffs have been able to discharge the burden to prove that they are the joint owners of the entire property and the onus shifts upon the defendant to disprove the same.

92. Although, it has been argued on behalf of the defendant that all the said deeds are forged and fabricated; even DW1 has stated in his cross examination that since the first sale deed executed after the death of Musharraf Begum is unlawful, accordingly, all subsequent sale deeds are also unlawful, but no evidence has been led forth to prove the said forgery. DW1 has also stated that it is correct that he has not filed any complaints with respect to the registered sale deeds in favour of the plaintiffs being forged. Thus, it stands to prove that no evidence has been led by the defendant to prove the said forgery, in the absence of which the presumption raised in the favour of their genuineness has not CS No.595745/2016 Pg 56 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui been rebutted.

93. Lastly, it is important to mention that DW1 in his crossexamination has also stated that he got the confirmation about the existence of the registered sale deeds when they were produced in Court, however, he had heard rumors even prior to that. Since, it is the case of the defendant that he has become the owner of the suit property by virtue of adverse possession, the Court is unable to imagine any reason as to why no efforts were made by the defendant or on his behalf to inquire into the details of the alleged registered sale deeds especially if the defendant had heard rumors about their existence. This act or lack of action on behalf of the defendant enables the Court to draw an adverse inference against him (Section 114 of the Indian Evidence Act) and accordingly, point (ii) also stands proved in favour of the plaintiffs and they are held to be owners of the entire property.

94. In view of the discussion above with respect to point (i) and (ii), the Court is of the opinion that the plaintiffs have been able to discharge their burden and accordingly, issue No.1 is decided in favour of the plaintiffs and against the defendant.


      ISSUE NO.4


CS No.595745/2016                                                             Pg 57 of 68
                                                 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui

Whether the defendant has become the owner of the suit property by way of adverse possession? OPD.

95. Before going into the merits of this issue, it is necessary to know the settled law with respect to adverse possession. The Hon'ble Supreme Court of India in the judgment of Karnataka Board of Waqf v. Govt Of India (2004 10 SCC 779) observed that: "11. In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Nonuse of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S M Karim v. Bibi Sakinal AIR 1964 SC 1254, Parsinni v. Sukhi (1993) 4 SCC 375 and D N Venkatarayappa v. State of Karnataka (1997) 7 SCC 567). Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and CS No.595745/2016 Pg 58 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui law. Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (Dr. Mahesh Chand Sharma v. Raj Kumari Sharma (1996) 8 SCC128).

Plaintiff, filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. (See: S M Karim v. Bibi Sakinal AIR 1964 SC 1254). In P Periasami v. P Periathambi (1995) 6 SCC 523 this Court ruled that "Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property." The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal v.

Mirza Abdul Gaffar (1996) 1 SCC 639 that is similar to the case in hand, this Court held: "As regards the first plea, it is inconsistent with the second plea."

Having come into possession under the agreement, he must disclaim his right there under and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal CS No.595745/2016 Pg 59 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui possession during the entire period of 12 years, i.e., up to completing the period his title by prescription nec vi, nec clam, nec precario. Since the appellant's claim is founded on Section 53A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant."

96. Now, from the perusal of the abovestated observations, it is clear that since it is inherent in a plea of adverse possession that someone else is the owner, accordingly, a strict burden is imposed upon the person who is claiming to be the owner way of adverse possession. It has to be clearly established that:

(a) on what date he came into possession,

(b) what was the nature of his possession,

(c) whether the factum of possession was known to the other party,

(d) how long his possession has continued, and

(e) his possession was open and undisturbed.

Another settled law that emerges from the said judgment is that the plea of title and adverse possession are mutually destructive and cannot be claimed together.

97. Now, firstly, it is important to mention that in paragraph No.12 of written statement (reply on merits), it has been averred that Musharraf Begum, during her lifetime had stated in the presence of all her tenants that after CS No.595745/2016 Pg 60 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui her death, all the tenants would become respective owners of the portions in their possessions. In the immediately succeeding paragraph No.13, it has been averred that after the death of Musharraf Begum in 1971, all the tenants became owners of respective portions in their possession and since no one came forward to claim rent from them, they also became owners by way of adverse possession.

