Delhi District Court
Mahant Seema Dass vs Surender Kumar on 19 April, 2025
IN THE COURT OF MR. SANJAY GARG-I
PRINCIPAL DISTRICT & SESSIONS JUDGE,
CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI
RCT No.68/2019
CNR No. DLCT01-006132-2019
Mahant Seema Dass,
W/o Late Mahant Akhil Dass,
R/o 3737, Gali Charan Dass, Charkhwalan,
Hauz Qazi, Delhi ......Appellant
Versus
1. Surender Kumar
S/o Revti Prashad
R/o 3739, Ground Floor,
Gali Charan Dass, Hauz Qazi, Delhi.
......Respondent no. 1
2. Vijender Kumar Gupta,
S/o Desh Raj,
R/o J-24, Second Floor,
Navin Shahadra, Delhi- 110032
......Respondent no.2
Date of filing of appeal : 04.05.2019
Date of arguments : 15.04.2025
Date of Judgment : 19.04.2025
JUDGMENT
1. This Judgment shall decide an appeal filed under Section 38 of the Delhi Rent Control Act, 1958 as amended up to date, RCT No. 68/2019 Mahant Seema Dass v. Surender Kumar & Ors. Page 1 of 14 Digitally signed by SANJAY SANJAY Date:
GARG GARG 2025.04.19 16:45:31 +0530 (hereinafter referred as "the DRC Act") whereby the appellant has assailed the impugned order dated 27.04.2019 passed by Sh. Puneet Pahwa, Ld. ARC-2, Central, Tis Hazari Courts, Delhi, whereby the application filed by the appellant under section 25 and 37 of the DRC Act read with Order 21 Rule 97-102 and 151 CPC, was dismissed.
2. The factual matrix of the case is that respondent no. 1 herein had filed a petition for eviction of respondent no. 2 herein under section 14 (1) (e) read with Section 25B of the DRC Act in respect of property no. 3737, Ground Floor, Gali Charan Dass, Hauz Qazi, Delhi-110006 (hereinafter referred to as 'subject property') and also produced copy muntajimnama and sale deed dated 09.06.1999 in support of his ownership qua the property in question. Vide order dated 07.05.2018 of Ld. ARC-02 while deciding the application filed by respondent no. 2 seeking leave to contest the application for eviction of respondent no. 2 herein, dismissed the same while observing that there is no triable issue between the parties which entitles the respondent no. 2 to leave to contest the present application for eviction and allowed the application for eviction filed by respondent no. 1. 2.1 Thereafter respondent no. 1 filed an Execution Petition for execution of the eviction order dated 07.05.2018. During the pendency of the execution petition, appellant herein had filed objections. Vide order dated 27.01.2019, the objections filed by the appellant herein were dismissed. Hence, the present appeal.
3. The appellant has stated that she is the Mahant of Charan Dasi order of Sadhus, whose principal seat (Sadar Gaddi) is at Delhi. The property no. 3737, Gali Charan Dass, Hauz Qazi, Digitally RCT No. 68/2019 Mahant Seema Dass v. Surender Kumar & Ors. Page 2 of 14 signed by SANJAY SANJAY Date:
GARG GARG 2025.04.19 16:45:46 +0530 Delhi is a religious endowment/math property which comprises of a mandir by the name of Sh. Ram Sukdev Sh. Shyam Charandass and it is for this reason that the road on which Mandir is situated is called Charan Dass Marg. The Math which includes the temple, residential quarter of the Mahant on the upper floors and shops were vested in Mahant Akhil Dass by virtue of Will dated 18.09.1989 executed by Mahant Parveen Dass, Guru of Mahant Akhil Dass and which was registered as document no. 16086 in Addl. Book No.3, Volume no. 775 on pages 187 to 188 on 18.09.1989. Mahant Gulab Dass had acquired the management of the said Math by virtue of a muntazimnama executed on 11.07.1996 Said muntazimnama was confirmed and accepted by the members of Mel Charan Dass that Mahant Parveen Dass chela Mahant Gulab Dass was a Gaddi Nashin of Mahant Gulab Dass and accordingly, the Math alongwith the temple, residential quarters and the shops around the Math form an integral and unserverable part of the Math itself was to vest in Mahant Parveen Dass chela Mahant Gulab Dass. 3.1 Said property had devolved upon Mahant Akhil Dass by virtue of the registered will dated 18.09.1989 which has been accepted by all the sundery. Subsequently, Mahant Akhil Dass by a Declaration dated 13.02.2002 appointed the appellant as Mahant. Mahant Akhil Dass also executed a Will dated 22.11.1995 and got its registered in favour of the Appellant Mahant Seema Dass, which would have come into operation after the death of Mahant Akhil Dass. That whatever name may be given to the functions of a Mahant, he is only the manager and custodian of the idol or the institution. In no case is the property Digitally RCT No. 68/2019 Mahant Seema Dass v. Surender Kumar & Ors. Page 3 of 14 signed by SANJAY SANJAY GARG GARG Date:
2025.04.19 16:45:54 +0530 conveyed to or vested in him as his personal property, nor is he a trustee. Thus a Mahant is incompetent to create any interest in the Math property to inure beyond his life. No reason has been given which led Mahant Akhil Dass to execute and register a Sale deed dated 09.06.1999.
