Delhi District Court
Philomina Gervase vs Ravin Mehra on 17 December, 2019
IN THE COURT OF SH. AJAY PANDEY
ADDITIONAL DISTRICT JUDGE 02, NORTHWEST
ROHINI COURT: DELHI.
CS No. 53/19
1. Philomina Gervase
W/o Thomas Gervase.
2. Thomas Gervase
Both R/o DDA, MIG Flat no. 379,
Ground Floor Pocket R (U)
Pitampura, New Delhi110034. Plaintiffs
Vs
1. Ravin Mehra
S/o late P.N. Mehra
4B702 Klala Patru Estate
Pimle Gurav, Pune,
Maharashtra411061.
2. DDA, Vikas Sadan
New Delhi Defendants.
ORDER:
1. This order shall decide the issue of maintainability Philomina Gervase and Ors. Vs Ravin Mehra and ors.
CS No. 53/19 Page no. 1 of 25 of the present suit in the present form and also the question of limitation.
2. Vide his order dated 16.07.2019, my learned predecessor had granted an opportunity to both the sides to argue on the maintainability of suit in its present form and also on the question of limitation.
3. Since the maintainability and point of limitation were treated as preliminary issue, same are to be decided on the basis of averments in the plaint and the documents relied upon by plaintiff or admitted by parties.
4. It is interalia stated in the plaint that the subject property DDA flat no. 379, ground floor, pocket RU, MIG, Pitampura (hereinafter referred to as suit property) was alloted to late Sh. P.N. Mehra, father of defendant no.1 by defendant no.2 DDA in 1985. Possession of the said property was given by DDA to allottee Sh. P.N. Mehra on 10.05.1986. Plaintiff is living in the said property peacefully since last more than 28 years. Earlier plaintiffs were paying rent @ Rs.1000/ per month to Sh. P.N. Mehra but later on Sh. P.N. Mehra executed an agreement to sell, Will, GPA, SPA in favour of plaintiff no.1 on 24.02.1999 . It is stated that through these documents Sh. P.N. Mehra sold out the property to plaintiff Philomina Gervase and Ors. Vs Ravin Mehra and ors.
CS No. 53/19 Page no. 2 of 25 no.1 for a sum of Rs.4.00 lakhs. Sh. P.N. Mehra, had also given an authority letter dated 07.03.2005 in favour of plaintiff no. 1 to contact DDA and to get the property free hold and to get the same further transferred in the name of plaintiff no.1. DDA also wrote a letter to plaintiff no.1 for conversion of property in her name vide letter dated 12.04.2010. Plaintiff also wrote a letter dated 29.10.2010 to DDA requesting to transfer the property in her name on the basis of title documents executed by late Sh. P.N. Mehra. It is further stated that it was agreed between the parties that Sh. P.N. Mehra would get the property free hold in his own name and later on he would transfer the property in the name of plaintiff no.1. Plaintiffs paid all installments/dues of DDA and balance payment to P.N. Mehra and defendant no.1 and nothing remained due towards her liability as per agreement dated 24.02.1999. It is therefore stated that plaintiff became the actual owner of suit property. Sh. P.N. Mehra or defendant no.1 never lived in the property. Original documents of the property are stated to be with plaintiff, who acquired it by paying the purchase price to Sh. P.N. Mehra and installments to DDA.
5. It is further stated that on the basis of forged documents i.e. a Conveyance Deed obtained by fraud from Philomina Gervase and Ors. Vs Ravin Mehra and ors.
CS No. 53/19 Page no. 3 of 25 defendant no.2, defendant no.1 on 09.06.2017, filed a petition u/s 14 (1) (e) r/w section 25B of Delhi Rent Control Act in respect of the suit property. It is further stated that no question of landlord and tenant was involved and plaintiff were claiming themselves as owner of property whereas defendant no.1 was also claiming himself as owner of property, but defendant no.1 obtained an eviction order dated 01.05.2018 against the plaintiff by concealing true facts before the court of learned Rent Controller. Plaintiffs preferred a revision petition before the Hon'ble High Court but the title and other documents of property were not available with plaintiffs at that time. Hon'ble High Court considered the facts and legal provisions only on the basis of available documents of defendant no.1 and dismissed revision petition of plaintiffs vide his order dated 08.01.2019, copy of which is annexed along with plaint. It is stated that plaintiffs were regularly paying charges to DDA through challan and by cheques, the plaintiffs were also paying monthly installments and property tax to MCD but defendant no.2 issued a Conveyance Deed of property in favour of defendant no.1. Defendant no.1 never resided in the property. Father of defendant no.1 Sh. P.N. Mehra, did not pay the installments of DDA and therefore the title of property Philomina Gervase and Ors. Vs Ravin Mehra and ors.
