High Court of Delhi was dealing with petition arises out of judgment dated 3rd December, 2021 passed by Appellate Court which the appeal filed by the Appellant herein has been dismissed.
Brief Facts:
The Respondent No.1 who is the Petitioner in the eviction petition, sought eviction of the Respondent No.2, the original Tenant from the ‘L’ shape premises in the suit property. The said eviction petition was dismissed by the ld. Rent Controller, Delhi. The same was appealed to the RCT and the appeal was allowed under section 14(1)(b) of the Delhi Rent Control Act, 1958 and the eviction order was passed against the Tenant. Then the RCT’s order was challenged before the Court. In the meantime, the shop with dimension of 7 ft 6 inches x 20 ft was sold by the Respondent to one Smt. Sunita Devi. Thereafter, vide another sale transaction the said Smt. Sunita Devi sold the said shop bearing no.4559 to the Appellant, who also happened to be the wife of the Tenant. The dispute continued to escalate between the parties.
An execution petition was filed by the Respondent seeking possession of the tenanted portion. The said proceedings culminated by which the objections filed by Appellant were dismissed by the Executing Court. This order was affirmed by the Appellate Court vide the judgment dated 3rd December, 2021. The present second appeal arises out of these proceedings. The sole contention between the parties is the green wall identifiable form the site map attached to the sale deed executed by Maman Chand in favour of Smt. Sunita Devi, which separates the “L” shaped property of the Respondent from the shop of the Appellant which she had bought from Smt. Sunita Devi.
Appellant’s Contention:
The counsel for the appellant submitted that the green wall identifiable in the site plan attached to the sale deed was always identified as the portion supporting the Appellant’s shop. She submitted that the Appellant purchased not just the ground floor shop but also the first floor above the shop. Thus, the wall supporting the first floor and the shop ought not to be permitted to be broken down.
Respondent’s Contention:
Learned Counsel for the respondent submitted that the Appellant is guilty of having encroached upon the wall area and the rear portion, taking advantage of the fact that her husband was a tenant in the property. The eviction decree has to be given its full effect and except the shop the entire remaining portion should be handed over to the Respondent. He submitted that the litigation has had a long and chequered history, leading to the eviction decree and thereafter, the execution proceedings which are under challenge before the Court.
HC’s Observations:
After hearing both the sides Court stated that the position that emerges is that the Appellant is entitled to her shop with dimension 7 ft 6-inch x 20 ft. The Appellant cannot be entitled to anything more than the said premises. It is also not in doubt that she also purchased the first floor of the property, hence, the staircase access to the first floor is also to be given to the Appellant. Court found that the root cause of the problem is that the order of the RCT does not identify the area over which the decree has been passed in favour of the Respondent.
The Supreme Court has repeatedly observed that whenever a possession decree or eviction decree are passed, the Court ought to exactly identify the property in question along with the complete description etc., in order to avoid long drawn litigation.
The Court found that the Tenant is bound to hand over the tenanted portion to the Respondent. The Appellant is only entitled to retain the shop on the ground floor and the first floor, as per the plan attached to the sale deed. Court stated that the appellant would only be entitled to the shop measuring 7 ft 6 inch x 20 ft along with the access to the first floor through the staircase, which will be 3 ft wide. Beyond the said premises, the entire ground floor of the suit property shall be handed over to the Respondent.
HC Held:
After evaluating various submissions made by both the parties Court held that “The possession of the entire premises, except the shop with the dimension mentioned at the sketch as also the first floor of the property which belongs to the Appellant, shall be handed over by the Local Commissioner to the Respondent. If the Local Commissioner is confronted with any situation at the time of handing over, the Local Commissioner is free to exercise his discretion. This Court does not find any substantial questions of law that arise in this appeal as the entire dispute between the parties is factual in nature. Accordingly, the present execution second appeal is disposed of.”
Bench: Justice Prathiba M. Singh
Case Title: Sunita Goel v. Maman Chand & Anr.
Case Details: EX.S.A. 1/2021, CMAPPLs. 46086/2021 & 46089/2021
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