Delhi District Court
Azra Begum vs Chaman on 20 May, 2023
In the Court of Dr. Rakesh Kumar : Additional District Judge-03
of Central District at Tis Hazari Courts, Delhi
RCA No. 23/2023
CNR No. DLCT01-003151-2023
In the matter of :-
Azra Begum
W/o Late Yameen
R/o 2063/XI, Ground Floor,
Kucha Chelan, Darya Ganj,
New Delhi-110002. .....Appellant
Versus
1. Chaman
S/o Mohd. Rafi
R/o 2063/XI, Ground floor,
Kucha Chelan, Darya Ganj,
New Delhi-110002
2. Delhi Urban Shelter Improvement Board,
Through its C.E.O
Punarwas Bhawn,
I.P. Estate, New Delhi ....Respondents
Date of institution : 28.02.2023
Reserved for Judgment : 16.05.2023
Date of decision : 20.05.2023
Appeal against Judgment and decree dated 30.11.2022 passed by
Mr. Kartik Taparia, Civil Judge-02, Central, Tis Hazari Courts, Delhi
JUDGMENT
1. This appeal under Section 96 of the Code of Civil Procedure, 1908 (in short 'the CPC') is directed against the impugned judgment and decree dated 30.11.2022 passed by the court of Mr. Kartik Taparia, Civil Judge-02, RCA No 23/2023 Page 1/12 Central District, Delhi in Civil Suit No. 98949 of 2016 whereby the Learned Civil Judge dismissed the suit.
2. Brief facts for the decision in the appeal are that the appellant, namely, Azra Begum (hereinafter referred to as 'the plaintiff') has instituted a suit against the respondents, namely, Chaman and Delhi Urban Shelter Improvement Board (hereinafter referred to as 'the defendants') for recovery of possession and recovery of damages. It is averred in the plaint that Karam Illahi was the father-in-law of the plaintiff who was a licensee in respect of property no.203/XI, Kucha Chelan, Darya Ganj, New Delhi-110002 (hereinafter referred to as 'the suit property') which is owned by Delhi Urban Shelter Improvement Board, New Delhi (defendant no.2.); that defendant no.1 is the nephew of Late Karam Illahi and on his request, considering his relations, Karam Illahi permitted him to live in one room forming part of the property bearing no.203/XI, Kucha Chelan, Darya Ganj, New Delhi-110002 (hereinafter referred to as 'the premises') purely on temporary basis as a licensee for a short period without any charges; that after death of Karam Illahi, his legal heirs Mohd. Shafi, Mohd. Yamin and Mohd Yaseen became the co-owners of the suit property; that after death of Mohd. Yameen (husband of the plaintiff), the plaintiff inherited the share of her husband in the suit premises and the portion in possession of the defendant no.1 came to the share of the plaintiff; that the defendant no.1 wanted to create third party interest in the premises without consent of the plaintiff against which the plaintiff filed a suit for permanent injunction which is pending before the Civil Judge; that the defendant no.1 is in illegal and unauthorized possession of the suit premises; that the plaintiff lastly requested the defendant no.1 on 16.09.2013 to vacate the premises and to hand over peaceful vacant RCA No 23/2023 Page 2/12 possession but the defendant no.1 has not paid any heed to the requests of the plaintiff, hence this suit.
3. The defendant no.1 contested the suit by filing written statement of his defence wherein he took preliminary objections to the effect that the plaintiff has no locus standi to file the present suit; that the suit is not maintainable as the plaintiff has suppressed relevant facts; that the suit is bad for non-joinder of the necessary parties; that the Hon'ble Court has no jurisdiction to try and entertain the suit under Section 18 of the Slum Area (Improvement and Clearance) Act, 1956. In reply on merits, it is contended by the defendant no.1 that the defendant no.1 is a lawful occupant in the premises; that a ekrarnama/agreement was duly executed between the parties and the plaintiff had knowledge of the same; that requisite charges on account of use and occupation of the premises is being charged from the defendant no.1 since 2002 by the competent authority Slum & J.J., MCD. Other allegations of the plaint are denied and disputed by the defendant no.1 and prays for dismissal of suit.