CS No. 53/19 Page no. 4 of 25 was not available for transfer in favour of defendants. It is further stated that defendant no.1 was bound by agreement of previous owner Sh. P.N. Mehra. Plaintiffs requested the defendants several times to get the title record corrected in their name but to no avail. In the cause of action paragraph no. 45 of the plaint it is stated that cause of action to file the present suit arose on 22.07.2017 when plaintiffs received the summons issued by the court of learned Rent Controller in RC No. 50/2017 titled as "Ravin Mehra Vs Thomas Gervas and Ors." of the petition filed by defendant no.1. It further arose when defendant no.1 filed the execution petition before learned trial court. It further arose on each and every date when the plaintiffs requested the defendants to admit their claim in respect of suit properties. It further arose on 08.01.2019 when Hon'ble Delhi High Court dismissed the revision petition. Cause of action is stated to be subsisting and continuous. Hence, the present suit.
6. Prayer of the suit is quoted herein below:
1. Declare that the Mutation/Substitution of lease and further the conveyance deed obtained by way of fraud/misrepresentation by the defendant no.1 with defendant no. 2 (DDA) for the suit property DDA flat no. 379, Ground Philomina Gervase and Ors. Vs Ravin Mehra and ors.
CS No. 53/19 Page no. 5 of 25 Floor, Pocket R(U) MIG Pitampura, Delhi34 and same is illegal and void.
2. Declare that the Legal Heirs of the late P.N. Mehra left with no right, title, and interest in the suit property.
3. Declare the plaintiff is the real/actual and Lawful owner of the suit property bearing no. DDA flat no. 379, Ground Floor, Pocket R(U) MIG Pitampura, Delhi34 by way of will executed on dated 24.02.1999 & Receipts, Agreement to sell, GPA/SPA. Else alternatively grant a decree for refund the entire money/cost/expenses with 24% p.a. yearly compounded till the date of decree.
4. Consequently due to eviction order passed by Sh. Naveen Kumar Kashyap, SCJRC, NW/Rohini Court, Delhi passed in RC No. 50/2017 dated 01.05.2018 titled as "Ravin Mehra vs Thomas Gervas & Ors shall be null and void.
5. That the plaintiff may be awarded the cost and litigation expenses of the suit.
6. Any other relief which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case and in the interest of justice.
Philomina Gervase and Ors. Vs Ravin Mehra and ors.
CS No. 53/19 Page no. 6 of 25
7. This court has heard lengthy arguments advanced by learned counsel for parties on the of maintainability of suit in its present form and on the issue of limitation.
8. Learned counsel for plaintiff has relied upon following citations in support of his arguments :
1. United India Insurance Co. Ltd. Vs. Rajendra Singh and others etc. Civil Appeal No. 2087 of 2000 (Arising out of SLP(C) No. 8479 of 1999) decided on 14.3.2000.
2. Kanchan Kapoor and others Vs. Sarwan Kumar R.C.R. No. 338 of 2011 and C.M. No. 15924 of 2011 (stay). Decided by Hon'ble Delhi High Court on 17.11.2014.
3. Nagendra Kumar Vs. Malik Tejram Anand and anr. C.R. No. 725 of 1973 decided by Hon'ble Delhi High Court on 30.4.1975.
4. Anita Joshi Vs. Chhati Yadav and ors. CM(M) No. 468 of 2012 decided by Hon'ble Delhi High Court on 07.09.2012.
5. Rameshwar Dayal Vs. Banda (Dead) through his LRs Civil Appeal No. 140 of 1993 (Arising out of SLP (Civil) No. 10363 of 1991 decided by Hon'ble Supreme Court of India on 13.1.1993.
