All India Tibbi Conference And ... vs Haji Mohd. Shafi
2004 Latest Caselaw 467 Del

JUDGMENT

Vijender Jain, J.

1. This is a first regular appeal arising out of the judgment and decree passed by the trial court on 31.10.1980. Respondent filed the suit for recovery of possession of the first floor and second floor of the demised premises and damages for use and occupation. It was the case of the respondents that they were the owner of the property bearing No.2070-71 and 2077 situated at Ahata Kaley Sahib, Gali Qasimjan, Delhi. The case set out in the plaint by the respondent was that Hakim Mohd. Ilyas Khan was a tenant of the first and second floors of the suit property under Mst.Zohra Bi, a previous owner of the property at the rate of 110/- p.m. Hakim Mohd Ilyas Khan died on 26.2.1963. It was averred in the plaint that during his life time Hakim Mohd. Ilyas Khan inducted the appellants in the first floor portion of the premises and parted with its possession without the consent or permission of the owner. It was further averred in the plaint that the defendants tresspassed into and occupied the second floor portion after the death of Hakim Mohd. Ilyas Khan. The plaintiff's case in the plaint was that the defendants were in occupation of first and second floors of the property without any right or title to it. The suit property was purchased by the respondent in 1969 and the present suit was filed on 8.6.1972. Appellants No.1 and 2 filed the written statement inter alia raising same defense in their respective written statements. Paragraph No.2 of the written statement is relevant to decide the controversy. The same is reproduced below:-

Para 2 of the plaint is denied being incorrect. Hakim Mohd. Ilyas son of Shri Ahmed Ali Khan was a patron and founder of "All India Unani tibbi Conference" defendant No.1. The suit premises were taken on rent for and on behalf of the said public institution as tenant from Mst. Zohra Bi wife of Sheikh Haji Mohd Ismyel daughter of Sheikh Abdul Wahab. Defendant No.1 has been in occupation of the suit premises as tenant and has been using the same for holding meetings and for furtherence of its activities. The rent @ Rs.110/- has also been paid throughout by the defendant No.1 to Mst. Zohra Bi. Sometimes in cash and sometimes by cheques. It was to the knowledge of Mst. Zohra Bi that Hakim Mohd. Ilyas had no right, interest in the tenancy rights of the suit premises. Para 2 however, is vague and incomplete. The necessary particulars required by law to be given have not been stated in this para. It does not disclose as to when Shri Mohd Ilyas occupied which portion of the suit property. The defendant all the same has been in possession of the entire suit property for over twelve years from the date of the suit. If the learned court comes to the conclusion that defendant No.1 has not been a tenant of the property than defendant No.1's possession has been open and hostile to the plaintiff and/or his predecessors in title. The suit is barred by time and defendant No.1 has become the owner thereof by prescription.

Again in paragraph No.3 of the written statement the plea taken by the appellants was that the appellant No.1 has been in occupation of the property in suit as tenant. He also took the plea that in view of the bar of Section 50 of the Delhi Rent Control Act, the jurisdiction of the civil court is barred and the respondent must go to the Rent Controller under the provisions of Delhi Rent Control Act. From the pleadings of the parties, the trial court framed the following issues.

1.What is the market value of the suit property and whether the suit is valued correctly for purposes of court fee and jurisdiction? OPP.

2.Whether suit is not maintainable? Whether this court has no jurisdiction to try this suit? OPD.

3.Whether the plaintiff is owner of the sit property? OPP.

4.Whether the defendant No.1 is tenant of the suit property, if so since when, on what terms, and with what effect? OPD.

5.Whether the defendant No.1 has become owner of the suit property by adverse possession? OPD.

6.Whether the plaintiff is entitled to any damages? If so its amount? OPP.

7.Whether the suit is bad for misjoinder of defendant No.1.? OPP.

8.Whether the plaintiff is entitled to any relief? OPD.

2. Mr.Makhija, learned senior counsel appearing for the appellants has very fairly conceded that with regard to the decree of possession in relation to second floor he is not advancing any arguments and he is not disputing the finding of the trial court. Mr. Makhija has contended that the main grievance in the appeal is with regard to the decision on issue No.2 by the trial court. Mr.Makhija confined his arguments on the finding of the aforesaid issue returned by the trial court. Learned counsel for the appellant has contended that the suit was barred pursuant to the provisions of Section 50 of the Delhi Rent Control Act and the proper remedy for the respondent was to file an eviction petition under the provisions of Section 14(1)(b) of the Delhi Rent Control Act. Section 14(1)(b) of the Delhi Rent Control Act is to the following effect:-

"that the tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord;"

3. Mr.Makhija has contended that legislature in its wisdom incorporated in the grounds of eviction subletting as a ground for and the exercise of jurisdiction by the trial court was improper and contrary to the provisions of Section 50 of the Act. The next contention of the learned counsel for the appellants was that pursuant to Section 108 of the Transfer of Property Act, on the determination of the lease the lessee is bound to put the Lesser into possession of the property. He placed reliance on Section 108(q) of the Transfer of Property Act. It was contended by learned counsel for the appellants that as a sub-tenant the appellant was bound to give possession to the tenant that is the Lesser of the sub-tenant and on this ground also he contended that the finding of the trial court was incorrect in law. Mr.Makhija has also placed reliance on Rent Law Reporter Vol. 1 2002, 520 paragraph No.12.

