Delhi District Court
Suit No. 601/14 Abdul Khalique (Since ... vs . on 19 May, 2014
IN THE COURT OF SH. PRANJAL ANEJA
CIVIL JUDGE-06, CENTRAL, TIS HAZARI COURT, DELHI
Suit No. 601/14
Old no. 179/76
Unique ID No. 02401C0028031995
Sh. Abdul Khalique (deceased)
Through LRs
1. Smt. Ahatija Begum (widow)
2. Sh. Mohd. Sdiq (son)
3. Sh. Mohd. Sabir (son)
4. Sh. Mohd. Zakir (son)
5. Sh. Mohd. Sakir (son)
6. Sh. Mohd. Javed (son)
All R/o 6397, Qasabpura, Basti Chhatanki,
Sadar Bazar, Delhi-110006
7. Mst. Mehmooda Begum (daughter)
W/o Sh. Mohd. Sahid
R/o 6069, Nawab Road,
Sadar Bazar, Delhi.
8. Mst. Saira Bano (daughter)
W/o Sh. Mohd. Saleem
R/o H.No. 6251, Quresh Nagar,
Sadar Bazar, Delhi
9. Mst. Zubeda Begum (daughter)
R/o Aslam Road,
Karanchi (Pakistan)
10. Sh. Abdul Hamid (son)
Najmabad, Bara Maidan,
Karanchi (Pakistan)
Suit no. 601/14 Abdul Khalique (since deceased through LRs) & Ors Vs.
Vs. Mohd Din (since deceased through LRs) & Ors.
Page no. 1 of 15
Dated: 19.05.2014
11. Mst. Jebun (daughter)
W/o Sh. Riazuddin
R/o 11150, Sadar Thana Road,
Delhi.
12. Mst. Hajra Begum (daughter)
W/o Sh. Nesimuddin
R/o 42365, Sadar Thana Road,
Sadar Bazar, Delhi.
13. Smt. Shamina Begum (w/o deceased son Sh. Abdul Majid)
14. Master Mohd. Abid
Minor Son of Abdul Majid
15. Master Mohd. Naseem
Minor Son of Abdul Majid
16. Master Mohd. Nadeem
Minor Son of Abdul Majid
17. Master Mohd. Amzad
Minor Son of Abdul Majid
18. Master Mohd. Sajid
Minor Son of Abdul Majid
Through their mother natural
guardian and next friend, Smt. Shamina Begum
All R/o H. No. 6417,
Basti Chhatanki, Sadar Bazar, Delhi.
... Plaintiffs
Suit no. 601/14 Abdul Khalique (since deceased through LRs) & Ors Vs.
Vs. Mohd Din (since deceased through LRs) & Ors.
Page no. 2 of 15
Dated: 19.05.2014
Versus.
1. Mohd. Din (deceased)
through LRs
(i) Mohd. Anwar (son)
R/o 2238, Naya Mohalla,
Gali Qasim Jaan Ballimaran,
Delhi-110006.
(ii) Mohd. Ghaffar (son)
R/o 3258, Gali Faratullah,
Kucha Pandit, Lal Qua,
Delhi-110006.
(iii) Mohd. Mukhtar (son)
R/o 2183, Ahata Kale Sahab,
Gali Qasim Jaan, Ballimaran,
Delhi-110006.
(iv) Nargis Jahan Begum (daughter)
W/o Mohd. Din
Hno. 1564, Gali Chhoti Peepalwali,
Pahari Bhoja Chitli Qabar, Delhi-110006
(v) Sabra Begum (daughter)
R/o A/66, Christian Colony,
Patel Chest, Mauris Nagar, Delhi.
2. Sh. Allauddin (deceased)
Through LRs
(i) Jammo W/o Allauddin
(ii) Ziauddin S/o Allauddin
Suit no. 601/14 Abdul Khalique (since deceased through LRs) & Ors Vs.
Vs. Mohd Din (since deceased through LRs) & Ors.