6. Mrs. Hem Nolini Judah (since deceased) and after her Philomina Gervase and Ors. Vs Ravin Mehra and ors.
CS No. 53/19 Page no. 7 of 25 legal representatives Mrs. Marlean Wilkinson Vs. Mrs. Isolyne Sarojsbashini Bose and others Civil Appeal No. 273 of 1959 decided by Hon'ble Supreme Court of India on 16.2.1962.
7. Md. Nooman & Ors. Vs. Md. Jabed Alam & Ors. Civil Appeal No. 2579 of 2004 decided by Hon'ble Supreme Court of India on 22.09.2010.
8. Deva Ram and another Vs. Ishwar Chand and another Civil Appeal No. 3112 of 1995 decided by Hon'ble Supreme Court of India on 16.10.1995.
9. Suraj Lamp and Industries Pvt Ltd Vs State of Haryana and Ors., Special Leave Petition ( C) No. 13917/09, decided on 11.10.2011.
9. In United India Insurance case (Supra), the Apex Court held that no Court or tribunal can be regarded as powerless to recall its own orders if it is convinced that the order was obtained by fraud or misrepresentation.
10. In Kanchan Kapoor's case (Supra) Hon'ble High Court of Delhi observed that once Civil Court has passed a judgment holding that the respondent is not owner of suit premises, principal of estoppel constructive res judicata would Philomina Gervase and Ors. Vs Ravin Mehra and ors.
CS No. 53/19 Page no. 8 of 25 apply.
11. In Nagendra Kumar's case (Supra), Hon'ble High Court of Delhi held that a tenant who has been ejected on the ground of subletting is competent to file a civil suit for determination of title.
12. In Anita Joshi's case (Supra), in a suit for possession and recovery of rent, one of the respondent claimed to have purchased the suit property independently and further claimed to be in possession of the same. Hon'ble High Court observed that the said respondent can establish his title to the property in independent proceedings.
13. In Rameshwar Dayal's case (Supra), it was held that a Court of Small Causes had incidentally determined question of title which was not directly and substantially in issue and therefore it will not operate as res judicata.
14. In Hem Nolini Judah's case (Supra), it was held that in Petition U/s 213 of Succession Act, question of title are not decided and it will not operate as estoppel or res judicata.
15. In Mohd. Nooman's case (Supra), it was held that decision of rent Court would not operate as res judicata where question of title was gone into incidentally and collaterally and not as expressly raised and decided issue. In the same decision, Philomina Gervase and Ors. Vs Ravin Mehra and ors.
CS No. 53/19 Page no. 9 of 25 it was held that where the question of title was directly decided in a rent suit, it would operate as res judicata.
16. In Deva Ram's case (Supra), the defendants had not pleaded their tenancy rights nor any such issue was framed and there was no finding on that point and therefore, res judicata would not apply.
17. Effect of Suraj Lamp and Industries case would be discussed in later part of this judgment.
18. Defendant no.1 has relied upon following cases :
1. Jiya Rani @ Jiya Joshi Vs. Narinder Kumar Dhingra & Ors., 2018(254) DLT 716.
2. M/s Jagdambey Builders Pvt. Ltd. Vs. J.S.Vohra, 2016 (228) DLT 49.
3. Rajender Jain Vs. Parveen Kumar 2012 (187) DLT 517.
4. Chitra Garg Vs. Surinder Kumar Bansal 2010 (2) ILR (Del) 448.
5. Devi Bai Vs. Kailash Devi, 2011 (2) AD (Delhi) 258.
6. Om Prakash Jain Vs. Hans Raj 1994 (30) DRJ 601.
19. In Jiya Rani's case (Supra), it was held that in a given facts & circumstances, a decision by a Rent Controller Philomina Gervase and Ors. Vs Ravin Mehra and ors.
CS No. 53/19 Page no. 10 of 25 may not be res judicata in a regular suit in which similar issue arises. However, the decisions of Rent Tribunal having exclusive jurisdiction are final and are not liable to be questioned in collateral proceedings. It was also observed that after amendment of Sec. 11 of CPC even an issue decided by a Court of limited jurisdiction, which is competent to decide such issue, shall operate as res judicata.