3.2 Respondent no. 1 preferred an eviction petition against the tenant Vjiender Kumar Gupta (respondent no. 2 herein), however, respondent no. 2 rather contesting the eviction petition handed over the key of the premises to the appellant on 01.12.2018 and also disclosed that respondent no. 1 had obtained eviction order dated 07.05.2018. Objections were filed by the appellant on 13.12.2018 and vide order dated 27.04.2019 same were dismissed by the Ld. Trial Court.
GROUNDS OF APPEAL
4. The impugned order is perverse and not sustainable in view of the facts of the present case. The impugned order has been passed in a mechanical fashion without any application of mind. The Ld. Trial Court has observed in the impugned order that not even a single document has been filed on record by the objector to show that she had any independent right/ title in the property in question and observed that the declaration deed dated 13.02.2022 filed by the appellant could not have vested any right in favour of the appellant as Mahant Akhil Dass had already executed the Sale deed in favour of the decree holder. Ld. Trial Court without even calling for evidence to be led in the matter gave a cryptic observations that the JD appears to be more in Digitally RCT No. 68/2019 Mahant Seema Dass v. Surender Kumar & Ors. Page 4 of 14 signed by SANJAY SANJAY GARG GARG Date:
2025.04.19 16:46:03 +0530 collusion with the objector with the DH. Ld. Trial Court did not appreciate the fact that the JD had paid the rent to the appellant in respect of the tenanted premises and receipts were also filed by the objector alongwith objections.
4.1 Ld. Trial Court has dismissed the objections by observing that the prayer sought in the objections is beyond the scope of execution proceedings. The appellant while questioning the authenticity of the sale deed dated 09.06.1999 was claiming an independent right to the property in question and therefore fully entitled to invoke Section 25 of DRC Act alongwith Order 21 Rules 97-102 of CPC. The only event when the Mahant may sell the property of math is when there is bonafide requirement or legal necessity in respect of the Math. Ld. Trial Court failed to appreciate that if the property had been sold to the DH way back in the year 1999, there would not have been any question for the present objector to have continued to collect the rent as is evidence from the rent receipts. Ld. Trial Court failed to appreciate that the finger of the suspicion is also being pointed at the JD alongwith DH for the reason that a reading of the eviction order indicates that the JD had admitted in his leave to defend application that the DH had started collecting the rent from the JD from the year 1999. There was no cause or reason or justification for the JD to have admitted the existence of landlord
- tenant relationship as the JD had paid the rent to the appellant as is evident from the rent receipts.
5. I have heard arguments on behalf of Sh. Aly Mirza, Ld. Counsel for the appellant and Sh. Nitin Sharma, Ld. Counsel for the respondent. Ld. Counsel for appellant has relied upon Digitally RCT No. 68/2019 Mahant Seema Dass v. Surender Kumar & Ors. Page 5 of 14 signed by SANJAY SANJAY GARG Date:
GARG 2025.04.19 16:46:10 +0530 judgments viz- Brahmdeo Chaudhary v. Rishikesh Prasad Jaiswal: (1997) 3 SCC 694, Shreenath and Ors v. Rajesh and Ors: (1998) 4 SCC 543, Gaurav Arya and Ors v. Civil Judge (Senior Division) and Ors.: 2013 (9) ADJ 590, Kuber Housing Investment and Finance Private Ltd. v. TCI Finance Ltd. And Ors.: 2013 (5) ABR 11, Subhash Chander and Anr. v. Smt. Phoolwati and Ors.: MANU/PH/0567/2009, Angurbala Mullick v. Debabrata Mullick: AIR 1951 SC 293, Bhagwan Bai v. Chiranji Lal and Anr: MANU/PH/0219/2009, Mohd. Farzam v. Sarfaraz, I. A. No.7476/2006 decided by Hon'ble High Court of Delhi on 20.04.2010. I have perused the record and various documents filed on record by the parties.