Page no. 3 of 15
Dated: 19.05.2014
(iii) Rano D/o Allauddin
W/o Sh. Zakir
All R/o : 6416, Gali Kuppi Wali,
Chhatanki, Chowk Quresh Nagar,
Sadar Bazar, Delhi.
(iv) Salauddin S/o Sh. Allauddin
R/o 6305, Nawab Road, Sadar Bazar, Quresh Nagar,
Delhi-110006.
(v) Farida D/o Allauddin
W/o Sh. Naseem
R/o H.No. 6620, Gali Kumhar Wali,
Ahata Kidara, Bara Hindu Rao,
Delhi-110006.
(vi) Anida D/o Allauddin
W/o Sh. Parvez
R/o H No. 6725, Ahata Kidara,
Bara Hindu Rao, Delhi-110006.
(vii) Sh. Fariduddin
S/o Sh. Karimuddin
R/o 6399, Basti Chhantanki,
Qasabpura, Delhi-110006.
... Defendants
SUIT FOR DECLARATION & INJUNCTION
DATE OF INSTITUTION OF THE CASE : 02.11.1974
DATE ON WHICH RESERVED FOR ORDER : 12.05.2014
DATE OF JUDGMENT : 19.05.2014
Suit no. 601/14 Abdul Khalique (since deceased through LRs) & Ors Vs.
Vs. Mohd Din (since deceased through LRs) & Ors.
Page no. 4 of 15
Dated: 19.05.2014
JUDGMENT
1. The relevant facts of the case in brief, as per plaint, are that plaintiff and Sh. Karimuddin (father of both defendant no.2 & 3 and real uncle of plaintiff) constructed property bearing Municipal no. 6417, Basti Chhitanki, Qasab Pura, Delhi on a plot of DDA before year 1947, however DDA began to charge damages in the name of Sh. Karimuddin only.
2. It is alleged that both plaintiff and Karimuddin had possession of said property and later both let it out to defendant no.1 vide rent note dated 03.04.1961 w.e.f. 01.04.1961 at a monthly rent of Rs. 60/-. That plaintiff and Karimuddin realised rent of Rs. 360/- from defendant no.1 on 03.04.1961 for period 01.04.1961 to 30.09.1961 and issued rent receipt to him duly signed by plaintiff and thumb mark by Karimuddin. Both realised rent from defendant no.1 till Karimuddin was alive and who died in September/October 1967 leaving behind his widow Mst. Bibbo and sons defendant no.2 and defendant no.3.
3. It is further alleged that the said legal heirs of Karimuddin refused to issue joint rent receipt with plaintiff and also refused to admit plaintiff as co- owner and co-landlord of the property. Defendant no.2 and 3 again refused so even after the deed of Mst. Bibbo.
4. Plaintiff alleges that he also approached defendant no.1 for rent and its arrears to the extent of 50 % share but defendant no.1 refused to pay only to plaintiff and told that he would pay entire arrears of rent to plaintiff and defendant no. 2 and 3 against a joint rent receipt.
5. Further alleged that plaintiff has recently come to know that defendant Suit no. 601/14 Abdul Khalique (since deceased through LRs) & Ors Vs. Vs. Mohd Din (since deceased through LRs) & Ors.
Page no. 5 of 15 Dated: 19.05.2014 no.2 and 3 in collusion with defendant no.1 want to take possession of property and thus it is necessary to restrain by permanent injunction defendant no.2 and 3 from taking possession from defendant no.1 and from realising rent and arrears.
6. It is thus prayed that plaintiff be declared as co-owner and co-landlord having 50 % share alongwith defendant no.2 and 3 and that defendant no.1 is a tenant jointly under plaintiff and defendant no.2 and 3 and they are entitled to realise rent and arrears jointly from defendant no.1. Permanent injunction is also claimed restraining defendant no.2 and 3 from taking possession of property from defendant no.1 in collusion.
