Delhi District Court
Abdul Ghaffar vs Mst. Mussarrat Jahan on 23 December, 2023
IN THE COURT OF MS. UPASANA SATIJA
ACMM (WEST)
TIS HAZARI COURTS, DELHI
(THE THEN JSCC/ASCJ/GJ (CENTRAL) TIS HAZARI
COURTS, DELHI)
____________________________________________________
CS SCJ 1554/16
CNR No.DLCT03-000039-1992
1. Sh. Abdul Gaffar,
2. Sh. Abdullah (deceased)
Through LRs.
i) Zubaida Begum, (Widow)
ii) Abdul Rehman (Son)
iii) Shagufta Begum (Daughter)
iv) Mohd. Imran (Son)
v) Mohd. Mohsin (Son)
vi) Mohd. Furqan (Son)
vii) Mohd. Irfan (Son)
3. Mst. Zenab,
Widow of Abdul Hai (now deceased)
Through LR.
i) Ms. Abidah
4. Mst. Nafasat (now deceased)
i) Mst. Salma (Daughter)
ii) Mst. Khushnuma (Daughter)
iii) Mst. Saima (Daughter)
iv) Shri Mudassar (Son)
v) Shri Wasil (Son)
5. Shri Abdul Rahim,
S/o Late Shri Addul Hai
All residents of 1784, Bazar Turkman Gate,
Delhi-110006. .....Plaintiffs
_____________________________________________________________________________
CS No. 1554/16 Abdul Ghaffar Vs. Mst. Mussarrat Jahan Page no. 1 of 14
Versus
1. Mst. Mussarrat Jahan, (deceased)
2. Ms. Uzma,
D/o Azmatullah,
3. Ms. Sheba,
D/o Azmatullah
All residents of:
2320, Gali Chhatta Mamgaran,
Bazar Turkman Gate,
Delhi-110006.
4. Nemat Ullah,
S/o Late Salamat Ullah
R/o 2318, Gali Chhatta Mamgaran,
Mohalla Qabristan, Chitli Qabar,
Delhi-110006. .....Defendants
Date of Institution : 24.12.1991
Date of Reserving the Judgment : 02.12.2023
Date of Decision : 23.12.2023
Decision : Suit dismissed
Vide Transfer Order No. 49/DHC/Gaz./G-7/VI.E2(a)/2023 dated
14.12.2023 at Serial No. 28, the undersigned was transferred from
JSCC-ASCJ-GJ, Central THC to ACMM, West, THC Delhi. Since
the present case was listed for pronouncement of judgment by the
undersigned as JSCC-ASCJ-GJ, Central THC, in view of para no.
2 of the aforesaid transfer order, the Judgment is now being
pronounced in the present Court.
Suit for Possession and Damages
JUDGMENT
1. Present suit for possession and damages was filed by Sh. Abdul Ghaffar, Sh. Abdullah, Smt. Zeneb, Sh. Abdul Rahim, Nafasat, Abidah and Firdous (hereinafter referred to as 'plaintiff no.
_____________________________________________________________________________ CS No. 1554/16 Abdul Ghaffar Vs. Mst. Mussarrat Jahan Page no. 2 of 14 1', 'plaintiff no. 2', 'plaintiff no. 3', 'plaintiff no. 4', 'plaintiff no. 5', 'plaintiff no. 6', and 'plaintiff no. 7', respectively and collectively as 'plaintiffs') against Azmatullah Khan (since deceased) in respect of portion of property No. IX/1162 (Old) 1937- 38 (New) Chitli Qabar, Turkman Gate, Delhi which has been shown delineated red in the site plan (hereinafter referred to as 'suit property'). After demise of Azmatullah Khan, his legal heirs namely Mst. Mussarrat Jahan, (hereinafter referred to as 'defendant no. 1'), Baby Uzma (hereinafter referred to as 'defendant no. 2') and Baby Sheba (hereinafter referred to as 'defendant no. 3') were impleaded. Nemat Ullah (hereinafter referred to as 'defendant no. 4) was impleaded upon his application under Order I Rule 10 CPC.