ARGUMENTS
6. Ld. Counsel for appellant reiterates the averments in the appeal. It is argued that appellant was the owner of the property in question even if it is assumed that sale deed 09.06.1999 was executed in favour of respondent no. 1. Ld. Trial Court without appreciating the prayer for cancellation of and the real controversy at hand decided to accept the sale deed dated 09.06.1999 as correct. Ld. Trial Court could not have relied upon sale deed 09.06.1999 to say that the DH had an independent right in view of the sale deed. Ld. Trial Court has disregarded the declaration deed dated 13.02.2002 by observing that sale deed dated 09.06.1999 had already been executed and therefore appellant did not have any independent right or title in the property in question. Perusal of document dated 11.07.1966 would reveal that the property in question is a religious Digitally RCT No. 68/2019 Mahant Seema Dass v. Surender Kumar & Ors. Page 6 of 14 signed by SANJAY SANJAY GARG GARG Date:
2025.04.19 16:46:17 +0530 endowment which has been passed on from guru to chela. The legal position of such property is that it is never considered to be the self-acquired property and the Mahant is only a manager/caretaker of such property. In this regard reliance is placed on Angurbala Mullick v. Debabrata Mullick (supra). The Mahant can only dispose of property in the event of bonafide requirement and even then no such bonafide requirement is made out or mentioned in the sale deed. It is not explained as to why respondent no. 1 did not initiate eviction proceedings against respondent no. 2 during the lifetime of Mahant Akhil Dass. Appellant is the wife of Mahant Akhil Dass and at no point of time, he disclosed her that he had disposed of the property in question. It is the claim of the respondent no. 1 that Mahant Akhil Dass sold the property in question to him apart from many other property but it does not mean that a person who had sold 10 properties, must have sold an 11th property. It is stated that Mahant Akhil Dass had sold other properties but never sold the property in question. If the Ld. Trial Court was to give finding of collusion, same could have been given only after permitting the parties to lead evidence. The eviction order has been passed in favour of DH. It is mentioned in the order, JD has admitted the property to be a religious endowment and has further admitted that after Mahant Parveen Dass it was Mahant Akhil Dass who was collecting the rent from the JD, it appears that it was not disclosed by the JD that Mahant Akhil Dass had passed away in the year 2002. No reason or any explanation was given as to how in the year 1999 as alleged by the JD, the DH pressurize for Digitally signed by SANJAY SANJAY GARG GARG Date:
2025.04.19 16:46:23 RCT No. 68/2019 Mahant Seema Dass v. Surender Kumar & Ors. Page 7 of 14 +0530 the rent of the property in question. The eviction decree is a collusive decree between the DH and JD.
7. On the other hand, Ld. Counsel for respondent no. 1 argued that the appellant has no independent title in the suit property and therefore, the objections are not maintainable and provisions of Section 25 of DRC Act is not applicable. The appellant is the trespasser in the suit property and the Court can give protection to a bonafide tenant and not to a trespasser. The appellant and the respondent no. 2 are facing contempt proceedings before Hon'ble High Court of Delhi CM (M) No.1751/2019 and the next date is 16.07.2024. Respondent no. 1 is a bonafide purchaser for consideration through registered sale deed 09.06.1999 executed by husband of appellant. Section 50 (4) of DRC Act empowers civil court to decide the question of title but appellant has not filed any suit against the respondent no.1 Present objections are result of collusion between the appellant and the respondent no. 2 after passing of the eviction order dated 07.05.2018. Respondent no. 2 has not mentioned or whispered in the litigations initiated by the respondent no. 1 about the payment either to the appellant or to the other persons except respondent no. 1 after execution of sale deed 09.06.1999.
The appellant has no independent title in the suit property as she has claimed her ownership by virtue of Will dated 22.11.1995 executed by her deceased husband Mahant Akhil Dass.