7. In WS filed by defendant no.1 the letting out of premises by plaintiff and Karimuddin vide rent note is admitted. The other averments of the plaint are also not denied including the fact that defendant no.1 refused to pay rent only to plaintiff and insisted for joint rent receipt signed by plaintiff and defendant no.2 and 3.
8. In replication filed to the WS of defendant no.1, the averments of plaint are reaffirmed.
9. In WS filed by defendants no.2 and 3 the preliminary objection taken is that the suit is barred by time. It is contended that land under the premises belongs to DDA and Karimuddin, late father of defendant no.2 and 3, was the lessee of the land and premises was constructed over it by him and not with plaintiff jointly. That after the death of Karimuddin, the land and property was mutated in the name of his widow Smt. Bibbo i.e.mother of defendant no.2 and 3. Further contended that infact and in law Karimuddin was the owner of property and was also paying lease money/damages to DDA and plaintiff has Suit no. 601/14 Abdul Khalique (since deceased through LRs) & Ors Vs. Vs. Mohd Din (since deceased through LRs) & Ors.
Page no. 6 of 15 Dated: 19.05.2014 no concern with the property. That after the death of Smt. Bibbo, defendant no. 2 and defendant no.3 are owners of the property. That the alleged rent note is false and fictitious document and the suit is collusive between plaintiff and defendant no.1. All other averments of the plaint are denied.
10. In replication filed tot he WS of defendant no.2 and 3 the averments of plaint are re-affirmed and those of WS are denied.
11. The following issue were framed in the suit:
1. Is the plaintiff a co-landlord alongwith the defendant no. 2 and 3?
2. Is the plaintiff entitled to any share in rent?
3. Is the suit maintainable in the present form?
4. Is the suit time barred?
5. Relief?
12. Vide order dated 09.01.1979 an additional issue was also framed as:
"Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction? OPD."
13. It is here pertinent to note that a suit simpliciter for recovery of arrears of rent was filed later to the present suit by defendant no.2 & 3 against defendant no.1 and was registered as C.S. No. 28/75 (old)/599/14 (New) and in that suit vide order sheet dated 18.03.1981 it was consolidated with the present suit and two additional issues were framed as under:
1. whether the suit no. 179/76 is properly valued for the purposes of Court fee and jurisdiction? OPP (Abdul Khaliq)
2. whether Abdul Khaliq, plaintiff is co-owner of the property in suit, if so its effect? OPP (Abdul Khaliq) 1st issue is covered under additional issue as above and 2nd issue is Suit no. 601/14 Abdul Khalique (since deceased through LRs) & Ors Vs. Vs. Mohd Din (since deceased through LRs) & Ors.
Page no. 7 of 15 Dated: 19.05.2014 covered under issue no.1 already framed.
14. Later on, another suit i.e. 3rd suit, similar to the 2nd suit, was filed in 1986 by defendant no.2 and 3 against defendant no.1, also for simpliciter recovery of arrears of rent for different period and it was registered as 34/93 (old)/C.S. 600/14 (new). It is noted that while order sheet dated 18.03.1981 of the 2nd suit records the consolidation of 1st and 2nd suit, the order sheet dated 06.08.1993 of this suit records the statement on behalf of plaintiff to the effect that the evidence of plaintiff be read in all three cases which have been consolidated.
15. To substantiate his case, plaintiff got himself examined as PW-. Plaintiff also got examined Hem Chandra, deed writer as PW2. In documentary evidence, plaintiff filed and relied upon rent agreement Ex P-1 and its English Translation. PW-2 filed documents Ex PW2/1 and Ex PW2/2.
16. In the 2nd suit plaintiffs examined LDC from DDA who brought record pertaining to the suit property showing the mutation in the name of plaintiffs and exhibited documents which are notices Ex PW1/1 to Ex PW1/3 and receipts for recovery of damages as Ex PW1/4 to Ex PW1/13. Therein (in 2nd suit) defendant i.e. defendant no.1 herein also got himself examined.