20. In M/s Jagdambey's case (Supra), it was observed that mere agreement to sell does not create any right in the property and also it was observed that once a tenant is always a tenant and the character of possession cannot be altered without express consent of the landlord/owner, particularly when there is no delivery of possession of the premises in part performance of the agreement to sell.
21. In Rajender Jain's case (Supra), it was held that bar U/s 43 of Delhi Rent Control Act shall apply to a suit for declaration and permanent injunction filed to declare the eviction order null and void.
22. In Chitra Garg's case (Supra), the scope of bar U/s 50 of DRC Act was discussed in context of eviction petition U/s 14(1)(b) on the ground of subletting.
23. In Devi Bai's case (Supra), it was held that once Philomina Gervase and Ors. Vs Ravin Mehra and ors.
CS No. 53/19 Page no. 11 of 25 there is a finding as to existence of relationship of landlord and tenant, bar U/s 50 would operate against the civil Court to entertain the suit challenging the relation.
24. In Om Prakash Jain's case (Supra), it was held that a civil suit challenging the execution of the eviction decree was not maintainable.
25. Court has considered arguments advanced by learned counsels for parties and has carefully gone through the judgments relied upon by them.
26. For the purpose of convenience court is of the opinion that it would be proper to first discuss the maintainability of the effective relief claimed by plaintiff in his favour.
27. In relief '3' of the prayer clause, plaintiff has prayed for a decree of declaration that she is the real/actual and lawful owner of the suit property by way of Will, receipts, agreement to sell, GPA/SPA. Alternatively plaintiff has prayed for a decree for refund of entire money/cost/expenses with interest @ 24% per annum compounded yearly.
28. In the opinion of this court, this relief claimed by plaintiffs cannot be granted in their favour. Even if the averments in plaint are considered at their face value, the Philomina Gervase and Ors. Vs Ravin Mehra and ors.
CS No. 53/19 Page no. 12 of 25 terms and conditions of the agreement to sell were never completed by late Sh. P.N. Mehra. The agreement to sell was allegedly executed on 24.02.1999. Plaintiffs have themselves stated that Sh. P.N. Mehra was supposed to transfer the property in the name of plaintiff no.1. But he did not do so. Hence, the title of property in favour of plaintiff never matured as Sh. P.N. Mehra did not execute any sale deed in favour of either of plaintiff nor defendant no.2 executed any conveyance deed in their favour. Though the plaintiff has stated in the plaint that plaintiff no.1 had paid entire consideration amount to Sh. P.N. Mehra but if the documents filed along with plaint are considered the pleadings in plaint are found contrary to said documents. Perusal of the order dated 01.05.2018 passed by learned Rent Controller and the order dated dated 08.01.2019 passed by Hon'ble High Court of Delhi in revision petition reflects that it was urged by the plaintiffs in the proceedings under Delhi Rent Control Act that they had purchased the suit property from the father of defendant no.1 for an amount of Rs.4.00 lakhs but they were having only Rs.2.35/ lakhs at the relevant time, so they paid the same and got executed a set of GPA, affidavit, receipts etc. and promised to pay Sh. P.N. Mehra the balance amount, but could not pay Philomina Gervase and Ors. Vs Ravin Mehra and ors.
CS No. 53/19 Page no. 13 of 25 the same. It was further urged that they had also paid Rs.30,000/ to the defendant no.1 after death of his father and further promised to pay full and final consideration amount only on execution of final sale deed of the property. Orders passed by learned Rent Controller in petition u/s 14(1) (e) DRC Act and by Hon'ble High Court in revision petition no. 319/18 further reflect that plaintiffs admitted that suit property was given to them initially on rent by father of defendant no.1. Hon'ble High Court had categorically observed that admittedly the entire sale consideration as agreed in the alleged agreement to sell was not paid by the plaintiffs, hence the sale transaction, if any, was never complete. It was further observed that even on the date of passing of order by Hon'ble High Court i.e. on 08.01.2019, plaintiffs were allegedly to pay balance amount of Rs.1.05 lakhs towards alleged sale consideration which with interest may be a huge sum.
29. In the facts and circumstances, the proposed sale of the property intended through agreement to sell, GPA, affidavit etc. was never complete and materialized. The plaintiffs did not file any suit for specific performance of the agreement to sell nor had paid the alleged balance consideration amount of Rs.1.05 lakhs. There are no pleadings Philomina Gervase and Ors. Vs Ravin Mehra and ors.
