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Delhi District Court

Smt. Rumali Devi vs Smt. Rajpati on 16 August, 2014

     IN THE COURT OF SHRI VINOD GOEL, DISTRICT & 
      SESSIONS JUDGE: ADDITIONAL RENT CONTROL 
   TRIBUBAL: SHAHDARA DISTRICT: KKD COURTS: DELHI

MCA No. 28/2013
Unique Identification No. 02402C0405122013

Smt. Rumali Devi
W/o Late Sh. Veer Singh
R/o 16/8­1, Bapa Nagar,
Hardhyan Singh Road, Karol Bagh, 
New Delhi.
                                            ....Appellant/Objector/applicant  

                              Versus

1. Smt. Rajpati
W/o Sh. Babban Singh,
R/o 31­F, 2nd Floor, Pocket A­3,
Mayur Vihar, Phase­III,
Delhi­110096.
2. Sh. Harish Kumar
S/o Sh. Dilip Kumar 
R/o C­6/134­A, Lawrence Road,
New Delhi­110035.
                                                          ....Respondents

Appeal under Order XLI of Code of Civil Procedure, 1908 against the order dated 12.11.2013 passed by Ld. Rent Controller, Shahdara, KKD Courts, Delhi Smt.Rumali Devi vs. Smt. Rajpati & Anr.

MCA No. 28/13 Dated 16.08.2014 Page 1 of 4 Judgment :

1. Grieved by the order dated 12.11.2013 passed by Ld. Rent Controller, Shahdara, Delhi dismissing his objections in the execution petition no.40/04, the appellant/objector has invoked the appellate jurisdiction of this court under Section 38 of the Delhi Rent Control Act, 1958 (hereinafter referred as the "DRC Act"). The brief facts for disposal of this appeal are that an eviction order was passed in favour of Sh. Harish Kumar against Sh. Hardeep Dhami on 14.7.2004 in respect of the property no. 31­F, Pocket­A3, Second Floor, Kondli Gahroli, Mayur Vihar, Phase­III, Delhi u/s 14 (1) (a) of "DRC Act". Sh. Harish Kumar filed an execution petition against the JD Hardeep Dhami wherein one Smt. Rajpati Devi filed objections which are still pending disposal.

2. Meanwhile, the appellant/objector also filed an application under Order XXI Rule 35 read with Section 151 CPC in the execution petition.

She has claimed to be the real sister of Sh. Bhagwan Dass Nimesh who died on 11.3.2003. The wife of Sh. Bhagwan Dass Nimesh namely Smt. Neelam Nimesh pre­deceased him on 9.1.2001. They have died issueless. The appellant/objector claimed herself to be their legal heir. She inter alia pleaded that she is pursuing a succession case no.114/04 before the court of Ld. ACJ (Central), Tis Hazari Courts, Delhi. In the second week Smt.Rumali Devi vs. Smt. Rajpati & Anr.

Dated 16.08.2014 Page 2 of 4 of October, 2013, the judgment debtor personally been to the appellant/objector and informed her about the status of the present execution. On making enquiry through her counsel, the appellant/objector was surprised that the decree holder has claimed himself to be the owner of the premises in question. It is also alleged that during their lifetime Smt. Neelam Nimesh and Sh. Bhagwan Dass Nimesh have not adopted any son or daughter and no ceremony was ever conducted. The Judgment Debtor is a relative of DH and the ejectment decree dated 14.7.2004 has been obtained by false representation, fraud and suppressing material facts. The appellant/objector by his application prayed for a declaration that the decree dated 14.7.2004 in eviction petition no. 400/03 is null and void. Appellant/Objector does not claim to be in possession of the property in question.

3. I have heard Ld. counsel for the respondent. The appellant did not turn up to address arguments. She has also not filed synopsis as directed. I have perused the material available on record.

4. The decree holder Sh. Harish Kumar has claimed to be the adopted son of Smt. Neelam Nimesh and Sh. Bhagwan Dass Nimesh and has placed on record documents to this effect. If the decree holder was not validly adopted by Smt. Neelam Nimesh and Sh. Bhagwan Dass Smt.Rumali Devi vs. Smt. Rajpati & Anr.

Dated 16.08.2014 Page 3 of 4 Nimesh, the appellant/objector could have filed a separate suit for declaration for which a limitation of 3 years is provided under Article 57 of the Schedule of the Limitation Act, 1963 and if she claims to be the legal heir of deceased Sh. Bhagwan Dass Nimesh and Smt. Neelam Nimesh, she could have filed a separate suit for which limitation of 3 years is provided under Article 58 of the Schedule of Limitation Act, 1963. The appellant/objector has claimed to have filed a petition no. 114/04 for succession certificate in respect of movable properties of Smt. Neelam Nimesh and Sh. Bhagwan Dass Nimesh, and as such she must be aware of decree dated 14.7.2004. Moreover, the objections filed by the appellant/objector are not covered under Order XXI Rule 35 CPC. Further, the order passed by the Ld. Rent Controller under Order XXI Rule 35 CPC is not appealable under Order XLIII Rule 1 of the CPC. Therefore, the appeal is without any merit and as such, the appeal is hereby dismissed with no order as to cost. Trial court record be sent back along with an attested copy of instant judgment. Appeal file be consigned to record room.

Announced in open court                                    (Vinod Goel)
on 16th August, 2014                                 District & Sessions Judge
                                                Additional Rent Control Tribunal
                                                  Shahdara/KKD Courts, Delhi. 

Smt.Rumali Devi vs. Smt. Rajpati & Anr.
MCA No. 28/13
Dated 16.08.2014                                                            Page 4 of 4