98. At the foremost, the defendant cannot be permitted to raise both the said pleas together as they are mutually destructive. Now, even if it is assumed that the defendant has given up the plea of becoming owner by virtue of Musharraf Begum's declaration as the said fact does not find mention in the evidence affidavit, being DW1/A, neither any issue has been framed qua it nor any evidence has been led qua it, then also, the defendant was required to lead specific evidence to prove his ownership by way of adverse possession. However, as the record shows, apart from the written statement of the original defendant Ex.DW1/1, evidence affidavit of DW1 (Ex.DW1/A) and testimony of DW1, no other evidence has been led by the defendant. It was argued on behalf of the defendant that the date of death of Musharraf Begum is undisputed being, 20.07.1971. Thereafter, no one came forward to claim CS No.595745/2016 Pg 61 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui rent of the suit property and since adverse possession is to be showed only qua the original owner, therefore, from 20.07.1971, the possession of the defendant (and after his death of his LRs) became adverse, peaceful, open and continuous. It was further argued that a reply dated 06.06.2011, Ex.PW1/19 was sent to the legal notice dated 07.05.2011, Ex.PW1/17 and in the said reply, the ownership of the plaintiffs was clearly negated and it was stated that the defendant became owner of the property in their possession by virtue of adverse possession. The fact that no reply to the said reply disputing its averments was ever made by or on behalf of the plaintiffs, proves the fact that the defendant became owner of the suit property by adverse possession.

99. The Court is of the considered opinion that the arguments as addressed by the defendant and the evidence relied upon by the defendant are not at all sufficient to discharge the strict burden to prove ownership by adverse possession. In view of the fact that the plaintiffs have been able to prove that defendant was the tenant of Sh. K.M. Salim, the arguments of the defendant become even more flawed as once the said fact stood proved, then adverse possession had to be established qua Sh. K.M. Salim and the successors in interest of the said person. Not even an iota CS No.595745/2016 Pg 62 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui of evidence has been led in this regard. It has also been argued that the reply sent to legal notice sent by the plaintiffs establishes the ownership of the defendant by adverse possession. However, the Court is of the view that this is the first document whereby the defendant declared himself to be in possession of the suit property in his own right and from this document onwards, the 12 years period to prove adverse possession could start to run. This document cannot be taken as proof of the ownership by adverse possession.

100. Here, it is important to mention the judgment of the Hon'ble Punjab & Haryana High Court titled Gurcharan Singh v. Mukhtiar Singh MANU/PH/ 0396/2010 as relied upon by the plaintiffs in support of their argument that a tenant in possession of the property cannot set up title by way of adverse possession in view of Section 116, Indian Evidence Act, 1872, challenging the title of the landlord of the property and that 'once a tenant always a tenant.'

101. Accordingly, the defendant has not been able to discharge his burden to prove issue no.4 and the said issue is decided against the defendant and in favour of the plaintiff.

ISSUE NO.3:

CS No.595745/2016 Pg 63 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui Whether the plaintiff is entitled to degree of permanent injunction restraining the defendant from creating third party interest in the suit property? OPP.

102. Now, in view of the findings with regard to issues No.1 and 4, the said issue is also decided in favour of the plaintiffs and against the defendants.

ISSUE NO.2:

Whether the plaintiff is entitled to decree for recovery of damages at the rate of Rs.25000/ per month from the date of filing of the suit till the possession is handed over? OPP.

103. The plaintiffs have also sought damages/user charges from the defendant for use and occupation of the suit property at the rate of Rs.25,000/ per month from the date of filing of the suit till the possession is handed over. The plaintiff has stated in para No.12 of his plaint that the said charges at the rate of Rs.25,000/ per month are being claimed as per the present market rent of the suit property. Although, in their written statement the defendant has denied the contents of the said paragraph but the defendant has failed to make any averments as to the market rate of rent of the suit property as per him. PW1 in her examination in chief by way of affidavit Ex.PW1/A stated that the damages are being claimed at rate of Rs.25,000/ per month which is the present market rate of rent of the suit property. During the CS No.595745/2016 Pg 64 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui cross examination of the said witness, although a suggestion was put to her that she was not entitled to claim possession, damages at the rate of Rs.25,000/ but the same was denied by her. But apart from this, no other evidence was lead on behalf of plaintiffs to establish the rate of rent of the suit property.