CS No. 53/19 Page no. 14 of 25 in the plaint that after passing of the order dated 08.01.2019 by Hon'ble High Court, plaintiffs had paid balance sale consideration of Rs.1.05 lakhs to defendant no.1. The stand taken by plaintiffs in the present suit that entire sale consideration was already paid is an after thought and contrary to their admissions made before the learned Rent Controller and Hon'ble High Court of Delhi. In the receipts relied upon by plaintiff only a sum of Rs.2,70,000/ appears to have been paid out of Rs.4.00 lakhs. It is mentioned that the remaining amount of Rs.1,30,000/ shall be paid at the time of execution of sale deed. Contrary to this, in the agreement to sell it is mentioned that entire payment of Rs.4.00 lakhs has been received by Sh. P.N. Mehra. In view of the subsequent admissions of the plaintiffs before the Hon'ble High Court that balance amount of at least Rs.1.05 lakhs remained to be paid, the court should not presume that the entire sale consideration as per agreement to sell stood paid by plaintiffs.
30. Even if for the sake of arguments it is presumed that plaintiffs had paid the sale consideration as mentioned in the agreement to sell, same do not entitle them to seek a decree for declaration of title of ownership of property in their favour, in disregard to law.
Philomina Gervase and Ors. Vs Ravin Mehra and ors.
CS No. 53/19 Page no. 15 of 25
31. It is already mentioned in the plaint that Sh. P.N. Mehra was supposed to get properties freehold in his own name and thereafter he was supposed to transfer the property in the name of plaintiff no.1. Sh. P.N. Mehra did not do any such act and therefore at no point of time an occasion arose to transfer the property in the name of plaintiff no.1. Plaintiffs did not get the property transferred from Sh. P.N. Mehra after getting it freehold in his own name. Rather defendant no.1 son of deceased P.N. Mehra had got the conveyance deed issued from DDA in his favour in the year 2012 itself. Plaintiffs seeks declaration of ownership in their favour without any conveyance deed and without completing the formalities prescribed under law for transfer of property from the principle owner DDA. Plaintiff cannot use the court as a tool to bypass the requirements of law and procedure and to not to complete the formalities required for getting a conveyance deed and/or for avoiding payment of requisite fees in respect thereof.
32. None of the judgment relied upon by counsel for plaintiff is to the effect that a declaration of title can be granted in favour of plaintiff without the title documents executed in their favour.
33. Learned counsel for plaintiff has relied upon the Philomina Gervase and Ors. Vs Ravin Mehra and ors.
CS No. 53/19 Page no. 16 of 25 judgment of Hon'ble Supreme court in Suraj Lamp Industries (supra) and argued that the ratio laid down in the case of Suraj Lamp Industries (supra) has been given effect to with prospective effect. He argues that the judgment was pronounced on 11.10.2011 whereas the documents i.e. GPA, Will, Agreement to Sell etc. in favour of plaintiff were executed on 24.02.1999. He therefore submits that title of property conferred upon plaintiffs through these documents was not disturbed by the judgment in Suraj Lamps and Industries case (supra).
34. Court do not find substance in the submissions of learned counsel for plaintiff. In the Suraj Lamp Industries case (supra), Hon'ble Supreme court had categorically held that Agreement to Sell, GPA, Will etc. do not convey title, nor amount to transfer of immovable property, nor they can be recognized as transferring title of immovable property, and the courts would not treat such transactions as complete or concluded transfers. It was held that such documents neither convey title nor create any interest in immovable property and they can be recognized only for the limited extent of section 53A of the Transfer of Property Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Philomina Gervase and Ors. Vs Ravin Mehra and ors.
CS No. 53/19 Page no. 17 of 25 revenue record. The Hon'ble Supreme Court clarified that these observations will apply not only to deeds of conveyance in regard to free hold property but also to transfer of lease hold property. Hon'ble Supreme court had further held that nothing prevents affected parties from getting registered deeds of conveyance to complete their title.