PLEADINGS Brief Facts pleaded in the plaint 2.1. The property No. IX/1162 (Old) 1937-38 (New) Chitli Qabar, Turkman Gate, Delhi double storey was composite property i.e. portion of it was owned by Evacuee Muslim and portion was owned by non-evacuee Muslim. It was held and managed by Custodian of Evacuee property/competent officer under the Evacuee Interest (Separation) Act 1951. Shri Abdul Hai purchased the property in auction from the Custodian/Evacuee property/ Competent officer and became the owner of the property. The Sale Certificate was issued by the competent officer on 19.07.1978. Shri Abdul Hai died on 28.06.1985. The plaintiffs are his legal heirs.
2.2. Non-evacuee co-owner of the property viz. Smt. Feroza Begum, her husband and sons had gone in appeal and writ petition to the High court and in S.L.P. to the Supreme Court. The S.L.P. was decided by the Supreme Court on 18.01.1991.
_____________________________________________________________________________ CS No. 1554/16 Abdul Ghaffar Vs. Mst. Mussarrat Jahan Page no. 3 of 14 2.3. Defendant No. 1 to 3 are unauthorised occupants of portion of the said building which has been shown delineated red in the site plan. The defendant No. 1 to 3 are tress-passer and defendants No.1 to 3 in collusion with the defendant No. 4 has put the defendant No. 4 in the possession of the suit property who is also an unauthorised occupant and he is in illegal possession of the suit property. Defendant No.4 has no right, title or interest in the suit property.
2.4. Defendants are liable to pay damages at the rate of Rs.300/- per as month (Three hundred ) as they are running a shop in the portion unauthorisedly occupied by the them. The plaintiffs claim damages for the last three years and a sum of Rs. 10,800/- is due from the defendants to the plaintiffs as damages. Hence, the plaintiffs have filed the present suit against the defendants praying for following reliefs:
(i) Decree for possession of the portion shown delineated red in the site plan of property No. IX/1162 (Old) 1937-38 (New) Chitli Qabar, Turkman Gate, Delhi.
(ii) Decree for damages and also award future damages at the rate of Rs. 300/- per month against the defendant No. 1 to 4 in favour of the plaintiffs.
Brief Facts pleaded in the Written Statement filed by Defendant no. 4 3.1. Sh. Salamatulla was a tenant under the Custodian and was having electricity connection K No. 8154 for commercial light which is now N. 0081542. The father of the answering defendant died on 1986 and thereafter this defendant continues to be in actual _____________________________________________________________________________ CS No. 1554/16 Abdul Ghaffar Vs. Mst. Mussarrat Jahan Page no. 4 of 14 physical possession of the premises. It is denied that except the answering defendant, any other defendant has ever been in possession of the shop in question which bears No. 1938, Chitli Qabar Turkman Gate, Delhi. The allegations are patently false. The answering defendant is a tenant and the present suit is not maintainable being also barred under Section 50 of the DRC Act and Section 19 of the Slum Areas Act. Rent at Rs. 3.94 was being paid to the Regional Settlement Commissioner and the same continues to be the rent payable by this defendant to the owner/landlord who establishes his right.
ISSUES
4. On the basis of pleadings, the following issues were framed:
1. Whether defendant no. 4 was tenant in the suit property? OPD
2. Whether defendant no. 4 was in possession of suit property before purchase of property by plaintiff? OPD
3. Whether suit is barred u/s 50 of DRC Act and Section 19 of Slum Area (Clean) Act? OPD
4. Whether plaintiff is entitle to relief of possession as claimed? OPP
5. Whether plaintiff is entitle to damages as claimed? OPP.
6. Relief.
5. Vide order dated 26.07.2000, defendant no 1, 2 and 3 were proceeded ex-parte.
EVIDENCE
6. In support of their case, the plaintiffs examined plaintiff no. 2 Sh. Abdulla as PW-1. Defendant no. 4 examined himself as _____________________________________________________________________________ CS No. 1554/16 Abdul Ghaffar Vs. Mst. Mussarrat Jahan Page no. 5 of 14 DW1 and Sh. Uday Singh, employee of the Custodian Department as DW2.
7. Vide judgment dated 10.01.2014, Ld. Predecessor dismissed the present suit. Ld. Predecessor gave the following finding:
"...20. The main allegation of the plaintiffs is that the defendant no.4 is unauthorized occupant in the suit property.
