Smt. Khema, Ms. Pinki And Ms. Chavi vs Sheikh Mohd. Aarif, Sheikh Mohd. ...
2007 Latest Caselaw 138 Del

JUDGMENT

J.M. Malik, J.

1. The burning point of discussion in this second appeal is, 'whether the appellants are the tenants in the property in dispute', a plea raised by them which found no favor with two Courts below. Sheikh Mohd. Aarif, Sheikh Mohd. Adil, respondents 1 and 2 filed a suit for possession, permanent injunction and recovery for mesne profit against the appellants. Shrifudin and Prem Singh (Now respondents 3 and 4 respectively), who are stated to be their co-owners, were arrayed as defendants 4 and 5 in the original suit. Learned Civil Judge vide order dated 20.04.2004 decreed the suit for possession of one room on the ground floor of house No. 491 that is one-fourth being part of property No. 491-494, Tokriwala, Jama Masjid, Delhi. He also decreed the suit in the sum of Rs. 3600/- and ordered that future mesne profit @ 100/- per month from the date of institution of the suit till the date of delivery of possession along with interest @ 4% be paid by the appellants to the respondents. The order further restrained the appellants from handing over the possession of the room in question to any person except the respondents. The first Appellate Court dismissed the appeal as well as cross-objections.

2. After having subjected the evidence to a closet scrutiny and after having heard the counsel for the parties, I am of the considered view that this case requires further evidence, investigation and probe. It is too early to speak my piece on the contentious issues involved herewith. Some important documents have not yet seen the light of the day. For the reasons listed below, the case is remanded before the Trial Judge for reconsideration as per directions.

3. Firstly, the appellants had moved an application dated 26th November, 2001 where following averments were made. Mother of Smt. Parwati, appellant No. 1 was the tenant and started paying rent to Hazi Gulam Mehboob. After her death, appellant No. 1 started paying rent to Hazi Gulam Mehboob, who, disappeared out of blue and did not appear to take rent. The rent receipts issued by Hazi Gulam Mehboob have been placed on the record and were duly marked in evidence. Appellants received property tax bill dated 30.8.2001 issued by M.C.D., City Zone, 53, Jawahar Lal Nehru Marg, New Delhi, for property tax arrears in the sum of Rs. 11,587/-, which was issued in the name of Hazi Gulam Mehboob. It was prayed that the concerned clerk of M.C.D., City Zone be summoned as defense witness along with records of the suit property and the above said property tax bill, in order to enable the appellants to prove that the suit property remained in the name of Hazi Gulam Mehboob. Learned Trial Court dismissed the said application vide its order dated 15.04.2002 on the grounds that the name of Hazi Gulam Mehboob finds no place in the written statement, the appellants did not mention that Hazi Gulam Mehboob was the owner of suit property in question at any time, the appellants did not file the list of witnesses, the above said matter is not covered within the issues framed and the appellants could not be allowed to fill up the lacunas at this belated stage. The first Appellate Court while dealing with this issue came to the conclusion that the order dated 15.4.2002 passed by the learned Trial Court was not challenged before the superior court. Consequently, it has attained finality.

4. This does not appear to be the correct view. In C.V. Rajendran v. N. M. Muhammed Kunhi 2002(2) RCR 453 (SC), it was held :

Mr. P.P. Rao, learned senior Counsel appearing for the appellants, contends that the order passed by the Appellate Authority holding that the eviction petition was maintainable and that Section z of the Act was not a bar, does not operate as res judicata. In support of his contention, the learned senior Counsel relies upon a judgment of this Court in Satyadhyan Ghosal and Ors. v. Smt. Deorajin Debi and Anr. 1860(3) SCR 590. We have perused that judgment. It is laid down therein that an interlocutory order which did not terminate the proceedings and which had not been appealed against either because no appeal lay or even though an appeal lay, an appeal was not taken, could be challenged in an appeal from the final decree or order. It was observed that interlocutory judgments which have the force of a decree must be distinguished from other interlocutory judgments which are a step towards the decision of the dispute between the parties by way of a decree or a final order. In that case, the question of applicability of Section 28 of the original Thika Tenancy Act, 1949 was held to be interlocutory in nature, falling in the latter category.

