Delhi District Court
All R/O 814 vs Zamalluddin @ Nawab on 27 January, 2023
IN THE COURT OF SH. RAJESH MALIK, ADDITIONAL
DISTRICT JUDGE -06: CENTRAL DISTRICT,
TIS HAZARI COURTS, DELHI
RCA DJ 181/2022
IN THE MATTER OF:-
MOHD. SIRAJUDDIN
(Since Deceased Through his LRs)
a) Razia Begum
Wd/o Mohd. Sirajuddin
b)Tajuddin
c) Mehrajuddin
d)Nawabuddin
e) Mohd. Danish (Minor)
f) Mohd. Shoaib (Minor)
(Both through their mother/natural guardian/
Next Friend Razia Begum)
g) Gulzar Begum
h) Shahnaz Begum
i) Mumtaz Begum (Minor)
(Through her mother/natural guardian/next friend
Razia Begum)
All R/o 814, Chhatta Sheikh Mangloo,
Jama Masjid, Delhi-110006
..........Appellant
VERSUS
1. ZAMALLUDDIN @ NAWAB
(Deceased Through his LR's)
RCA DJ 181/2022
Mohd. Sirajuddin vs Zamalluddin @ Nawab Page No. 1 of 6
a) Smt. Hamidha Jamal
Wd/o Zamalludin @ Nawab
b) Faizal Jamal
c) Shezan Jamal
Both s/o Late Zamalluddin @ Nawab
d) Heena Jamal
e) Tuba Jamal
Both D/o Late Zamalluddin @ Nawab
All R/o 381, Chitla Gate,
Chawri Bazar, Delhi-110006
f) Huma Jamal
W/o Sh. Abdul Rahman
D/o Late Jamaluddin
R/o 1054, Phatak Ram Kishan Dass,
Chitli Qabar, Delhi-110006
2. Smt. Naseem Khatoon
W/o Late Mohd. Yakub
3. Shamim Begum
4. Ruksana Sultana
5. Rehana Parveen
All D/o Late Mohd. Yakub
All R/o H.No. 970, Matia Mahal,
Jama Masjid, Delhi-110006
........Respondents
Other Details :
Date of Institution : 15.12.2022
Date of Reserving Judgment : 19.01.2023
Date of Judgment : 27.01.2023
Decision : Appeal Dismissed
RCA DJ 181/2022
Mohd. Sirajuddin vs Zamalluddin @ Nawab Page No. 2 of 6
REGULAR CIVIL APPEAL ARISING OUT OF THE IMPUGNED
JUDGMENT AND DECREE DATED 17.01.2022 PASSED BY THE
COURT OF MS. RISHIKA SRIVASTAVA, LD. CIVIL JUDGE, WEST
DISTRICT, TIS HAZARI COURTS, DELHI
JUDGMENT:-
1. This is the first appeal against the judgment and decree dated 17.01.2022 passed by the court of Ms. Rishika Srivastava, Ld. Civil Judge (West), Tis Hazari, Delhi, in Civil Suit No. CS/SCJ/609418/16 titled as Zamalluddin Ahmed @ Nawab vs. Mohd. Sirajuddin & Ors. The Ld. Trial Court decreed the suit of the plaintiff in respect of the following reliefs:-
A. Decree of possession in respect of Shop No. 764-C, forming part of Shop No. 764, Gali Chotty Imam, Jama Masjid, Delhi-110006 (as shown red in colour in the site plan Ex. PW-1/1).