4. The defendants no.2 contested the present suit by filing written statement of its defence wherein took preliminary objections to the effect that the mandatory notice under Section 80 of CPC has not been served by the plaintiff upon the defendant no.2; that the suit is not maintainable as Section 45 of Delhi Urban Shelter Improvement Board and Section 49 of Delhi Urban Shelter Improvement Board Act; that the plaintiff has no right title or interest in the suit property as she is not the owner of the suit premises; that the plaintiff and defendant no.1 have not been inducted as authorized occupants in respect of the suit property. In reply on merits, it is RCA No 23/2023 Page 3/12 contended by the defendant no.2 that suit property belongs to Government of India and as per official records the plaintiff or defendant no.1 are not a licensee in respect of suit property; that the plaintiff and Mohd. Yamin had applied for grant for mutation but their application is in abeyance as the matter is subjudice before the court of law; that Karam Illahi was not the owner of the suit property therefore, the plaintiff who is claiming herself as owner has no locus standi to file the suit or claim ownership. Other allegations of the plaint are denied and disputed by the defendant no.2 and prays for dismissal of suit.
5. The plaintiff filed replication to the written statement of the defendant no.1 wherein traversed the contentions raised in the written statements and reaffirmed the allegations made in the plaint.
6. From the pleading of the parties, vide order dated 10.10.2018, the Learned Trial Court framed the following issues:-
1. Whether the suit of the plaintiff is maintainable in the present form? OPP
2. Whether the plaintiff has no locus standi to file the present suit? OPD
3. Whether this Court is not having jurisdiction to entertain and try the present suit? OPD
4. Whether the plaintiff is not having cause-of-action in her favour? OPD
5. Whether the suit is bad for non-service of the statutory notice u/s 80 CPC? OPD-2
6. Whether the plaintiff is entitled for the relief of possession of the suit property, as prayed? OPP
7. Whether the plaintiff is entitled for mesne profit/damages from the defendant no.1? OPP
8. Relief.RCA No 23/2023 Page 4/12
7. The plaintiff examined herself as PW1 and tendered her evidence by way of affidavit Ex.PW1/A and relied upon documents Ex.PW1/1
-Ex.PW1/3 and Mark-A to Mark G.
8. The defendants examined two witnesses. DW1 is Chaman, defendant no.1, who tendered his evidence by way of affidavit Ex.DW1/A and relied upon documents Ex.DW1/1 - Ex.DW1/3. DW2 is Rama Dhar Mehto who tendered his evidence by way of affidavit Ex.D2W1/A.
9. I have heard Mr. Lakshay Sharma, Advocate for the Appellant and Mr. Shiv Kumar Sharma, Advocate for the Respondent no. 1 and Mr. Ankur Jain, Advocate for respondent no.2 and have gone through the trial court record carefully.
10. Having drawn my attention on the impugned judgment, memorandum of appeal and the pleadings filed on behalf of parties, it is submitted by the learned counsel for the appellant that the impugned judgment suffers from material irregularity and is liable to be set aside. It is further submitted that the defendant was inducted as a permissive occupant in the premises by the plaintiff only.
11. On the other hand, it is submitted by counsel for the respondent no.1 that by way of the impugned judgment and decree, the suit has been rightly dismissed. It is further submitted that the appeal is not maintainable.
12. Counsel for respondent no.2 has submitted that plaintiff has no locus standi to get the premises vacated as admittedly the suit property was not RCA No 23/2023 Page 5/12 alloted in the name of the plaintiff. It is further submitted that the plaintiff has herself admitted that she is a licensee in the suit property and license is not transferable. It is further submitted that no infirmity in the judgment has been pointed out by the appellant and therefore, it is not to be interfered with.
13. I have given my thoughtful consideration on the submissions made on behalf of the parties and the contents of memorandum of appeal.
14. In the memorandum of appeal, the appellants have not assailed the issue-wise findings of the learned Trial Court, therefore, in the light of the contentions raised by the parties before this court the only point for determination is, namely:-
Whether the judgment and decree passed by the learned Trial Court are liable to be reversed?
15. The only point for consideration is whether the learned Trial Court erred in decreeing the suit and therefore, the judgment and decree passed by the learned Trial Court are liable to be reversed.
16. To prove his case, it is stated by PW1 Azra Begum in her affidavit that Karam Illahi (father-in-law) was a licensee in respect of the suit property which is owned by Delhi Urban Shelter Improvement Board, New Delhi. It is further stated by PW1 Azra Begum that the defendant no.1 was permitted to live in the premises i.e., one room forming part of the suit property temporarily on license basis. It is further stated by PW1 Azra Begum that Karam Illahi had died and after his death, his legal heirs Mohd. Shafi, Mohd.
RCA No 23/2023 Page 6/12Yameen and Mohd. Yaseen had become the co-owners/ co-sharers of the suit property by operation of law. It is further stated by PW1 Azra Begum that after the death of her husband Mohd. Yameen, she inherited the share of her husband in the suit property and the area under possession of the defendant no.1 has come to the share of the plaintiff. It is further stated by PW1 Azra Begum that defendant no.1 is in illegal possession of the premises and is not vacating and handing over the possession.