21. The contention raised by the defendant no.4 is that his father Salamatulla was a tenant in the suit property who died in 1986 and after his death, he is in continuous actual physical possession of the said shops for commercial activities.
22. To prove his tenancy, the defendant no.4 has examined DW-2 Udai Singh, ex-employee of Custodian Department, Ministry of Rehabilitation who proved the receipt Ex.DW1/4 collectively. A perusal of rent receipts (Ex.DW1/4) issued by the office of the Regional Settlement Commissioner, Delhi reveals that the same pertain to the rent for the period from November, 1976 to January, 1977 and for June, 1977. The fact in question of tenancy is very material and the DW2 was not cross examined on behalf of the plaintiffs. So, the rent receipts (Ex.DW1/4 colly) remained unchallenged and uncontroverted. During the cross- examination of PW-1 Abdullah ( the plaintiff no.2) a question was put to which PW-1 answered that he cannot admit or deny if Salamat Ulah was a tenant in the suit shop under the custodian and was issued rent receipts by the custodian / Ministry. PW-1 has not specifically denied the question of _____________________________________________________________________________ CS No. 1554/16 Abdul Ghaffar Vs. Mst. Mussarrat Jahan Page no. 6 of 14 tenancy of Salamat Ullah so it is deemed to be admitted by PW-1 that Salamat Ullah was a tenant in the suit shop. From the receipts (Ex.DW1/4 colly), it is proved that Salamat Ullah was a tenant in the suit shop. After the purchase of the suit shop by Abdul Hai, Salamat Ullah became tenant under him. Admittedly, the defendant no.4 is legal representative of deceased Salamat Ullah so the tenancy devolved upon the defendant no.4 after death of Salamat Ullah.
23. For the reasons above-stated, these issues are decided in favour of the defendants and against the plaintiffs. Relief
24. In view of my findings on issues no.1,2,3 & 4 and 5, the suit of the plaintiff is dismissed with costs. Decree-sheet be prepared accordingly."
8. Against the said judgment, plaintiffs preferred an appeal and the Ld. Appellate Court vide judgment dated 21.04.2015 remanded the matter to the trial court with following directions and findings:
"5. ...As far as the finding on the issue no.1 is concerned, that clinch the issue in suit against the plaintiff and consequently all other issues were decided against the plaintiff.
6. Ld. Counsel for appellant plaintiff has argued the very basis of this finding are receipts issued by Regional Settlement Commissioner placed on record regarding which the Ld. Trial court has held that these are rent receipt. I have perused the original receipts on the record of trial court, these receipts are on account of rent/ licence fee/ licence money in respect of property in suit. Nowhere these _____________________________________________________________________________ CS No. 1554/16 Abdul Ghaffar Vs. Mst. Mussarrat Jahan Page no. 7 of 14 receipts can be considered as rent receipts in the absence of any corroborative proof because there is no tick mark on the word of 'Rent'.
7. It is submitted on behalf of respondent by the Ld. Counsel for respondent that he examined the witness from the custodian to prove receipt and even if these receipts are considered to be having been proved though there was objection raised as to mode of proof at the time of the witness being examined. Even this document is considered to be duly proved on record, this document nowhere says that it is rent receipt and not a licence fees or money paid towards licence. It is a common receipt which is being use by the government for three different payments i.e. it could have been a rent receipt, it could have been a payment for receipt for payment for licence of money towards payment of licence money. No other question has been put except proving this document which per by itself is not saying that it is rent receipt. In the absence of any corroborative statement on record except that is the person himself, naturally he will support his story only. Onus of proving this issue was on the defendant. Perhaps it escaped the notice of the ld. Trial court that the receipt was for three purposes and none of them was ticked and no other document has been proved on record to show that they were tenant of Regional Settlement Commissioner which was the owner of property in suit since it auctioned the property and the same was purchased by the plaintiff in auction and subsequently sale certificate was issued in favour of the plaintiff since the onus was on the defendant to prove this issue and trial court without calling for further record treated it as a rent receipt though it was not a rent receipt in the _____________________________________________________________________________ CS No. 1554/16 Abdul Ghaffar Vs. Mst. Mussarrat Jahan Page no. 8 of 14 absence of any corroborative evidence.
