Bhagwana vs Radhey Shyam
1995 Latest Caselaw 803 Del

JUDGMENT

C.M. Nayar, J.

(1) C.M.NO. 593/85 Heard. The delay in filing the application under Order 22 Rule 3 read with Section 151 Civil Procedure Code . is condoned. C.M. stands disposed of.

(2) C.M.NO.592/85 The present application is moved under Order 22 Rule 3 read with Section 151 Civil Procedure Code . for bringing on record the legal heirs of Shri Bhagwana, appellant herein, who died on September 5, 1984. The application is moved by his sons who are the legal heirs.

(3) Heard learned counsel for the parties. The application is allowed. The legal heirs are brought on record. C.M. stands disposed of.

(4) C.M.NO.673/85 This is an application under Order 22 Rules 2, 9 and 11 of the Code of Civil Procedure for setting aside the abatement as a result of the death of the appellant. The legal heirs of the appellant are already brought on record. This application is, accordingly, allowed.

(5) R.S.A No.222/82 The present appeal is directed against the judgment of the trial Court dated April 16, 1981 and of the First Appellate Court dated September 6, 1982 respectively.

(6) The brief facts are that the respondent/plaintiff is the owner of Gher(Enclosure) bearing Municipal No. 1581, Pana Mamurpur, Narela, Delhi. The respondent filed a suit against the appellant/defendant for recovery of possession of the said plot and mesne profits in respect of this enclosure on the averments that the appellant and his son Shri Mahavir had unlawfully and without the consent of the respondent had taken possession of the said Gher in the year 1971. The appellant/defendant contested that suit and took the plea that he was a tenant of the respondent/plaintiff in the said

(7) Gher as the same was let out to him at the rate of Rs.2.00 per month and thereafter he had constructed two rooms on the roof of corrugated sheets at his own costs; that Mrs. Kanwal Inder, the then Sub Judge, 1st Class, Delhi, on July 30, 1977 dismissed the suit as far as the relief of recovery of possession was concerned but after holding the appellant as a tenant decreed the suit for recovery of Rs.14.00 as arrears of rent for seven months. The appeal against the Order of the Sub- Judge was dismissed by Shri N.C.Kochhar, Additional District Judge, Delhi on April 20, 1978. Thereafter, the respondent/plaintiff terminated the tenancy of the appellant/defendant in accordance with the provisions of Section 106 of the Transfer of Property Act and required the appellant/defendant to vacate the said Gher on May 31, 1979. The appellant did not vacate the Gher and, therefore, respondent instituted a suit from which the present proceedings have arisen for possession of the Gher and for recovery of Rs.66.00 as arrears of rent and Rs. 20.00 as mesne profits. The appellant resisted the suit on various pleas, and in particular,it was pleaded that the suit was barred by principles of res judicata.It was also pleaded that the civil court had no jurisdiction to try the suit as it was barred by Section 50 of the Delhi Rent Control Act, 1958.

(8) The following issues were framed on the pleadings of the parties:

1. Whetherthe tenancy of the defendant (appellant herein) has been validly terminated? OPP

2.WHETHERthis court has no jurisdiction to try the present suit, as alleged in para 1 of the preliminary objections of the written statement? OPD

3.WHETHERthe plaintiff (respondent herein) is entitled to the reliefs prayed? OPP

4.WHETHERthe suit is barred by principles of res judicata and estoppel, as alleged in the writ ten statement?

(9) The learned sub judge vide order dated April 16, 1981 decided all the issues in favor of the respondent and against the appellant and as a result decreed the suit of the respondent for recovery of possession of Gher and also for recovery of Rs.70.00 as damages/rent with proportionate costs. The appellant Bhagwana filed an appeal in the court of Additional District Judge, Delhi. The only point, which was urged before that court was that the earlier suit of the respondent filed in the court of Mrs. Kanwal Inder for ejectment of defendant was dismissed and the appeal against that judgment was also dismissed on the ground that civil court had no jurisdiction to try the suit. Therefore, the present suit from which this appeal has arisen is barred by the principles of res judicata and the civil court does not have any jurisdiction to try the suit. There is no dispute that the earlier suit filed by the respondent was for possession of the Gher on the ground that the appellant and his son were trespassers and the suit was dismissed by holding that the appellant was a tenant and not a trespasser and the appeal filed was also dismissed by the Court of Additional District Judge.

(10) The Trial Court as well as the First Appellate Court considered the plea of res judicata and held that the Sub-Judge in the earlier suit did not give any finding that the property in dispute was `building' and thus was a `premises' within the meaning of Delhi Rent Control Act nor any such finding was called for because the perusal of the plaint indicated in para 1 that the respondent had alleged that he was the owner of an enclosure (Gher). There was also no dispute that the property in dispute was Gher as it was even admitted by the appellant/defendant that it was a Gher. It was further noticed that there was an admission by the appellant in the written statement filed in the earlier suit wherein he had admitted that what was let out to him and what was in his occupation was a Gher and a Gher does not come within the definition of "premises" as it does not have any roof and has got boundary walls only nor the appellant was able to prove that this admission made by him in the written statement in the earlier suit was wrong. Consequently, it was affirmed that on the basis of admission of the appellant himself it was proved that what was let out to the appellant was a Gher and not premises and in the written statement filed in the present suit, the appellant shifted his stand in order to defeat the claim of the respondent. The Trial court as well as the First Appellate Court in the facts of the present case, therefore, held that there was no manner of doubt that the appellant was let out a Gher i.e. plot of land and he had constructed the room on it later on and the construction of room did not bring it within the definition of the premises and did not oust the jurisdiction of the civil court to try such a suit. The civil court had jurisdiction to try a suit for ejectment of a tenant from a plot because it did not fall within the definition of the word "premises" as defined by Delhi Rent Control Act, 1958, which is a bar to the jurisdiction of the civil court. The courts have correctly applied the decision of the Supreme Court as reported in Mathura Prasad Bajoo Jaiswal & others v. Dossibai N.B.Jeejeebhoy wherein it is categorically held that `a question relating to the jurisdiction of a court cannot be deemed to have been finally determined by an erroneous decision of the court. If by an erroneous interpretation of the statute the court holds that it has no jurisdiction the decision will not operate as resjudicata'. It was further held that `similarly by an erroneous decision if the court assumes jurisdiction which it does not possess under the statute, the decision will not operate as res judicata between the same parties whether the cause of action in the subsequent litigation is the same or otherwise'. There is no finding in the first suit that the premises let out to the appellant were covered by the definition of `premises' as contemplated under the provisions of Delhi Rent Control Act. The judgment in the earlier suit, accordingly, cannot be held to operate as res judicata and the present suit from which this appeal has arisen is not barred.

(11) For the aforesaid reasons, there is no error of jurisdiction and law in the impugned judgments of the Trial Court as well as of the First Appellate Court which require to be corrected in the present second appeal. The conclusions are based on appreciation of evidence and no question of law arises for consideration in this appeal. The same is, accordingly, dismissed. The appellant is, however, granted three months time to vacate the suit property. There will be no order as to costs.