17. I have heard the arguments and perused the record. My issuewise finding in the present suit is as under:-
18. ISSUE NO. 1 & 2.
1. Is the plaintiff a co-landlord alongwith the defendant no. 2 and 3?
2. Is the plaintiff entitled to any share in rent?
Both issues are connected, hence taken together. The claim of the Suit no. 601/14 Abdul Khalique (since deceased through LRs) & Ors Vs. Vs. Mohd Din (since deceased through LRs) & Ors.
Page no. 8 of 15 Dated: 19.05.2014 plaintiff in the present suit is that he be declared as co-owner and co-landlord of property bearing Municipal no. 6417, Basti Chhitanki, Qasab Pura, Delhi to the extent of 50 % share alongwith defendant no.2 and 3 and entitled to realise rent from defendant no.1 jointly with defendant no.2 and 3.
19. It is observed that the tenant /defendant no.1 in his pleadings of WS supports the case of plaintiff admitting the rent agreement propounded by plaintiff. While on the other hand defendant no.2 and defendant no.3 Vehemently oppose by alleging that their late father Karimuddin was the sole owner and landlord.
20. Now moving towards the factual averments of the plaint, it is observed that in plaint para no.1 it is averred that plaintiff and his uncle Karimuddin constructed property bearing Municipal no. 6417 on plot of land belonging to DDA before the partition of country in 1947. But in his examination in chief recorded on 28.04.1978 plaintiff./PW-1 states that building was constructed over land after 1947. This deposition is in clear contradiction to the pleading. Further, in cross examination on same date PW-1 deposed that he cannot tell when premises was constructed. PW1 even stated that he cannot tell the year. He also stated that it might be constructed 15 years ago. This evidence was recorded in 1978 and therefore, 15 years ago would be some where the year 1963, which is again in contradiction with the pleadings.
21. Regarding the death of Karimuddin, the pleadings and evidence are not in consonance as in plaint para 4 it is averred that Karimuddin died in September/October 1967 while in cross examination plaintiff/PW-1 stated that he died in 1960-61
22. PW-1 was also cross examined upon the details of construction. He Suit no. 601/14 Abdul Khalique (since deceased through LRs) & Ors Vs. Vs. Mohd Din (since deceased through LRs) & Ors.
Page no. 9 of 15 Dated: 19.05.2014 deposed that he has got the receipt regarding the material used in construction. But it is noted that no such receipt was filed by plaintiff on record. Here adverse inference is drawn against plaintiff that the receipt alleged to be with him does not favours him and therefore, he did not file the same in evidence.
23. PW-1 also deposed that he cannot tell from whom material was purchased and he did not keep any account of the expense incurred in construction and he cannot even tell the name of the mason who constructed the premises.
24. Upon money invested, PW-1 deposed that he incurred in half share but did not obtain any receipt. PW-1 even admitted that he did not write any letter to DDA to state that he also constructed the premises and therefore, his name be also mutated.
25. PW-1 also deposed that after the death of Karimuddin when he came to know that defendant no.2 and 3 are getting mutation of premises in their names, he did not take any action with DDA. He further deposed that he has no documentary proof to show that he and Karimuddin both are owners of the suit property. He even admitted that he never paid any tax to DDA or corporation and Karimuddin only paid. Plaintiff/PW-1 also stated that Karimuddin was elder and having become owner he paid the taxes and plaintiff does not know what was the tax payable.
26. The above noted depositions of plaintiff/PW-1 gives a clear picture that plaintiff does not have any document qua ownership of the property and his name is admittedly nowhere in DDA records and not even mutated after Karimuddin's death and moreso he never took any action or initiative to get Suit no. 601/14 Abdul Khalique (since deceased through LRs) & Ors Vs. Vs. Mohd Din (since deceased through LRs) & Ors.