Hence the judgment of trial court is set aside and matter is remanded back to the trial court with the directions to give the specific finding as to the issue whether the defendant was tenant in respect of property in suit after permitting the defendant to lead additional evidence on this limited point only that predecessor in interest defendant no.4 were tenant of Regional Settlement Commissioner and they succeeded to that tenancy and give a finding to that effect after permitting the defendant to lead additional evidence on the point that the Predecessor in interest were the tenant of Regional Settlement Commissioner and after demise they have also been accepted defendant no.4 as tenant being the legal heir with the right to the plaintiff to rebut the evidence brought on record on this point to the limited extent only.
Judgement and decree of trial court is set aside and matter is remanded back to the ld. Trial court permitting the parties to lead evidence only to the limited extent whether the defendant no.1 is tenant in respect of property is suit and return the finding after the parties led their evidence on the point since the issue has been raised by the defendant no.4 who is claiming to be the tenant in property in suit. The additional evidence at first instance is to be led by the defendant no.4 qua his tenancy and with the right of rebuttal of that evidence only and the ld. Trial court after the evidence is recorded return a finding to the limited extent only of the issue in question and to extent it effects other issues."
9. Consequently evidence was led by Defendant no. 4 who initially examined five witnesses namely himself, Abdul _____________________________________________________________________________ CS No. 1554/16 Abdul Ghaffar Vs. Mst. Mussarrat Jahan Page no. 9 of 14 Rehman (his neighbor), Nagendra Sah (UDC, Evacuee Property Cell, Land & Building Department, Vikas Bhawan, New Delhi), Mohd. Shafiq (his neighbor) and Mohd. Razi (his neighbor) however, upon objection being raised by the Ld. Counsel for plaintiffs that evidence filed is beyond the limited issue for which the matter was remanded back by the Ld. Appellate Court, Defendant no. 4 led fresh evidence wherein he examined himself and Mohd. Shafiq.
10. Plaintiffs did not lead any rebuttal evidence.
11. The parties did not advance any arguments despite several opportunities. Written submissions were filed on behalf of defendant no. 4. Entire record is perused.
Appraisal of Evidence and Findings
12. In terms of order/judgment dated 21.04.2015 of Ld. Appellate Court, the issue to be decided is "whether predecessor-in- interest of defendant no. 4 were tenant of Regional Settlement Commissioner and after demise they have also accepted defendant no. 4 as tenant being legal heir?"
13. The onus is on the defendant no. 4 to establish that his predecessor in interest i.e. his father was the tenant in the suit property.
14. It is the case of the plaintiffs that Azmatullah Khan was unauthorized occupant in the suit property & after demise of Azmatulla khan, his legal heirs i.e. Defendant no. 1 to 3 in collusion with Defendant no. 4 gave possession of suit property to Defendant no. 4. During his evidence, PW1 testified that at the time of sale, _____________________________________________________________________________ CS No. 1554/16 Abdul Ghaffar Vs. Mst. Mussarrat Jahan Page no. 10 of 14 Azmatullah Khan was unauthorized occupant of the suit property and after his demise, Defendant no. 4 occupied the suit property forcibly. He further testified that Custodian of Evacuee Property through Competent Officer has held husband of Defendant no. 1 as unauthorised occupant.
15. As opposed to the contentions of the Plaintiffs that Defendant no. 4 is an unauthorised occupant in the suit property, defendant no. 4 stated on oath that his father was tenant under the custodian and after the demise of his father, tenancy has devolved upon him.
16. In order to show that his father was in occupation of suit property, defendant no. 4 produced electricity Bills in respect of suit property in the name of his father. During his cross- examination, plaintiff no.2/ PWl stated that " The shop in question has electricity connection but I cannot say in whose name." No material was brought on record by Plaintiffs to suggest that electricity connection in the suit property was not in the name of father of defendant no. 4. Further, defendant no. 4 examined Mohd. Shafiq who deposed to be close neighbour of defendant no. 4 and testified that Defendant no. 4's father Salamatullah carried out kiryana business in the suit shop and thereafter his son is carrying on business of Dhaba in said shop.