17. In the cross-examination, it is stated by the plaintiff/ PW1 Azra Begum as follows:
".The allotment was made in the name of my father-in-law Sh. Karam Illahi... I do not remember if any intimation in written was given to DUSIB regarding the death of my father-in-law.....It is wrong to suggest that the property was not allotted to my father in law alone.....It is wrong to suggest that the property was allotted to my father in law along with Sajjad Mirza and Abdul Rehman. Vol. Sajjad Mirza and Abdul Rehman resided on the first floor of the property shown in the site plan....I do not know whether DUSIB has transferred the suit property in my name or not. Again said the Department has not transferred the suit property in my name. It is correct that I have not made all the legal heirs of Sh. Karam Illahi party in the present suit......It is correct that the suit property has not been transferred/mutated in my name by the Government. Vol. I was told that the same will be done once the present suit has been decided. It is correct that at the time of institution of the present suit, the suit property was not in my name.....It is correct that the defendant has election card, aadhar card and ration card are bearing the address of the suit property."
18. To disprove the case of the plaintiff, it is stated by DW1 Chaman that plaintiff has no right, title and interest in the suit property in any manner. It is further stated by DW1 Chaman that the defendant is paying the use and occupation charges of the suit property to Slum and JJ MC department and RCA No 23/2023 Page 7/12 has acquired the legal rights to use and enjoy the suit property. It is further stated by DW1 Chaman that the defendant is using and enjoying the suit property since birth without any interference of any person in any manner and as an authorised occupant/owner. It is further stated by DW1 Chaman that he is the owner of suit property by way of adverse possession. It is further stated by DW1 Chaman that on 24.08.2002, the defendant has deposited Rs.4500 in cash in the name of Karam Illahi in respect of the suit property and also got a notice from the deputy director property Slum and JJ department.
19. In the cross-examination, it is stated by the defendant no.1/ Chaman as follows:
"....I do not know if Karam Elahi had permitted my father to reside in the suit property or not. ....For the first time and lastly, I deposited the rent in the year 2002....It is correct that I have not deposited the rent thereafter in any department whatsoever. It is correct that I never tendered any rent to the plaintiff in respect of the suit property. It is correct that Karam Elahi was the owner of the suit property.
.....I do not remember whether I am the owner of the suit property or not.....No, I am not the owner of the suit property. I am not the tenant of the plaintiff."
20. To disprove the case of the plaintiff, it is stated on behalf of defendant no.2/ D2W1 Rama Dhar Mehto that the plaintiff has not given the mandatory two month's notice under Section 80 of the CPC. It is further stated by D2W1 Rama Dhar Mehto that the plaintiff has no right, title or interest in the suit property as she is neither the owner nor licensee of the defendant no.2 in respect of suit property. It is further stated by D2W1 Rama Dhar Mehto that Karam Illahi was not the owner of the suit property but he was only a licensee and he had only lifetime interest in the suit property. It is further stated by D2W1 Rama Dhar Mehto that as per the record available RCA No 23/2023 Page 8/12 with the DUSIB, the plaintiff and the defendant no.1 have not been inducted as authorized occupants in respect of the suit property.
21. In the cross-examination, it is stated by the defendant no.2/ Rama Dhar Mehto as follows:
"It is correct that Sh. Karam Elahi was the original allottee of the suit property...It is correct that defendant no.1 Chaman Lal is not the legal heir of any original allottee i.e. Karam Elahi, Sajjad Mirza and Abdul Rehman....It is correct that till date defendant no.1 has not filed/applied any mutation to the suit property."
22. In the light of evidence of the parties to the suit, the position that emerges is that the plaintiff has sought the relief of possession of the premises from the defendant no.1 and based her claim on the allegations that her father-in-law was a licensee in respect of the suit property and after his death the suit property has been owned by his legal heirs including the husband of the plaintiff and the premises falls within the share of her husband and after the death of her husband, the plaintiff has inherited the premises.
23. The first basis of the plaintiff's claim is that her father-in-law Karam Illahi was a licensee in respect of the suit property. However, in her cross- examination, the plaintiff has admitted that the suit property had not been transferred/mutated in her name by the Government and at the time of institution of the instant suit, the suit property was not in her name.