35. In the case in hand plaintiff did not make any effort for seeking specific performance of the agreement to sell nor filed any case for getting mutation of property in his name. Through present suit, plaintiffs, by bypassing the entire procedure, intend to get the declaration of title in their favour. In the opinion of this court, this cannot be permitted under law. Hence, the relief no.3 in the prayer clause for declaring that plaintiff is real/actual and lawful owner of suit property is not maintainable.
36. In addition to declaration of ownership, plaintiff, in the alternative has claimed a decree for refund of entire money/cost/expenses with interest @ 24% per annum yearly compounded.
37. It is rightly submitted by learned counsel for defendant that as per plaint the agreement to sell was entered into on 24.02.1999. The payment of Rs.2,35,000/ and Philomina Gervase and Ors. Vs Ravin Mehra and ors.
CS No. 53/19 Page no. 18 of 25 Rs.35,000/ was also made to late Sh. P.N. Mehra on 24.12.2019. Sh. P.N. Mehra expired on 08.02.2008. He allegedly gave authority to plaintiff in the year 2005. Even DDA allegedly issued letter to plaintiff in the year 2010. After death of Sh. P.N. Mehra the property was got mutated in favour of defendant no.1 and conveyance deed was issued in his favour by DDA on 16.01.2012. This suit with the alternate prayer for recovery of amount paid to late Sh. P.N. Mehra and/or to DDA, filed on 16.01.2019 is therefore highly barred by limitation.
38. Now coming to relief no. 4 in the prayer clause of plaint.
39. In this relief plaintiff has prayed that eviction order passed by learned SCJ cum RC, District NorthWest, Rohini, Delhi in Rent Case no. 50/2017 dated 01.05.2018 be declared null and void.
40. Again this relief is not maintainable.
41. There is no dispute that under section 9 of The Code of Civil Procedure 1908, civil courts have wide jurisdiction to try all suits of civil nature. Exception to this jurisdiction has been carved out in section 9 itself by providing that the courts would not have jurisdiction to try the cases the cognizance of Philomina Gervase and Ors. Vs Ravin Mehra and ors.
CS No. 53/19 Page no. 19 of 25 which is either expressly or impliedly barred.
42. If any separate court/authority is provided with complete remedy/procedure for a specific jurisdiction, under a separate statute the jurisdiction of civil court may be impliedly barred. The jurisdiction of civil court may be expressly barred by any provision under a separate statute or Act.
43. The Delhi Rent Control Act 1958, is a complete code in relation to the cases/disputes, to which that act applies. It is settled law that a court or tribunal may decide the issues regarding its own jurisdiction.
44. Section 43 of Delhi Rent Control Act provides as under:
43. Finality of order - Save as otherwise expressly provided in this Act, every order made by the Controller or an order passed on appeal under this Act shall be final and shall not be called in question in any original suit, application or execution proceeding.
45. A bare reading of this section makes it clear that the orders made by the Controller or an order passed on appeal under the said Act, cannot be called in question in any original suit or application.
46. Jurisdiction of civil court to declare the eviction Philomina Gervase and Ors. Vs Ravin Mehra and ors.
CS No. 53/19 Page no. 20 of 25 order passed by the learned Rent Controller under section 14 (1) (e), as null and void is expressly barred under Delhi Rent Control Act 1958. Learned counsel for defendant has relied upon Jiya Rani @ Jiya Joshi Vs. Narinder Kumar Dhingra & Ors., 2018 (254) DLT 716, in which Hon'ble High court of Delhi held that order of the Rent Controller/Tribunal passed under the Act, are not liable to be quashed or set aside in collateral proceedings like a separate suit. Similarly, in Rajinder Jain Vs Praveen Kumar 2012 (187) DLT 517 Hon'ble High Court of Delhi held as follows : "26. In view of the above said facts and circumstances of the case, it is clear that the eviction order passed by the Additional Rent Controller and the other orders passed by the Appellate courts have attained finality and therefore, the present suit filed by the plaintiff is barred by Section 43 of the Delhi Rent Control Act in view of the settled law as referred to above as the plaintiff has no cause of action to file the present suit."
47. Section 25B of DRC Act, provides special procedure for the disposal of application for eviction on the ground of bonafide requirement including the ground under section 14 (1)
(e). Under sub section 8 of section 25B of DRC Act, Hon'ble Philomina Gervase and Ors. Vs Ravin Mehra and ors.
