Delhi District Court
Sultan Ahmed vs Mrs. Mamta on 18 November, 2014
IN THE COURT OF CIVIL JUDGE 07,
CENTRAL DISTT., TIS HAZARI COURTS, DELHI
Presiding Officer: Ms. AANCHAL, DJS
Civil Suit No. : 88/13
Unique ID No. : 02401C0133862001
Mst. Roshanara Begum,
Through LRs,
1. Sultan Ahmed,
2. Saira Banu,
Both R/o 34-B, Pali Hill,
Bandra , Mumbai-400050
Through attorney
Mohd. Saleem,
S/o Sh. Shabeer Ahmed,
R/o 259/5-B, Arviondo Marg, New Delhi
.......Plaintiff
vs
Mrs. Mamta,
W/o Sh. Naresh,
R/o 692, Kundewalan, Ajmeri Gate,
Delhi-110006.
....... Defendant
Date of Institution of suit : 14.03.2001
Date on which reserved for judgment : 20.10.2014
Date of Judgment : 18.11.2014
Mst. Roshanara Begum Vs. Mrs. Mamta Suit No. 88/13 1
JUDGMENT
(1) Vide this judgment, this court shall dispose off the aforesaid suit filed by plaintiff for possession and recovery of damages.
(2) In brief, the facts as pleaded in the plaint are following :-
(a) Smt. Shamshad Begum (Mother of the plaintiff) was the owner/landlord of the property bearing no. 692, Kundewalan, Ajmeri Gate, Delhi which she owned by virtue of registered sale deed. The ownership of the premises in dispute has also been mutated in the name of Smt. Shamshad Begum in House Tax Record of MCD. Smt. Shamshad Begum expired on 10.08.98 leaving behind the plaintiff as her legal heir who became the absolute owner of the suit property.
(b) Originally late Sh. Shori lal was the tenant in respect of one room, common latrine, bathroom on the first floor forming part of suit property at a monthly rent of Rs. 4.50 exclusive of other charges. The premises was let out for residential purposes only. After the death of Sh. Shori Lal his widow Smt. Pushpa and his son Sh. Sunil Kumar being the legal heirs of deceased were in possession of suit property. The said persons were intending to sublet, assign or part with possession of tenanted premises and to this effect, suit for injunction was filed.
(c) Smt. Pushpa and Sh. Sunil Kumar constructed a bathroom in the balcony and converted on big room into one small room, a Mst. Roshanara Begum Vs. Mrs. Mamta Suit No. 88/13 2 kitchen and a store (hereinafter called as suit property) by errecting wall and doors without prior permission and consent of landlord in writing. The mother of plaintiff had sent a notice dt. 24.08.92 thereby called upon said Smt. Pushpa and Sh.
Sunil Kumar to hand over the peaceful vacant possession of suit property to the mother of the plaintiff by midnight of 30.09.92 and to demolish the unauthorized constructed portion. However they failed to comply with the requisitions of said notice. The plaintiff also sent a notice dt. 07.04.99 to the abovesaid persons calling upon hem to hand over the possession of the said premises by 30.04.99 but to no effect.
(d) Smt. Pushpa and Sh. Sunil Kumar also expired and the plaintiff came to know that since 2000, the defendant, who is claiming to be the daughter in law of late Shori lal, is in occupation of suit property. Plaintiff also sent a notice to the defendant dt. 13.04.00 thereby called upon the defendant to handover the vacant and peaceful possession of suit property to the plaintiff as she has not right to retain the possession of the suit property. However, the defendant failed to comply with the requisition of said notice rather she was trying to sublet, assign or otherwise part with the possession of the premises due to which suit for injunction was filed wherein her statement was recorded. The defendant has not paid occupation charges of the premises in question for a long time and the plaintiff is claiming damages/ mesne profit @ Rs. 1000/- per month for the period as permitted in law.
Mst. Roshanara Begum Vs. Mrs. Mamta Suit No. 88/13 3 With these averments the plaintiff prayed for the following :
i. A decree for possession against the defendant thereby directing the defendant to handover the peaceful vacant possession of the suit property.
ii. A decree for recovery of damages against the defendant to the tune of Rs. 36,000/- for the use and occupation of the premises.