8. It is argued that the appellant has herself sold some portions of the said property no. 3737, Gali Charan Dass, Chakhewalan, Hauz Qazi, Delhi and the suit property also forms Digitally RCT No. 68/2019 Mahant Seema Dass v. Surender Kumar & Ors. Page 8 of 14 signed by SANJAY SANJAY GARG GARG Date:
2025.04.19 16:46:30 +0530 part of it. Sale deeds dated 08.12.2010 and 28.09.2012 executed by the appellant are already on record. In the said Sale deed, the appellant has claimed her ownership in respect of suit property by virtue of a Will dated 22.11.1995 executed in her favour by her husband Mahant Akhil Dass. The appellant cannot be allowed to blow hot and cold at the same time. The appellant had also instituted an eviction petition under section 14 (1) (e) of the DRC Act against the respondent no. 2 herein, bearing RC/ARC no.922/2018 filed on or about 23.10.2018. The same was apparently a collusive eviction petition. The eviction order against respondent no. 2 was already passed before the institution of said eviction petition i.e. on 07.05.2018. In her eviction petition the appellant had claimed her ownership by virtue of the Will dated 22.11.1995 executed by her husband Mahant Akhil Dass. This fact is borne out from the the order dated 31.10.2018 passed in the said eviction petition no.922/2018. The execution and registration of the Sale Deed dated 09.06.1999 in favour of respondent no. 1 by Mahant Akhil Dass was in the active and conscious knowledge of the appellant since the beginning. Mahant Akhil Dass had not only sold out the suit property to the respondent no. 1 but also sold out several other portions of the properties owned by him and this fact was in the knowledge of the appellant since the beginning. The respondent no. 2 has never alleged about the payment of rent to the appellant in eviction petition instituted against him by the respondent no. 1 and also in petition under Section 19 of Slum Act as also filed by the respondent no. 1 against respondent no. 2. Hence, present appeal is liable to be dismissed. Digitally signed by SANJAY SANJAY GARG GARG Date:
2025.04.19 RCT No. 68/2019 Mahant Seema Dass v. Surender Kumar & Ors. Page 9 of 14 16:46:37 +0530 ANALYSIS
9. One of the main contention raised on behalf of appellant is that the Ld. Trial Court has failed to consider the declaration deed dated 13.02.2002 in favour of the appellant. It is stated that the right of the appellant being objector before Ld. Trial Court in execution should have been protected by allowing him to lead evidence which the Ld. Trial Court has refused to do.
10. As per the impugned order respondent no.1 being DH has claimed ownership over the subject property on the basis of sale deed dated 09.06.1999 executed by Mahant Akhil Dass in his favour. On the other hand, appellant is claiming her right over the subject property on the basis of declaration deed dated 13.02.2002 executed by her husband Mahant Akhil Dass. As per the copy of declaration deed, Mahant Akhil Dass had handed over the gaddi of Gosain Jugta Nand to his wife i.e. appellant here. Respondent no.1 is claiming ownership over the subject property on the basis of registered sale deed dated 09.06.1999 stated to be executed by Mahant Akhil Das in his favour. It is relevant to mention here that there is a Will executed by previous Mahant Praveen Dass regarding the subject property and other properties in favour of Mahant Akhil Dass.
11. Ld. Counsel for the appellant has stated that appellant should have been allowed to lead evidence in this matter but observing that JD appears to be in collusion with objector, she was not allowed to lead evidence and objections got dismissed vide the impugned order. It is stated that order 21 Rule 101 CPC provides that all questions, questions relating to right, Digitally RCT No. 68/2019 Mahant Seema Dass v. Surender Kumar & Ors. Page 10 of 14 signed by SANJAY SANJAY GARG GARG Date:
2025.04.19 16:46:44 +0530 title or interest in the property, arising between the parties to a proceeding on an application under Rule 97 or Rule 99 shall be determined by the Court dealing with the application and not by a separate suit.
12. The other contention raised on behalf of Ld. Counsel for the appellant is that Mahant Akhil Das was only custodian of the subject property and he had no right to transfer the same to respondent no.1. In support of his submissions Ld. Counsel has relied upon the observation made by Hon'ble Supreme Court in Angurbala Mullick v. Debabrata Mullick (supra). In this case the Court has observed that in the Hindu religious endowment the entire ownership of the dedicated property is transferred to the deity of the institution itself as a juristic person and Shebait or Mahant is a mere Manager.