104. However, during final arguments, certain documents being in the nature of print outs of screen shots of tentative rate of rent of nearby properties, notification dated 22.09.2014 of Delhi Government showing minimum rates (Circle Rates) for valuation of land for residential/ commercial use along with minimum rates of construction for commercial use as well as relevant extract from the website of MCD showing Darya Ganj in 'Category D' for the purpose of calculation of circle rates has been filed. Accordingly, it was prayed that judicial notice of the prevalent market rate of rent of the suit property could be taken by the Court under the provisions of Section 57 of Indian Evidence Act, 1872.

105. Although, Section 57 of Indian Evidence Act empowers the Court to take judicial notice if certain documents have been produced which enable it to do so, nonetheless, in the entire documents as relied upon the plaintiffs including the plaint, no description of the suit property has been CS No.595745/2016 Pg 65 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui made anywhere. Owing to the fact that it is not disputed that the defendant has been a tenant of the suit property since at least early 1970s and that the rate of rent was around Rs.375/ per month, there is no doubt that the property would be an old construction. In the absence of any evidence having been lead as to the present status of the suit property, any constructions having been raised therein from the start of the tenancy, the facilities that are available on the suit property (lift/parking/waste disposal/security etc.), the Court has no way to know about the said particulars. Further, during final arguments, it was even submitted on behalf of the defendant that the suit property is an old construction and does not have any lift and would fetch around Rs.5,000/ to Rs.10,000/ per month as its rent. Since the onus to prove the said issue was upon the plaintiffs, in the absence of any description of the suit property, the screenshots as relied upon by the plaintiffs would not come to the Court's aid. Further, the notifications showing circle rate would not be of much help in the absence of any averments or evidence having been lead with respect to the covered area of the suit property or its other particulars.

106. As per defendant's own admission, the monthly rate of rent is at least CS No.595745/2016 Pg 66 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui Rs.10,000/ and the plaintiffs have claimed the damages at the rate of Rs.25,000/ per month. Given the fact that the property is situated in Darya Ganj which is located in the heart of Delhi and is a commercial hub, the monthly rent would in the minimum be at least Rs.15,000/ to Rs.20,000/. Therefore, the Court deems it fit that damages be awarded at the rate of Rs.18,000/ per month from the date of filing of the present suit till handing over of the possession of the suit property to the plaintiffs by the defendant.

107. Accordingly, issue No.4 is decided in favour of plaintiffs and against the defendant.

108. At this juncture, it is also pertinent to note that it has been argued on behalf of the defendant that the present Court does not have the jurisdiction to decide the present suit as admittedly, the rent of the suit property is below Rs.3,500/ and accordingly, the defendant has the protection of the Delhi Rent Control Act and the jurisdiction of the civil court is barred by Section 50 of the said Act. However, vide order dated 02.09.2013, the said issue was already decided against the defendant and since the defendant has failed to resort to any legal remedies against the said order, the same has become final and the defendant CS No.595745/2016 Pg 67 of 68 Mohd. Ashraf & Ors. v. Abdul Wahid Siddiqui cannot reagitate the said issue.

RELIEF

109. In view of the findings on the issues hereinabove, the suit of the plaintiffs is decreed and the plaintiffs are awarded following reliefs:

a) The plaintiffs are entitled to the possession of the suit property. The LRs of the defendant are directed to handover physical, peaceful and vacant possession of the suit property i.e. First Floor of property bearing No.152527, Begum Manzil, Pataudi House, Darya Ganj, New Delhi110002 to the plaintiffs within 60 days from the date of the decree.

b) The plaintiffs are also entitled to damages at the rate of Rs.18,000/ per month from the date of filing of the suit till the possession is handed over along with costs of the suit.

110. The decree sheet be prepared in terms of the judgment on the payment of deficient court fees, if any.

111. File be consigned to Record Room. Digitally signed by PAYAL PAYAL SINGAL (This judgment contains 68 pages SINGAL Date:

2023.08.09 and each page has been signed by me.) 16:13:16 +0530 Announced in the open court (PAYAL SINGAL) on 09.08.2023 Civil Judge - 08 (Central)/Delhi CS No.595745/2016 Pg 68 of 68

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Delhi District Court

Mohd. Ashraf vs Abdul Wahid Siddiqui on 9 August, 2023