4. On the other hand, Mr.Suresh Gupta, learned counsel appearing for the respondent, has contended that the plea of sub-tenancy was never taken in the written statement by the appellants. Mr.Gupta contended that the stand in the written statement was two fold. The appellants have taken stand that they were tenant under the respondent in their own right, in the alternative they have taken the plea that their occupation is protected on account of adverse possession as they have been in occupation of the property more than 12 years. Learned counsel appearing for the respondent has contended that nowhere in the plaint it was mentioned by the respondent that the appellants were sub-tenant, therefore, the trial court has rightly adjudicated upon the matter and on the basis of the evidence produced, returned the finding and decreed the suit for possession.

5. Our attention was drawn to the plea taken in the plaint whereas it has been specifically mentioned in paragraph No.3 of the plaint that the defendant has no right title or interest in the property. Even in the replication in paragraph Nos.3 and 4 respondent has taken the plea that the appellants were tress passers. Paragraphs No.3 and 4 of the replication is reproduced as under:-

Para No.3 of the preliminary objections is denied. It is denied that defendant No.1 has been in occupation of the suit property as tenant of Mst. Zohra Bi or her predecessor-in-interest as alleged. The defendants are tresspassers.

Para No.4 of the preliminary objections is denied. It is denied that the defendant No.1 is in adverse possession of the suit property or that the suit is barred by time, as alleged. The defendant No.1 has taken the pleas of tenancy and of adverse possession simultaneously which are totally inconsistent and mutually destructive of each other.

Mr.Gupta, learned counsel for the respondent, has also relied upon a Division Bench judgment of this court in support of his arguments, 1990 RLR (DB) 95. Mr.Gupta contended that in this case civil court has jurisdiction to pass a decree for possession on the basis of the pleadings of the parties.

We have given our careful consideration to the arguments advanced by learned counsel for both the parties. The issue, findings of which has been impugned before us is issue No.2-Whether suit is not maintainable as the court has no jurisdiction to try the suit in view of Section 50 of the Delhi Rent Control Act.

From the careful perusal of the pleadings of the parties, nowhere we found that the respondent had used the expression sub-tenant with regard to the status of the appellants. In his ingenuienty Mr.Makhija wanted to persuade us to infer from paragraph No.2 of the plaint that the status of the appellants was of sub-tenant. Paragraph No.2 of the plaint reproduced as under:-

That Hakim Mohd. Ilyas Khan was a statutory tenant of the first and second floors of the said property under Mst. Zohra Bi, a previous owner of the property at the rate of rent of Rs.110/- p.m.. Hakim Mohd. Ilyas Khan died on 26th February, 1963. The said tenant during his life time had inducted the defendants in the first floor portion of the premises and parted with its possession with them without the consent or permission of the owner. The defendants tresspassed into any occupied the second floor portion after the death of Hakim Mohd. Ilyas.

By no stretch of imagination it can be said that the respondent has taken plea on the basis of averments made in paragraph No.2 of the plaint that the appellant was sub-tenant. The respondent has given in the aforesaid paragraph the history of previous tenant and how the appellants came into possession which according to them was totally hostile and without their consent or permission. In paragraph No.3 of the plaint the respondent has specifically pleaded that the defendants were in occupation of the suit premises without any right or title to it.

We can't persuade ourselves with the arguments of learned counsel for the appellants that the respondent ought to have filed a suit under the provisions of Section 14(1)(b) of the Delhi Rent Control Act. Even in the written statement which was filed by the appellant which we have reproduced above, in the forgoing paragraphs the plea of the appellants that they were the tenant in their own right under the respondent and in the alternative the plea of the appellants was that in case the court comes to conclusion that appellants were not tenant of the property than appellants possession has been open and hostile to the respondent and/or his predecessor in title. They went to the extent of pleadings in the written statement that the suit was barred by time and the appellants had become owner thereof by prescription. In the absence of any specific defense taken by the respondent that they were sub-tenant, we find no merit in the arguments advanced by learned counsel for the appellants now at this stage that they must be treated as sub-tenant and, therefore, the provisions of Section 14(1)(b) would be applicable.

As a matter of fact, the ground as mentioned in Section 14(1)(b) of Delhi Rent Control Act is a ground for eviction of tenant who has sub-let, assigned or parted with the possession after 9.6.1952 without the written permission of the landlord. How that provision will come to the aid of the appellants? The interpretation of the Section will be that earlier tenant Hakim Mohd. Ilyas Khan who had subletted the premises could be evicted under the provision of Section 14(1)(b). Said Section cannot be invoked against appellants as appellants are not the tenants of the respondents. The authority cited by learned counsel for the appellants is also of no help to his case. Reliance placed by learned counsel for the appellants on Section 108 of Transfer of Property Act is also misplaced as the appellants are neither the lessee nor they were permitted to be in occupation of the suit premises. Section 108(q) is meant for the Lesser and lessee whose title as such is not in dispute. Here is the case where the appellants were alleged to be the tresspassers without any right and title in the property, therefore, sub-Section (q) of 108 of Transfer of property Act will not come to the aid of appellants.

Pursuant to the order passed by this court, certain amount on account of damages has been deposited by the appellants, the same may be released in favor of respondents. We grant two months time to the appellants to vacate the premises.

Keeping in view of the fact that the rent was fixed in the year 1953 and the appellants are in possession of the entire first and second floors, if the premises is not vacated within two months the appellants shall pay damages at the rate of Rs.600/- p.m.for the first floor and Rs.600/- for the second floor.

Appeal is dismissed with costs throughout.