Delhi District Court
Karimuddin vs Chunnu Khan on 10 February, 2021
IN THE COURT OF SCJ-CUM-RC (NORTH EAST)
KARKARDOOMA COURTS COMPLEX, NEW DELHI
PRESIDED BY : SH. VISHAL PAHUJA
RCA SCJ No. 7/19 CNR no. DLNE03-000417-2019
Karimuddin v. Chunnu Khan
Karimuddin,
s/o Late Sh. Nafeesuddin,
r/o K-433, Gali no. 4,
Gautam Vihar,
Delhi-110053. ........... Appellant
Versus
Chunnu Khan,
s/o Shri Abdul Razzak
r/o K-433, Gali no. 4,
Gautam Vihar,
Delhi-110053. ........... Respondent
1. Date of institution : 03.04.2019
2. Date of order reserved on : 05.02.2021
3. Date of Final Order : 10.02.2021
4. Final Order : Dismissed
APPEAL UNDER SECTION 96 OF THE CODE OF CIVIL
PROCEDURE
BRIEF FACTS:
1. This appeal u/s 96 of CPC, 1908, is at the instance of original defendant and is directed against the order dated 23.02.2019, passed by the court of Sh. Ankit Singla, Ld. ACJ/ARC/CCJ, North East District, Karkardooma Courts, Delhi, in Civil Suit No. 706/18 in case titled "Chunnu Khan v. Karimuddin", whereby the application under order XII rule 6 CPC moved by the plaintiff (respondent herein) was allowed and the defendant (appellant herein) was directed to vacate the property that is two rooms at first floor, part of K-433, gali no. 4, Gautam Vihar, Delhi-110053 (herein after RCA SCJ no. 7/19 Karimuddin v. Chunnu Khan Page no. 1 of 12 called suit property) and to handover the vacant peaceful possession to the plaintiff (respondent herein) and further restrained from creating third party interest or part with the possession of the suit property.
2. For the better and effective appreciation of the controversy involved and the grounds of challenge hereby taken on behalf of the appellant, it would be apt herein to briefly outline the trial court proceedings. For the sake of convenience, parties shall be referred to by their nomenclature in their main suit.
Case of the plaintiff:
3. The case of the plaintiff is that he is the owner of the suit property bearing no. K-433, Gali no. 4, Gautam Vihar, Delhi-110053. The defendant is real brother-in-law of the plaintiff who was inducted as licensee in the year 2007 at the first floor consisting of two rooms herein called as suit property as shown in red colour in the site plan. Possession of defendant is purely a permissive possession. As the relations between the parties became bitter during the course, plaintiff vide legal notice dated 08.05.2018 terminated the license of defendant and requested him to hand over the physical possession of suit property within 15 days from receipt of the legal notice, but despite expiry of period of 15 days, defendant failed to hand over the possession of suit property. In these circumstance, defendant become unauthorized occupant in the suit property. The plaintiff claimed the possession, damages @ Rs. 8,000/- p.m. along with the relief of permanent injunction restraining the defendant from creating third party interest in the suit property by way of present suit.
RCA SCJ no. 7/19Karimuddin v. Chunnu Khan Page no. 2 of 12 Case of the Defendant:
4. The case of the defendant is that plaintiff has no locus to file the present suit as defendant and his brother namely Sh. Azeemuddin are actual owners of the suit property. As per defendant he, his brother Sh. Azeemuddin along with Iqbal @ Babu and Abdul Qadir had purchased suit property, measuring 200 sq. yards, in the year 1998, in the name of the plaintiff as plaintiff is the real brother-in-law of defendant. The defendant was the resident of Bijnor, UP and in the year 2000, he came to Delhi and constructed the property on portion of 60 sq. yards as Iqbal @ Babu took the plot of 100 sq. yards and Abdul Qadir took the corner plot of 40 sq. yards. It is claimed by the defendant that he is residing in the suit property since year 2000 without any obstruction and hurdle and he was never licensee of the plaintiff. It is stated that in the beginning of the year 2018, defendant asked plaintiff to transfer title documents in his name, but plaintiff handed over the original chain of documents and assured defendant that the title documents would be executed in favour of defendant but the plaintiff did not do so. It is further pleaded that on 27.09.2018 a panchayat meeting was held at Bijnor, UP and it was decided that plaintiff would transfer the title documents in favour of defendant after receiving the share of Rs. 3 lacs and said settlement was reduced in writing in the presence of marginal witnesses. The defendant refuted the claim of the plaintiff in toto and sought dismissal of the suit.
5. The plaintiff filed an application u/o XII rule 6 CPC before the Ld. Trial Court which was allowed vide the impugned order dated 23.02.2019 and a part decree was passed in favour of the plaintiff granting the relief of mandatory injunction as well as permanent injunction. Defendant has been directed to handover the vacant and physical possession of the suit property and has been further restrained from creating third party interest in the same.