(3) The defendant filed the WS wherein preliminary objections are taken that the suit is not maintainable being not signed, verified and instituted by proper and competent person and the plaintiff is not the legal heir of deceased Shamshad and that this court has no jurisdiction to entertain the present suit u/s 50 of DRC Act as the defendant is a tenant under DRC Act and the suit is bad for non-joinder of her children as necessary parties and the suit is barred by limitation and that suit is not correctly valued for the purpose of Court fees and jurisdiction and that relief claimed herein may be claimed in earlier suit no. 127/2000 filed by plaintiff against defendant. On merits, defendant admitted that Smt. Shamshad begum was landlady and Shori Lal was the original tenant in one room, common latrine, bathroom for monthly rent of Rs. 4.50p. But it is denied that Shamshad Begum was owner of suit property by virtue of sale deed or it was mutated in the name of Smt. Shamshad Begum in record of MCD or she expired leaving behind Roshnara Begum as only legal heir or premises was rented only for residential purpose or after the death of Shori Lal, his widow Pushpa and son Sunil were in possession of the same or they unauthorizedly constructed a bathroom in balcony and converted big room in small room, kitchen and store or defendant is in occupation of tenanted premises as unauthorized occupant since March 2000. It is further stated that defendant is the tenant as per law Mst. Roshanara Begum Vs. Mrs. Mamta Suit No. 88/13 4 being the widow of deceased Naresh Kumar S/o Shori Lal and Sh. Shori Lal and his family members have been doing business of binding of stationary in premises from the inception of tenancy. Son of Sh. Shori Lal, Sh. Naresh i.e. husband of defendant also succeeded the tenancy but Sunil Kumar has not been residing in the tenanted premises before 1989 when defendant came to the tenanted premises after her marriage with Lt. Naresh Kumar. Now Charu and Ritika daughters of defendant have also succeeded the tenancy alongwith defendant. It is specifically denied that Smt. Pushpa and Sh. Sunil Kumar ever received any notice dt.
24.08.92 or any notice dt. 07.04.99 was sent by plaintiff calling upon Smt. Pushpa and Sunil to handover the possession of premises by 30.04.99 or notice dt. 13.04.2000 was sent to plaintiff or any such notice was received. Further stating herself alongwith her 2 children as tenant, the defendant expressed her willingness to pay existing rent of Rs. 4.50p per month and stated that plaintiff is not entitled to claim any damage/mesne profits or possession. Finally suit is prayed to be dismissed.
(4) From the pleadings of the parties and hearing, following issues were framed vide order dated 12.10.14 passed by Ld. Predecessor of this Court:
1. Whether the suit of the plaintiff is not maintainable as mentioned in the preliminary objection of the WS from para 1 to 10? OPD
2. Whether the suit of the plaintiff is barred by limitation? OPD
3. Whether the plaintiff is entitled for decree of possession as prayed in the suit? OPP
4. Whether the plaintiff is entitled for decree of damages of Rs. 36,000/-? OPP
5. Relief.
Mst. Roshanara Begum Vs. Mrs. Mamta Suit No. 88/13 5 (5) In order to substantiate his case, plaintiff examined Sh. Mohd. Saleem as PW1 and he relied upon the following documents:-
1. Copy of GPA dt. 29.07.02 as EX. PW 1/1 (OSR).
2. Certified copy of GPA dt. 28.10.98 as EX. PW 1/2.
3. Certified copy of House tax receipt no. 7570 for Rs. 966/- as EX. PW 1/3.
4. Certified copy of death certificate of Smt. Shamshad Begum as EX. PW 1/4.
5. Certified copy of survey report of MCD as EX. PW 1/5.
6. Site plan as EX. PW 1/6.
7. Certified copy of statement given by defendant in the court of Ms. Anu Grover, the then Ld. CJ, Delhi as EX. PW 1/7.
8. Copy of the sale deed in Urdu alongwith translation in Hindi as Mark A. On the other hand, Smt. Mamta as DW1, Sh. R.D. Harit as DW2 and Smt. Swaran Kanta Bakshi as DW3 are examined on behalf of the defendant and they relied upon the following documents:-
1. Original marriage card of defendant as Ex. DW 1/1.
2. Original electricity bill of June 2001 as Ex. DW 1/2.
3. Original water bill of DJB dt. 20.07.01 as Ex. DW 1/3.
4. Copy of new ration car bearing no. APL 57050337 as Ex.
DW1/4.