13. Perusal of document Muntazimnama dated 11.07.1966 shows that Mahants were appointed as managers only of various properties which comprise in charandasi order. It is apparent that the suit property belongs to charandasi order and the property is there for Maharaj Ji as stated in will of Akhil Dass. Hence, it is shebait property which is amalgam of office as well as property and thus the law laid down by Hon'ble Supreme Court in Kali Kinkor Ganguly Vs Pann Banerjee and Ors.:
1974 AIR 1932 has to be followed. In Kali Kindor Ganguly (supra) it has been held that although Shebaiti right is heritable like any other property it lacks other incident of proprietary right, namely, capacity of being freely transferred by person in whom it is vested. The rule against alienation of the Shebaiti right has Digitally signed by RCT No. 68/2019 Mahant Seema Dass v. Surender Kumar & Ors. Page 11 of 14 SANJAY SANJAY GARG GARG Date:
2025.04.19 16:46:50 +0530 been relaxed in certain decision of the High Courts which are- a) Where the transfer is not for any pecuniary benefit and the transferee is the next in heir of the transferor or stands in line of succession of shebaits and suffers from no disqualification regarding performance of duties; b) When the transfer is made in the interest of deity itself and to meet some pressing necessity; c) When a valid custom is proved sanctioning the alienation of shebaiti right within a limited circle of purchasers who are actual or potential shebaits of the deity or otherwise connected with the family. It has further been held that Rule of necessity extended only to an alienation of temporality of the idol and does not and cannot apply to alienation of spiritual rights and duties.
14. Since the sale deed dated 09.06.1999 has not been executed for proven necessity and the same was executed for pecuniary benefit and the transferee i.e. respondent no.1 is not the next in heir of the transferor or stands in line of succession of shebaits thus suffers from disqualification regarding performance of duties. Further, the transfer was not made in the interest of deity itself and to meet some pressing necessity. Moreover, nothing has been placed on record to show a valid custom proving sanctioning the alienation of shebaiti right within a limited circle of purchasers who are actual or potential shebait of the deity or otherwise connected with the family.
15. Perusal of the record shows that on 08.02.2023, the appellant had dropped prayer clause (B) and (C) i.e. (B) for declaring the objector Mahant Seema Das, w/o Late Mahant Akhil Das (appellant here) as the owner in respect of subject Digitally RCT No. 68/2019 Mahant Seema Dass v. Surender Kumar & Ors. Page 12 of 14 signed by SANJAY SANJAY Date:
GARG GARG 2025.04.19 16:46:56 +0530 property and (C) cancel the sale deed dated 09.06.1999 in respect of subject property with leave to seek those reliefs at appropriate stage in appropriate proceedings. Thus, the prayer of the appellant before this Court is to set aside the impugned order dated 27.04.2019 and to remand back the case for recording the evidence.
DECISION
16. It is pertinent to mention here that although an Executing Court cannot go beyond the decree, but in the light of provisions of Order 21 Rule 97 to 106 CPC, Executing Court can look into the aspect of all questions, questions relating to right, title or interest in the property, arising between the parties to a proceeding.
17. In view of the aforesaid discussions, in my opinion shebaiti rights were transferred and appellant is the proper and necessary party for proper adjudication of the present dispute.
Coming to the prayer made by appellant in this appeal, vide order dated 03.02.2023 prayer B and C were dropped and now only relief sought by appellant is mentioned in prayer A i.e. quash and set aside judgment and order dated 27.04.2019 passed by the Court of Ld. ARC-02, Central, Delhi. The relief not claimed by the appellant being objector before the ld. Trial Court cannot be sought from the Appellate Court. In her application / objection dated 13.12.2018 this appellant had sought only two reliefs which are prayer B and C here in this appeal and same are lying dropped vide order dated 03.02.2023 as mentioned above in this para itself. Moreover, the order dated 27.04.2019 is under Digitally signed RCT No. 68/2019 Mahant Seema Dass v. Surender Kumar & Ors. Page 13 of 14 by SANJAY SANJAY GARG Date:
GARG 2025.04.19 16:47:02 +0530 Section 14 (1) (e) and under Section 25B (8) of the DRC Act, the only way to assail this order is by filing revision petition before the Hon'ble High Court. This Court lacks power to set aside an eviction order under Section 14(1) (e) of DRC Act. It seems under the circumstances of this case, the appropriate remedy before the appellant is to seek cancellation of sale deed dated 09.06.1999 in favour of Decree Holder in respect of the subject property and also seek relief of appropriate declaration.
18. In view of the aforesaid reasons, the appeal is dismissed. The Trial Court Record be sent back along with copy of this order.
19. The appeal file be consigned to Record Room.
Digitally signed by SANJAY SANJAY GARG Announced in the open Court Date:
GARG 2025.04.19
16:47:08
on 19th April, 2025 +0530
(SANJAY GARG-I)
Principal District & Sessions Judge,
Central District, Tis Hazari Courts,
Delhi
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