RCA SCJ no. 7/19Karimuddin v. Chunnu Khan Page no. 3 of 12 Feeling aggrieved with the said order, the present appeal has been preferred on 03.04.2019 wherein the defendant has challenged the findings of the Ld. Trial Court.
GROUNDS OF APPEAL:
6. The pith and substance of the grounds upon which the defendant has based his challenge to the impugned order dated 23.02.2019 passed by the Ld. Trial Court is as follows:
a) That the defendant has not made any categorical admissions qua the claim of the plaintiff such as licensor and licensee relationship, ownership of the plaintiff on the basis of title documents which the plaintiff was required to prove on record by leading evidence and also not admitted the receiving of legal notice issued by plaintiff.
b) That the plaintiff has concealed the settlement dated 27.09.2018 arrived before the Panchayat witnessed by the marginal witnesses in which the plaintiff agreed to transfer the title in lieu of Rs. 3,00,000/- but he did not comply with the terms and this fact goes to the root of the case and was required to be proved during the trial.
c) That the defendant has been in possession of the entire property that is K-433, Gali no. 4, Gautam Vihar, New Delhi, measuring 60 sq. yards.
instead of first floor consisting of two rooms as claimed by the plaintiff. Hence, the possession of actual portion with the defendant was required to be determined by leading evidence.
d) That plaintiff being the brother-in-law of the defendant was considered trust worthy and the plaintiff held the suit property in fiduciary capacity which is covered by the exception provided in section 4(3)(b) of the Benami Transactions (Prohibition) Act, 1988 so defence of defendant is not hit by Section 4 of the Benami Transactions (Prohibition) Act, 1988.
RCA SCJ no. 7/19Karimuddin v. Chunnu Khan Page no. 4 of 12
e) That the order of the Ld. Trial Court has been passed in haste and
the discretion has not been exercised judiciously while allowing the application of the plaintiff u/o XII rule 6 CPC as the issues raised by the defendant warranted adducing of evidence and the reliefs cannot be granted summarily under the aforesaid provision.
7. Per contra, it has been argued on behalf plaintiff that impugned order is a well reasoned order passed on the basis of material available on record. It suffers no illegality or infirmity and accordingly, does not deserve any interference by this court.
8. I have meticulously perused the complete record including the trial court record. I have also carefully heard both the sides.
FINDINGS:
9. Ld. Counsel for the defendant has raised the contention that defendant has not made any categorical admission qua the relationship between the parties as that of licensor and licensee nor any categorical admission qua the ownership of the plaintiff has been made as it is the plea of defendant that the property in question has been purchased by him by his own funds, though, the documents were executed in the name of plaintiff. Further no admission of receiving of legal notice is there in WS. Hence, the evidence was required to be led on record on this aspect.
The finding of Ld. Trial Court on this aspect is reproduced as under:
".....10. In the present case, defence taken by defendant is that the sale consideration was paid by him and his brother and property was purchased in the name of the plaintiff. The said transaction is squarely covered by Section 2(9) of the Benami Transaction (Prohibition) Amendment Act, 2018. In view of RCA SCJ no. 7/19 Karimuddin v. Chunnu Khan Page no. 5 of 12 provision of Section 4 of the said act, defendant cannot take defence that he is the actual owner of the suit property and suit property was merely purchased in the name of the plaintiff. No other defence is taken by the defendant to protect his possession.
11. Since, it is categorically admitted by the defendants that the suit property is in the name of the plaintiff, the defence taken by the them is barred by Section 4 of the Benami Transaction (Prohibition) Act, 1988. Since, no other defence is taken by the defendant to protect their possession or through light on the nature of their possession, it is held that the relationship between the plaintiff and defendants is that of licensor and licensee.
12. The another fact which the plaintiff required to prove is that he has duly terminated the license of the defendants. In Nopany Investment (P) Ltd. v. Santokh Singh (HUF) (2008) 2 SCC 728, it was held that filing of an eviction suit under the general law itself is a notice to quit on the tenant, therefore, no notice to quit was necessary under section 106 of the Transfer of Property Act. Although defendant has specifically denied receiving notice under 106 of TPA, but still in view of the aforesaid judgment by the Hon'ble Apex Court, it is held that requirement of notice is sufficiently met by the plaintiff to file the present suit.
13. Since, both the ingredients to get the relief of mandatory injunction are made out from the pleadings of the parties, application of plaintiff under Order 12 rule 6 CPC is allowed. Plaintiff is held entitle to decree of mandatory injunction. Defendant is directed to hand over the vacant physical possession of suit property i.e. two room at the first floor, part of the property bearing no. K-433, Gali no. 4, Gautam Vihar, Delhi. Defendant is further restrained from creating third party interest or part with the possession of the aforesaid suit property.