24. Admittedly, the suit property is owned by Delhi Urban Shelter Improvement Board (DUSIB), New Delhi, the defendant no.2. In the evidence produced on behalf of the defendant no.2, it has been claimed that RCA No 23/2023 Page 9/12 the plaintiff has no right, title or interest in respect of the suit property as she is neither the owner nor the licensee of the defendant no.2 in respect of the suit property. It is also claimed on behalf of the defendant no.2 that the plaintiff and the defendant no.1 have not been inducted as authorized occupant in respect of the suit property.
25. The plaintiff has not produced any document of grant of license in respect of the suit property in favour of her father-in-law Karam Illahi except photocopy of one receipt of payment of license fee Ex.PW1/1.
26. It is the case of the defendant no.2 DUSIB that Karam Illahi, Sajjad Mirza and Abdul Rehman are licensee in respect of the suit property. D2W1 Rama Dhar Mehto, Assistant Director (Property) has also stated in his evidence Ex.D2W1/A that these three persons were licensee in respect of the suit property as per the official record available. During the cross- examination of the plaintiff also a specific question was put to her that the suit property was allotted to her father-in-law along with Sajjad Mirza and Abdul Rehman which has been denied by her. Therefore, in the light of above discussion, the plaintiff has failed to prove that the suit property was allotted to her father-in-law alone.
27. But for the aforesaid discussion, even if it is assumed that father-in- law of the plaintiff was sole licensee in respect of the suit property, the plaintiff has failed to show how and under what law, after the death of her father-in-law, her husband and other legal representatives of Karam Illahi had become co-owners of the suit property. The learned Trial Court while deciding this controversy has inter-alia observed as follows:-
RCA No 23/2023 Page 10/12"Hon'ble High Court of Delhi, in Bharat Petroleum Corporation Ltd. Vs Municipal Corporation of India, 1996 SCC Online Del 603, while explaining the distinction between "lease" and "licensee", has held that a licensee comes to an end with the death of the licenses. The relevant excerpt of the judgment is re-produced hereunder:-
(9) A close scrutiny of Section 105 of the T.P. Act reveals that
(i) It is a transfer of an interest in an immovable property whereby the lessee becomes entitled to the entitled to the enjoyment of such immovable property.
(ii) It carries along with it a right to the exclusive possession thereof.
(iii) The above said transfer is for a consideration.
(iv) It is either for a limited period or it may be in perpetuity.
(v) The existence of the said movable property is a condition precedent for the creation of a lease.
(a) A license on the other hand, is simply a permission to do or continue to do something over the immovable property which in the absence of such a license would be a trespass.
(b) A license is personal to the licensee who consequently has got no power to sub-let.
(c) Unlike a lease a licensee comes to an end alongwith the death of the license.
(d) The licensee has no legal status in land.
22. In view of the judgments referred above, it becomes amply clear that the license granted in favour of Sh. Karam Illahi, came to an end with his death, and the plaintiff herein cannot claim any right in the suit property on the basis of such license. Accordingly, I am of the firm opinion that the plaintiff cannot maintain the present suit on the claim that she had inherited the license from Late Sh. Karam Illahi. The plaintiff has failed to prove that she is entitled to the possession of the suit property.
Hence, the present issue is decided in favour of defendant no.1 and against the plaintiff."
28. Admittedly, Karam Illahi has died. In the light of law declared by judgment of Hon'ble the Delhi High Court in Bharat Petroleum Corporation's case (supra), the Learned Trial Court has rightly come to the conclusion that the license granted in favour of Karam Illahi had come to an end with his death and the plaintiff could not claim any right in the suit property on the basis of such right and has, therefore, rightly held that the plaintiff could not maintain the suit on the basis that she had inherited the license from late Karam Illahi.
RCA No 23/2023 Page 11/1229. In the light of above discussion, I am of the clear view that the plaintiff has failed to prove her case and the learned Trial Court has rightly dismissed her suit.
30. While passing the impugned judgment and decree, the learned Trial Court has properly appreciated the facts and circumstances indicated herein above and has also appreciated the position of law correctly.
31. In view of my above discussion, I am of the considered view that the impugned order and decree suffers from no infirmity and hence is not liable to be interfered with. The appeal is dismissed.
32. The appeal file after due compliance be consigned to the Record Room. Trial Court Record be sent back along with copy of the judgment.
Digitally signed by DR RAKESHDR Announced in the Open Court KUMAR RAKESH Date:
KUMAR 2023.05.20 on 20th May, 2023 17:35:52 +0530 (Dr. Rakesh Kumar) Additional District Judge-03 Central District, Tis Hazari Courts, Delhi RCA No 23/2023 Page 12/12