5. Photocopy of the Election ID card of defendants husband as Ex. DW 1/5.
6. Photocopy of the Election ID card of defendant as Ex. DW 1/6 .
7. The photocopy of electricity bills of Jan., 1982, Aug., 1996, Oct., 1999 and April 2000 as Mark A,B,C and D respectively.
8. The photocopy of water bill dt. 20.05.1999, 20.02.2000 and 08.08.1996 to 06.01.1197 and 07.01.74 as Mark E, F, G and H respectively.
9. Photocopy of old ration card bearing no. 13865 as mark I. (6) Final arguments heard and record is perused carefully. Now the issue-
Mst. Roshanara Begum Vs. Mrs. Mamta Suit No. 88/13 6 wise findings of this court are as under :-
ISSUE NO. 1Onus to prove this issue lies upon the defendant.
Vide the preliminary objections, the suit of the plaintiff is contested mainly for following grounds :-
(1) Suit is filed, signed, verified by a person who is not competent one.
(2) Suit is not valued properly for court fees & jurisdiction. (3) Same relief could be claimed in earlier suit no. 127/2000. (4) Suit is barred u/s 50 of DRC Act and bad for non-joinder of Charu and Ritika two daughters of defendant as parties.
The defendant has admitted that late Sh. Shori Lal had been the tenant under Ms. Shamshad Begum and she herself is claiming the interest through Sh. Shori Lal. Sec. 116 of Indian Evidence Act estops the person claiming through such tenant to deny that landlord of such tenant had, a title to such immovable property at the beginning of tenancy. Therefore rule of estoppel applies and now defendant can not deny the title of Ms. Shamshad Begum as owner of the tenanted property at the beginning of tenancy. PW1 Mohd. Saleem deposed that Shamshad Begum left Roshnara Begum as her only heir and Ms. Roshnara Begum left leaving behind Ms. Saira Bano and Mohd. Sultan as legal heirs. Defendant has not rebutted this deposition in any manner. Nothing is brought on record to discredit this deposition. Hence there is no reason to believe this fact. Cross-examination of PW1 on this fact also did not bring anything by which the execution of the power of attorney in Mst. Roshanara Begum Vs. Mrs. Mamta Suit No. 88/13 7 favour of PW1 may be doubted. Absence of POA holder at the time of execution of attorney by the executant in his favour does not vitiate or invalidate the document. The POA is suggested as fabricated but no document or expert report is produced to substantiate this contention. Hence this contention of the defendant holds no merits.
Qua contentions/ objections regarding valuation of suit and omission on the part of plaintiff to claim relief in earlier suit, defendant neither lead any evidence nor proved the same otherwise. Hence these contentions remain unproved.
Last contention/objection is the prime contention. As per the case of the plaintiff, the tenancy was terminated by Shamshad Begum vide notice dt. 24.08.1992 and then again by Roshnara Begum vide notice dt. 07.04.99 served upon Ms. Pushpa and Sunil upon whom tenancy of Shori Lal is stated to be devolving to the exclusion of defendant or her husband but since 2002 defendant started residing there and she had been in occupation of suit property as a trespasser being not one of the legal heirs as provided u/s 2 (l) of Delhi Rent Control Act.
It is not the case of the plaintiff that tenancy of original tenant Lt. sh. Shori Lal was terminated during his life time. Thus on the death of Lt. Sh. Shori Lal, tenancy shall devolve upon all the legal heirs of Lt. Sh. Shori Lal. PW1 Mohd. Saleem was cross examined at length as to the name of legal heirs of Lt. Sh. Shori Lal. He has admitted that husband of defendant was residing in the suit property. He deposed that he had confusion in the name of defendant's husband but simultaneously he has admitted that there is only Mst. Roshanara Begum Vs. Mrs. Mamta Suit No. 88/13 8 confusion in the names i.e Sinul kumar and Naresh kumar. Thus it can not be said that plaintiff has no knowledge that Lt. Sh. Shori Lal had left two sons namely Sunil Kumar and Naresh Kumar. But it proves that the tenancy had also devolved upon Sh. Naresh Kumar after the death of Sh. Shori Lal. Admittedly no notice of termination of tenancy was sent or served upon Sh. Naresh kumar at any point of time. Therefore there arises no question that tenancy of Naresh Kumar had terminated. Further none of stated these legal notices have been proved on record as per law. Neither true signed copies of the same are produced on record nor any document to show these were sent to the addressees by post or otherwise is produced. In the absence of any such legal notice or proof of dispatch or receipt by addressees, the tenancy of the named legal heirs of Lt. Sh. Shori Lal is also not proved as terminated.