10. It is pertinent to note that defendant has claimed his possession over the suit property as owner of the suit property and no other capacity under RCA SCJ no. 7/19 Karimuddin v. Chunnu Khan Page no. 6 of 12 which he has been in possession has been pleaded. As far as ownership is concerned it is the plea of the defendant himself that the documents of the property were executed in name of the plaintiff, meaning thereby the ownership of the suit property stands in the name of the plaintiff. Now these statements of the defendant made in para no. 5 of the preliminary objection makes out a categorical admission on the part of the defendant showing the plaintiff to be title holder of the suit property. In view of the unambiguous admission of defendant, plaintiff was not even required to prove his title documents. Since, Defendant has not taken the plea of being tenant or any other capacity under which he is in possession of the suit property other than being owner which he could not show clearly establishes the relationship of licensor and licensee as claimed by the plaintiff. As far as issue of notice is concerned, judgment of Hon'ble Supreme Court in case titled Nopany Investment (P) Ltd. Vs. Santokh Singh (HUF) (2008) 2 CC 728 has held that filing of an eviction suit under general law itself is a notice to quit on the tenant, therefore, no notice to quit was necessary under section 106 of Transfer of Property Act. In view of the above judgment requirement of notice is sufficiently met by plaintiff by filing the suit.
In view of the observations given above the contention raised by the defendant are not tenable in the eyes of law and is liable to be discarded.
11. Now coming to the second ground of appeal whereby defendant claims that plaintiff has concealed the settlement dated 27.09.2018 arrived before the panchayat whereby plaintiff agreed to transfer the title in lieu of Rs. 3 lacs and this required evidence.
At the outset, it is relevant to note that even if the defendant could establish the existence of alleged settlement, it does not make him the RCA SCJ no. 7/19 Karimuddin v. Chunnu Khan Page no. 7 of 12 owner in possession of the suit property. At the most he could only seek the specific performance of such agreement. It is pertinent to note that defendant filed a suit titled as Karimuddin v. Chunnu Khan and Smt. Rihana CS no. 155/19 before this court seeking the relief of specific performance of contract and permanent injunction and the same was dismissed by the Ld. Predecessor of this court on 26.03.2019 holding that the plaintiff (defendant herein) has no cause of action. The said suit and its dismissal by the court has been concealed by the defendant herein in the main suit proceedings as well as in the appeal proceedings. Admittedly, the said order dated 26.03.2019 has not been challenged by the defendant till date there by has attained finality. Moreover, the proving of settlement as claimed by defendant would not have any effect on the suit or the reliefs prayed by plaintiff.
In view of the discussion above this ground of appeal taken by defendant being devoid of any merits also stands rejected.
12. Now coming to the third aspect where defendant has claimed to be in possession of the entire property contrary to the claim of the plaintiff with respect to first floor as suit property. Ld. Counsel raised the contention that the actual status of possession of the portion of the property was required to be ascertained by leading evidence.
As far as para 7 of the preliminary objections taken by the defendant in his WS is concerned, he claims to have been residing in the suit property since the year 2000. Now the suit property as per the plaint is reflected as first floor, consisting of two rooms as shown in red colour in the site plan annexed. Nowhere the defendant in reply on merits of his WS has claimed to have been in possession of entire property. No electricity bill or water bill or any such document has been filed by the defendant along with his WS to show his possession over the entire property. Whereas on the RCA SCJ no. 7/19 Karimuddin v. Chunnu Khan Page no. 8 of 12 contrary plaintiff has filed on record the electricity bill in the name of his daughter to show his possession over the property. In such circumstances, no evidence was required to be produced by either of the party in order to establish the possession of the actual portion of the property as the plaintiff categorically claimed that defendant was in possession of the suit property consisting of two rooms at first floor and in reply to the plaint defendant referred his possession over the suit property only not the entire property. Hence, this contention of the defendant also lacks substance and deserves to be rejected.
13. Now coming to the further aspect whereby defendant has sought the exception provided in section 4(3)(b) of the Benami Transaction (Prohibition) Act, 1988 on the ground that plaintiff was his close relative and the property was registered in the name of the plaintiff being in fiduciary capacity. It is argued by Ld. Counsel for the defendant that the Ld. Trial Court has erred in holding that the present transaction has been hit by section 4 of the aforesaid Act.
Section 2(9) of the Benami Transaction (Prohibition) Act, 1988 says that a benami transaction means a transaction, where a property is transferred to, or is held by, a person and the consideration for such property has been provided, or paid by another person.
Section 4 of the Benami Transaction (Prohibition) Act, 1988 provides that no defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be real owner of such property.