B. Decree of permanent injunction against the legal representatives of the defendant no.1 thereby restraining them from parting with possession of Shop No. 764-C, forming part of Shop No. 764, Gali Chottey Imam, Jama Masjid, Delhi-110006 (as shown red in colour in the site plan Ex. PW-1/1) or from creating any third party interest in the Shop No. 764-C. COURT'S ANALYSIS: -
2. The plaintiff filed a suit for possession and permanent in- junction. The plaintiff claimed to be the joint tenant of the shop no. 764-C RCA DJ 181/2022 Mohd. Sirajuddin vs Zamalluddin @ Nawab Page No. 3 of 6 forming part of Shop No. 764, Gali Chottey Imam, Jama Masjid, Delhi. Admittedly, Late Zuhuraddin was inducted as the tenant in the suit property more than 60-70 years ago and he used to carry out his business from the said shop. However, the defendant no.1 stated that after the death of Late Zuhuraddin, the tenancy was attorned only to the defendant no.1 and since then, he has been in exclusive possession of the entire shop except for the time during which, the plaintiff was allowed to use the small portion of the shop as the licensee. The defendant no.1 relied upon the rent agreement i.e., Ex. PW-1/1 with the landlord and the rent receipts issued by the landlord i.e. Ex. DW-1/2 to Ex DW-1/8. However, neither the rent agreement nor the rent receipts were proved by calling the witnesses. Further, the Ex. PW- 1/6 (statement recorded by the police), the Ex. PW-1/3 (the written state- ment before the Competent Authority Slum), the Ex. PW-1/10 (judgment of Addl. Senior Civil Judge) categorically show that the plaintiff was the joint tenant in the suit property. Ld. Trial Court has rightly appreciated the fact that the written statement before the Competent Authority Slum shows cat- egorical admission on the part of the defendant regarding the joint tenancy. The plea of surrender of tenancy in favour of the joint tenant needs to be proved by the defendant. The written statement of the successor in interest of the landlord shows that they admitted about the joint tenancy of the plaintiff and the defendant.
3. At this stage, it is relevant here to refer to the Para-B of the ground of appeal of the appellant as under: -
"That the Ld. court below failed to appreciate that the respondent no.1 gave writing dated 06.12.1997 admitting the possession of the deceased appellant/Mohd. Sirajuddin qua the shop in question and further failed to consider that the rent deed dated 15.05.1998 was executed by the land- lords in favour of the deceased Mohd. Sirajuddin alone RCA DJ 181/2022 Mohd. Sirajuddin vs Zamalluddin @ Nawab Page No. 4 of 6 and has been making the payment of rent to the landlord. Even, otherwise also the Ld. court below failed to appreci- ate that the plaintiff filed the suit on the ground that after the death of Shri Zuhuraddin, the respondent no.1 became the joint tenant in the suit property as such in view of the said averments, both the parties are in joint possession and the suit for possession is not maintainable under the law."
4. This ground of appeal shows that that appellant has stated that the suit for possession was not maintainable in case of an ouster of the joint tenant. Regarding the maintainability of the suit seeking possession by the joint tenant, it is observed here that the joint tenants enjoy possession over every inch of the joint property with other joint tenants. If there is an apparent ouster from the possession, the only remedy is to file a suit for possession. It does not mean that if the suit for possession is decreed, the other joint owner is dispossessed from the property. The purpose to file the suit for possession is to enter the property to enjoy the joint tenancy. It does not mean expulsion of the other joint tenant. As proved before the Trial Court, the portion shown in the red colour i.e. Shop bearing No. 764-C is forming the part of Shop No. 764. It has been admitted by the plaintiff in his cross-examination that there is no partition wall in the suit property and it has three doors. Therefore, by the decree of possession, the plaintiff would be entitled to enter the portion shown in the red colour in the site plan as Ex. PW-1/D3 and the goods of the defendant lying therein shall be removed to give the possession of said portion. It does not mean that the defendant would be removed from the other portion of the suit property. Therefore, the suit for possession is maintainable by the joint tenant. Thus, there is no illegality or infirmity in the judgment of the Ld. Trial Court. Ac- cordingly, the same is affirmed. In view of forgoing analysis and observa- tions, the present appeal stands dismissed. No order as to costs. Decree sheet be prepared accordingly.
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5. Let the copy of judgment be sent to the Ld. Trial Court along with the Trial Court Record.
Announced in open Court Dated: 27th January 2023 (RAJESH MALIK) Addl. District Judge-06 (Central), Tis Hazari Courts, Delhi RCA DJ 181/2022 Mohd. Sirajuddin vs Zamalluddin @ Nawab Page No. 6 of 6