It is strongly contended on behalf of the plaintiff that the tenancy shall devolve as per the provisions of Sec. 2 (l) of DRC Act unlike to the law of Succession after the death of original tenant therefore in view of the restrictions and qualifications provided under this section, defendant or her husband are neither the tenant nor any notice for termination of tenancy is required to be served upon them. Answer to this contention is envisaged in the bare provision itself. Sec. 2 (l) (iii) of DRC Act restrict the persons who would be included in term " tenant" used in DRC Act and thereby enjoying the beneficial provisions of DRC Act, only in the event of death of the person continuing in possession after the termination of his tenancy and not otherwise. Necessary implication is that in case tenancy is not terminated during the life time of tenant, tenancy would devolve upon all the legal heirs as per the general rule of succession and their interest in the tenanted premises shall not be restricted or excluded u/s 2 (l)(iii) of DRC Act. This Mst. Roshanara Begum Vs. Mrs. Mamta Suit No. 88/13 9 proposition of law is also clarified and explained by Hon'ble High Court of Delhi in RSA 91/2004 titled as " Naresh Chadha & Ors. Vs. Dharamveer Singh & Ors." decided on 03.03.14 in following words :
" The effect of Section 2(l) is that where the contractual tenancy as regards residential premises of a tenant is terminated in his life time, the tenancy rights are not inherited by all the legal heirs specified under the Hindu Succession Act but only by such family members who are specified in Section 2(l). ...................... In case, contractual tenancy of tenant of residential premises is not terminated during the life time of a tenant, in such circumstances, the rights are not inherited by limited persons specified in Section 2(l) and tenancy rights would be inherited by all the legal heirs under the Hindu Succession Act i.e. for limited inheritance under section 2 (l) it is necessary in the life time of tenant contractual tenancy must be terminated by serving of a notice under section 106 of the Transfer of Property Act, 1882."
Thus it is held that upon the death of original tenant Sh. Shori Lal, tenancy would devolve upon his all legal heirs i.e. wife Ms. Pushpa and two sons Naresh and Sunil and further upon the death of Naresh, defendant alongwith her two daughters Ms. Charu and Ritika shall succeed the tenancy rights to the extent of share of Naresh in the suit property and defendant alongwith her two daughters are not excluded from the term " tenant" used in DRC Act as the tenancy of Lt. Sh. Naresh had not been terminated during his life time. Hence defendant alongwith her two daughters are tenants who are protected against eviction under the provision of sec. 14 of Delhi Rent Control Act and the jurisdiction of this Court being a civil court is barred u/s 50 of Delhi Rent Control Act.
Hence the issue qua last objection is decided in favour of defendant and against plaintiff.
Mst. Roshanara Begum Vs. Mrs. Mamta Suit No. 88/13 10 ISSUE No. 2 Onus to prove this issue lies upon defendant.
Defendant neither led any evidence qua this issue nor prove it otherwise. Hence it remains unproved and it is decided against defendant and in favour of plaintiff.
ISSUE No. 3 & 4As discussed while deciding issue no. 1, defendant is protected under sec. 14 of DRC act and the jurisdiction of this court is bared u/s 50 of DRC Act. Hence the plaintiff is neither held entitled for possession nor for damages and these issues are decided against plaintiff and in favour of defendant.
ISSUE No. 5.
RELIEF For above discussion, plaintiff is held not entitled for any relief. Accordingly, the suit of the plaintiff is dismissed. No order as to cost.
Decree Sheet be prepared accordingly. Thereafter file be consigned to Record Room.
Announced in Open Court on 18.11.14 at 4:30pm AANCHAL CIVILJUDGE-07(CENTRAL) DELHI/18.11.2014 Mst. Roshanara Begum Vs. Mrs. Mamta Suit No. 88/13 11 Suit No. 88/13 Mst. Roshanara Begum Vs. Mrs. Mamta 18.11.2014 Present : None for parties.
Vide separate judgment passed on even date, plaintiff is held not entitled for any relief. Accordingly, the suit of the plaintiff is dismissed. No order as to costs.
Decree Sheet be prepared accordingly. Thereafter file be consigned to Record Room.
AANCHAL Civil Judge-07 Delhi/18.11.14 Mst. Roshanara Begum Vs. Mrs. Mamta Suit No. 88/13 12