Section 4(3)(b) of the Benami Transaction (Prohibition) Act, 1988 says that where the person in whose name the property is held is a trustee or other person standing in fiduciary capacity and the property is held for the RCA SCJ no. 7/19 Karimuddin v. Chunnu Khan Page no. 9 of 12 benefit of another person for whom he is a trustee or towards whom he stands in such capacity.
14. At the outset, it is relevant to note that the defendant has nowhere pleaded that he registered the property in the name of the plaintiff asserting him to be his trustee. Mere claiming that plaintiff being the brother-in-law of defendant, the property was registered in his name does not fall within the scope of section 4(3)(b) of the Benami Act. Natural relationships no doubt have an element of trust, however, this natural element of trust on account of natural relationship is not what is subject matter of section 4(3)
(b) of the Benami Transaction (Prohibition) Act, 1988 because this sub section specifically requires an averment/pleading with respect to property being purchased as a trustee. Since, the defence of the defendant does not fall within the exception, the defence will be barred by law as per section 4(2) of the Benami Transaction (Prohibition) Act, 1988. Once the defence is barred by law there is no need to go into trial on this aspect because there cannot be a trial with respect to a plea / pleading which the law bars for being taken up. The aforesaid position of law has been held by the Hon'ble High Court of Delhi in case titled as Baljeet Kaur Kalra v. Surjeet Singh (Deceased) through his legal heirs and ors, 2016(2) CLJ 459 Del. In view of the discussion above and the settled position of law laid down in aforementioned judgment, the argument of defendant is considered to be without any force, thus stands discarded.
15. Lastly, it has been contended by the Ld. Counsel for the defendant that there were triable issues involved in the present matter therefore it was not appropriate at the part of Ld. Trial Court to decide the matter summarily by invoking the provision order XII rule 6 CPC and the matter should have RCA SCJ no. 7/19 Karimuddin v. Chunnu Khan Page no. 10 of 12 been proceeded and the evidence should have been allowed to be recorded by the parties to prove their pleas.
Here I would rely upon judgment passed by Hon'ble Supreme Court of India in case titled as Anar Devi Vs. Nathu Ram (1994) 4 Supreme Court cases 250 and judgments passed by Hon'ble Delhi High Court in case titled as Assocham Vs. Y. N. Bargava dated 13.07.2011 and Harbhajan Singh Vs. Mahinder Singh @ Micy dated 17.01.2014 whereby it has been held that order XII Rule 6 CPC is enacted for the purpose of and in order to expedite the trials if there is any admission on behalf of the defendants or an admission can be inferred from facts and circumstances of the case then in such case in order to expedite and dispose of the matter such admission can be acted upon.
In the instant case there are categorical admissions made by the defendant in respect of ownership of the suit property and there are admissions that have been inferred from the facts and circumstances of the case as discussed in preceding paragraphs with respect to service of legal notice, relationship of parties as that of licensor and licensee, so in view of the same, this court is of the opinion that the Ld. Trial Court has rightly invoked the provision Order XII Rule 6 CPC and has passed the part decree in favour of the plaintiff. The Ld. Trial court has judiciously exercised its discretion and has passed the impugned order which does not warrant any intervention by this court.
CONCLUSION
16. In view of the discussion above, this court is well in agreement with the findings of the Ld. Trial Court on the afore mentioned aspects and no perversity or illegality have been found in the impugned order. In view of the foregoing discussions, all the grounds of appeal stands decided against RCA SCJ no. 7/19 Karimuddin v. Chunnu Khan Page no. 11 of 12 the appellant, accordingly appeal is decided in favour of the respondent and against the appellant.
RELIEF
17. In the light of above facts and observations, this court holds the view that there is no reason to interfere with the findings of the Ld. Trial Court. Hence, the impugned judgment & decree of the Ld. Trial Court dated 20.10.2016 is upheld. The appeal is accordingly dismissed. The interim order passed in the appeal, if any, stands vacated. The parties are left to bear the costs of the appeal.
18. Decree sheet be drawn accordingly.
19. One copy of this order be sent to the Ld. Trial Court in view of Order 41 Rule 11(3) Code of Civil Procedure, 1908.
20. The appeal file be consigned to Record Room after due compliance. Digitally signed by VISHAL VISHAL PAHUJA PAHUJA Date:
2021.02.10 16:59:31 +0530 ANNOUNCED IN THE (VISHAL PAHUJA) OPEN COURT ON 10.02.2021 SCJ-cum-RC North East District, KKD/DELHI Containing 12 pages all signed by the presiding officer.Digitally signed by VISHAL
VISHAL PAHUJA
PAHUJA Date:
2021.02.10
16:59:38 +0530
(VISHAL PAHUJA)
SCJ-cum-RC
North East District,
KKD/Delhi
RCA SCJ no. 7/19
Karimuddin v. Chunnu Khan Page no. 12 of 12