Page no. 10 of 15 Dated: 19.05.2014 his name recorded/mutated in the records of DDA or corporation either before or after the death of Karimuddin. On the other hand, defendant no.2 and defendant no.3 in the 2nd suit got examined official witness from DDA who brought record pertaining to the suit property showing the mutation in their names and documents are Ex PW1/1 to Ex PW1/13 (placed in 2nd suit file).
27. In this eventuality plaintiff has no case at all to get himself declared as co-owner of the suit property. Moreover, plaintiff himself having clearly pleaded in para 1 of the plaint that the plot of land presently belongs to DDA, he has no occasion and right to get declaration of ownership. As far as the premises constructed over the plot is concerned, it has already been observed in the foregoing paras that plaintiff has utterly failed to prove that he also made construction or invested in it. Plaintiff has not filed a single document to prove his share in the construction of premises. Furthermore, as he claims ownership over DDA land, DDA is a necessary party but it was not impleaded and therefore, the suit is also bad for non-joinder of necessary party.
28. With regard to plaintiff's claim of co-landlordship qua tenant /defendant no. 1 and entitlement to 50 % rent is concerned, it is seen that plaintiff has filed a rent agreement Ex P-1with its English translation, alleging that it was entered into between him and Karimuddin as co-landlord and defendant no.1 as tenant @ Rs. 60/- per month rent w.e.f. 01.04.1961 and Rs. 360/- as rent was realised on 03.04.1961 for the period 01.04.1961 to 30.09.1961 and a rent receipt was issued in favour of defendant no.1.
29. The defendant no. 2 and 3 dispute this rent agreement stating it to be false.
Suit no. 601/14 Abdul Khalique (since deceased through LRs) & Ors Vs. Vs. Mohd Din (since deceased through LRs) & Ors.
Page no. 11 of 15 Dated: 19.05.2014
30. Plaintiff/PW-1 also deposed upon this rent agreement Ex P-1. It is pertinent to note that while plaintiff/PW-1 in his examination in chief deposed that his signature appear at Mark A, and on the other hand, the deed writer PW-2, who is another witness of plaintiff, deposed that at mark A "Mohd. Hanif s/o Abdul Wahad R/o Kasabub Pura" is written. And most importantly the said deed writer PW-2 alleging himself to have written the rent agreement Ex P-1 deposed in the opening sentence of his cross examination on 28.04.1978, that there is no signature of plaintiff at any place on the rent agreement Ex P-1. Thus, when the deed writer of the said document and being the witness of plaintiff, states that the document does not bear the signature of plaintiff anywhere, it alone leaves the document Ex P-1 in the clouds of doubts. The English translation of this document filed on 28.09.2013 is of no help and it also does not show that plaintiff signed the said rent agreement. The translation even does not displays the signatures/thumb impression of Karimuddin. Rather, reading of this English translation gives a picture that the rent agreement Ex P-1 was unilaterally got written allegedly by defendant no.1 alleging that he has taken on rent the property from Karimuddin and Abdul Khaliq (plaintiff). This fact becomes more clear from the deposition of PW-2 in his examination in chief where he stated that defendant no.1 got this document written and this thumb impression is at Mark B. Furthermore, it is also noted that while plaintiff/PW-1 in his examination in chief deposed that he was present at the time when rent agreement was written but PW-2 in his examination in chief deposed that he cannot say if the persons in whose favour it was written were present. PW-2 did not bring his register no. 48 in which he alleges to record this document.
Suit no. 601/14 Abdul Khalique (since deceased through LRs) & Ors Vs. Vs. Mohd Din (since deceased through LRs) & Ors.