17. No evidence is produced by plaintiffs which suggests that Azmatullah Khan or Defendants no.1 to 3 being legal heirs of Azmatullah Khan were ever in possession of suit property and have in collusion with Defendant no. 4, given the possession of suit property to defendant no. 4 or that defendant no. 4 had taken the possession of the property forcibly. Although PW1 deposed that _____________________________________________________________________________ CS No. 1554/16 Abdul Ghaffar Vs. Mst. Mussarrat Jahan Page no. 11 of 14 husband of defendant no. 1 was declared an unauthorised occupant by Custodian of Evacuee Property through Competent Officer; however, no document in support of the same was placed on record.
18. In view of the testimony of the witnesses and documents produced, it is concluded that defendant no. 4 has established that his father was in occupation of the suit property as opposed to contention of the plaintiffs that Azmatullah Khan was in occupation of suit property.
19. Further in support of his contention that his father was a tenant in the suit property, Defendant no. 4 produced receipts issued by Office of Regional Settlement Commissioner. The receipts produced earlier were Ex DW1/4 and receipts produced after the case was remanded were Ex. D4W1/3.
20. Ld. Appellate count was of the opinion that the receipts Ex. DW1/4 are on account of rent/ licence fee/ licence money in respect of property in suit. Nowhere these receipts can be considered as rent receipts in the absence of any corroborative proof because there is no tick mark on the word of 'Rent'. It is a common receipt which is being use by the government for three different payments i.e. it could have been a rent receipt, it could have been a payment for receipt for payment for licence of money towards payment of licence money.
Defendant no. 4, after remand of the case, produced earlier receipts stated to have been issued by Office of Regional Settlement Commissioner wherein it is mentioned that "The receipt is issued subject to realisation of arrears of rent due upto the end of last month". Further, in one of the receipts the word ' license' is _____________________________________________________________________________ CS No. 1554/16 Abdul Ghaffar Vs. Mst. Mussarrat Jahan Page no. 12 of 14 struck off. Further, lease and license are for fixed period whereas rent agreement is on monthly basis. The receipts produced also show that they were issued towards monthly payment. In his cross- examination, PW1 stated that he cannot admit or deny if Salamatullah was a tenant in the suit shop and was issued rent receipts by the custodian/ministry
21. The burden to prove a fact in civil cases is not as strict as in criminal cases. The onus is discharged on the basis of preponderance of probabilities as against onus to lead such evidence so as to establish a fact beyond all reasonable doubts as required under criminal law. Defendant no. 4 has produced receipts issued by Office of Regional Settlement Commissioner which are carbon copies of the original. Hence, primary evidence is produced by Defendant no. 4. There is no reason to disbelieve the same. From the documents so produced, it is apparent that receipts were issued towards payment of rent by the father of defendant no. 4. Accordingly, on the basis of evidence produced, it is concluded that Defendant no. 4 has successfully established that his father Salamatulla was tenant in suit property under the custodian.
22. Since the rate of rent was less than Rs.3500/- and suit property lies in the area to which the provisions of DRC Act applies, the tenancy was a protected tenancy under DRC Act. Nothing has been brought on record to suggest that the tenancy was ever terminated in accordance with the provisions contained in DRC Act. Accordingly, after demise of Salamatullah, tenancy devolved upon his legal heirs and defendant no. 4, being son of Salamuullah is one of his legal heirs and hence, tenancy devolved upon him.
_____________________________________________________________________________ CS No. 1554/16 Abdul Ghaffar Vs. Mst. Mussarrat Jahan Page no. 13 of 14
23. Vide order dated 21.04.2015, Ld. Appellate court had remanded the matter with directions - "the ld. Trial court after the evidence is recorded return a finding to the limited extent only of the issue in question and to extent it effects other issues."
Since it is concluded that defendant no. 4 is tenant in suit property, there is no effect on finding on other issues.
CONCLUSION
24. On the basis of the above findings, the suit of plaintiffs is hereby dismissed with costs
25. Decree sheet be prepared.
26. File be consigned to Record Room as per rules.
Announced in open Court On this 23rd day of December, 2023 This Judgment contains 14 pages and each page is signed by me.
(UPASANA SATIJA) ACMM (WEST) TIS HAZARI COURTS/DELHI _____________________________________________________________________________ CS No. 1554/16 Abdul Ghaffar Vs. Mst. Mussarrat Jahan Page no. 14 of 14