CS No. 53/19 Page no. 21 of 25 High Court may call for the records of the case for the purpose of satisfying itself that the order passed by Controller under section 14 (1) (e) is in accordance with law.
48. In the case in hand the plaintiff has filed a revision petition under section 25B (8) of DRC Act. Hon'ble High Court of Delhi had upheld the order of learned Rent Controller in RC.REV.319/2008. The learned Rent Controller and Hon'bleble High Court were competent to decide jurisdiction under DRC Act. The questions regarding lack of jurisdiction because of nonexistence of landlordtenant relationship were raised by plaintiff. Same were repelled by learned Rent Controller and Hon'ble High Court and eviction order was passed.
49. Hence, in the opinion of this court jurisdiction of this court to setaside or quash the judgment of learned Rent Controller is expressly barred.
50. Court is not in agreement with the submissions of learned counsel for plaintiff that section 50(4) of DRC Act, would in the facts and circumstances of the case, come to the rescue of plaintiff and this court can entertain the present suit because same relates to the decision of question of title between the plaintiff and defendant no.1. While discussing relief no. 3, prayed in the plaint the court has already held that Philomina Gervase and Ors. Vs Ravin Mehra and ors.
CS No. 53/19 Page no. 22 of 25 in the facts and circumstances of case, plaintiff cannot be declared as lawful owner of the suit property. Once plaintiffs are held to have never perfected their title, learned Rent Controller has decided that the parties had a relationship of landlord and tenant, and the decision of learned Rent Controller was upheld by Hon'ble High Court, no question of title survives between the parties. Moreover the court has already discussed that the plaintiff never perfected his title over the suit property and therefore the relief no.3 is not maintainable in favour of plaintiffs.
51. Hence, in the opinion of this court even relief no.4, as claimed in the suit is not maintainable.
52. In relief no. 2 of the prayer clause, plaintiff has sought declaration that legal heirs of late Sh. P.N. Mehra are left with no right, title or interest in the suit property.
53. Once, the court had held that the title of property never perfected in favour of plaintiff and that the documents in the form of agreement to sell, GPA, Will etc. do not amount to transfer of ownership in favour of plaintiffs, the property has to devolve according to the law of intestate or testamentary succession in favour of legal heirs of late Sh. P.N. Mehra or in favour of the beneficiary as per law. This relief is therefore also Philomina Gervase and Ors. Vs Ravin Mehra and ors.
CS No. 53/19 Page no. 23 of 25 not maintainable.
54. In relief no. 1 of prayer clause plaintiff has prayed for declaration that the mutation/substitution of lease and the conveyance deed obtained by defendant no.1 from defendant no.2 be declared illegal and void.
55. No effective benefit can be passed to the plaintiff when he has no surviving interest in suit property. Plaintiff has no locus standi to seek this relief. Moreover, learned Rent Controller and the Hon'ble High Court had already acted on the conveyance deed dated 16.01.2012 excuted by DDA and had held that their existed the relationship of landlord and tenant between the parties. Hence, even this relief claimed by plaintiff is not maintainable in the present suit.
56. It is therefore held that suit of plaintiff is not maintainable in its present form and further the part of relief claimed by plaintiff is also barred by limitation.
57. Suit of plaintiff is accordingly dismissed.
58. Decree sheet be prepared accordingly.
59. User charges of the suit premises are being deposited by the plaintiffs in compliance of order dated 02.09.2019 of Hon'ble High Court in FAO 293/2019 and CM No. 33312/19. The amount lying so deposited by the plaintiffs be Philomina Gervase and Ors. Vs Ravin Mehra and ors.
CS No. 53/19 Page no. 24 of 25 released to defendant no.1 after expiry of the period of appeal or subject to any further or other directions by any superior court.
59. File be consigned to record room.
Digitally signedAnnounced in the open court by AJAY
on the 17th day of December, 2019 AJAY PANDEY
PANDEY Date:
2019.12.17
14:41:52 +0530
(Ajay Pandey)
Additional District Judge02 (NW)
Rohini Court/Delhi
Philomina Gervase and Ors. Vs Ravin Mehra and ors.
CS No. 53/19 Page no. 25 of 25