Page no. 12 of 15 Dated: 19.05.2014
31. Plaintiff/PW-1 in his examination in chief deposed that defendant no.1 also signed on the rent agreement but the English translation itself records that tenant Mohd. Deen is written in English with thumb impression. The translation does not records that there is signature of defendant no.1. Even PW2 deposed in his examination in chief that thumb impression of defendant no.1 is at mark B. The name of defendant no.1 written in English is nowhere alleged to be the signature of defendant no.1 done by defendant no.1 himself. It is important to note that plaintiff did not call any witnesses to this document to prove its execution. Plaintiff also did not prove the thumb impression allegedly of Karimuddin upon the rent agreement Ex P-1. The deed writer PW-2 even deposed that he did not knew the beneficiaries of this document and neither he knew the witnesses and he wrote the names without any verification. PW-2 also deposed that it is possible that any person can get such rent agreement written. Thus, in view of the above findings, it is concluded that plaintiff has failed to prove the rent agreement Ex P-1.
32. Regarding the receiving of rent, plaintiff/PW-1 admitted that he does not have any counter-foil of rent receipt. PW-1 stated in cross examination also state that he had sent a notice to defendant no.1 for rent that he has that notice and postal receipt. But plaintiff did not file said notice and postal receipt, hence adverse inference is drawn here also against the plaintiff.
33. Further, it is noted that in plaint Para 7 it is averred that plaintiff approached defendant no.1 for rent but defendant no.1 refused to pay, but in cross examination (page 8) plaintiff/PW-1 deposed that after the death of Karimuddin, he received rent from defendant no.1. This is yet another major contradiction seen between the pleadings and testimony of plaintiff.
Suit no. 601/14 Abdul Khalique (since deceased through LRs) & Ors Vs. Vs. Mohd Din (since deceased through LRs) & Ors.
Page no. 13 of 15 Dated: 19.05.2014 Plaintiff/PW-1 has at page no.9 of his cross examination admitted that he does not have any document to show that he used to receive half the rent from the tenant /defendant no1 and he does not have any receipt; Merely that the tenant/ defendant no.1 is supporting plaintiff, that does not goes on to prove the case of plaintiff in the above findings including the contradictions as observed.
34. In view of the above findings, it is concluded that plaintiff has failed to prove that he is co-landlord of the property and is entitled to 50 % share in rent. Consequently, the plaintiff is also not entitled to any relief of permanent injunction.
35. ISSUE No.3.
3. Is the suit maintainable in the present form?
Defendant no.2 and 3 although raised this objection but they failed to prove how this suit is not maintainable in the present form. Accordingly, it is decided in favour of plaintiff.
36. ISSUE NO. 4.
4. Is the suit time barred?
Plaintiff has claimed declaration w.r.t. co-ownership and co-landlordship and also his entitlement to receive 50 % rent jointly with defendant no.2 and 3. In the plaint it is averred that after the death of Karimuddin in September/October 1967 he approached the legal heirs of Karimuddin with request to issue joint rent receipt to defendant no.1 as was done earlier but they refused even to admit plaintiff as co-owner/co-landlord. Thus, cause of action began to run in 1967 itself but plaintiff filed the present suit only in 1974 i.e. much after the statutory period of Limitation of three years as stipulated in Suit no. 601/14 Abdul Khalique (since deceased through LRs) & Ors Vs. Vs. Mohd Din (since deceased through LRs) & Ors.
Page no. 14 of 15 Dated: 19.05.2014 Article 58 of the Limitation Act, 1963. Thus, the suit of plaintiff is barred by time. Issue no. 4 is accordingly decided against plaintiff.
37. ADDITIONAL ISSUE FRAMED ON 09.01.1979 "Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction? OPD."
onus of this issue is upon the defendants but they did not discharge it, hence issue decided against them.
RELIEF On the basis of the findings on all the issues, the present suit is dismissed.
In the circumstances of the case, no order as to costs. Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in open court on 19.05.2014.
(PRANJAL ANEJA) CJ-06 (Central) Delhi Tis Hazari Courts.
Suit no. 601/14 Abdul Khalique (since deceased through LRs) & Ors Vs. Vs. Mohd Din (since deceased through LRs) & Ors.
Page no. 15 of 15 Dated: 19.05.2014