5. In another case reported in Chandrabai Manguest Arambolkar and Ors. v. Smt. Rukmin toraskar and Ors. JT 1998 (4) SC 459, it was held :

Suffice it to state, that the reason given by the learned Judicial Commissioner seems to be erroneous and cannot be sustained. The parties can challenge the validity of an interlocutory order in an appeal against the final decree unless such an order was appealable. Not filing a revision against such order is no ground to ignore the illegality vitiating the disposal of the suit.

6. The municipal record would have gone a long way to throw light on this knotty problem and it would have been easy for the Court to winnow truth from falsehood. It must be borne in mind that House Tax Bill has presumptive value, as was held in Major Homi Rustomji Daruwala v. Pesi Sorabji Doodha and Anr. 1995 Supp (2) SCC 584 and Mohanlal Shamji Soni v. Union of India and Anr. .

7. Now, let us have a glimpse over the written statement of the defendants/appellants. The last portion of para 7 of the written statement is reproduced as hereunder :

Defts. No. 1's grand mother was a lawful occupant in possession of the premises as a tenant having come to the premises about 70 years back. On her death defendant No. 1's mother Smt. Parwati became the tenant and continued to live here. Smt. Parwati died about 20 years back. Defendant No. 1 has been residing in the premises since her birth. She got married here and started living with her husband. Her children were born here. This defendant has been occupying the premises since the time of her mother and has continued to occupy the same after her death also as a tenant.

The written statement was filed on 09.11.1993. The rent receipts were placed on the record on 12.03.1997. The said rent receipts pertain to the years 1961, 1969 and 1974. It is not necessary that the landlord must be the owner of the case property.

8. Secondly, this is pertinent to note that Sheikh Mohd. Adil appeared as PW1. His statement was recorded on 12.03.1997. In his cross- examination conducted by defendants No. 1, 2 and 3, he stated that they had also purchased 15% of the evacuee share from Gulam Nizamuddin and Sofia Khatoon. The appellants have placed on record a number of rent receipts on the record which go to establish relationship of landlord and tenant between Gulam Nizamuddin and Parvati. As per rent receipts, the recipient was Gulam Nizamuddin Bakaram Khud and property was owned and possessed by Musalman Naikan Nisa, Heir of Haji Mehboob Illahi Sahib. At least one of these rent receipts is a thirty year old document. This is per-se admissible in evidence. It is for the respondents and nobody else to carry the ball in proving that this rent receipt is false and fabricated. Section 90 of the Indian Evidence Act, 1872 is reproduced as under :

Presumption as to documents thirty years old.- Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.? ?Explanation.- Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.

In view of these rent receipts, it was necessary that the M.C.D. record should have been produced in order to know the truth.

9. Another matter which requires consideration is that list of unauthorized occupants was prepared by the Competent Officer. The same was proved on record as Ex.PW1/3. It pertains to 18.05.1990. It is notable that the name of the appellants did not appear therein. It, therefore, clearly goes to show that appellants were not shown as unauthorized occupants by the competent Court.

10. The learned Additional District Judge also opined that the judgment passed by this Court in Civil Writ Petition No. 3475/1991 decided on 31.08.2004 goes to dampen the case of the appellants, because the challenge put forward by one Raissuddin against the said ownership rights against the respondents had come to an end. It was further observed that even the aforesaid property tax bill from which the assistance is being sought to be taken by the present appellants has no meaning in view of the above said judgment. Again, sale deed Ex.PW1/B also reveals that the respondents had purchased property from Gulam Fariduddin and Prem Singh etc. It was further observed that in view of this sale deed, the plea of appellants that they are tenants of Gulam Mohd. does not hold water.

11. I have also perused the certified copy of the order of above said writ petition. Paras 2 and 3 of the order of the said writ petition are reproduced as hereunder :

2. Admittedly, said property is a composite property. Declared evacuee share is 87/136. Remaining 49/136 is non-evacuee share. Respondent No. 4, Gulam Fariduddin and one Nizamuddin and Ikram Ilahi each held 14/136 non- evacuee share. One Smt. Sofia Khatoon held 7/136 non-evacuee share. In other words, 49/136 non-evacuee share was held amongst the said four persons. This share of evacuee and non-evacuee as well as inter-se non-evacuee was adjudicated by the Competent Officer on 29.08.1968.

3. Respondents 5 to 7 purchased the non-evacuee share from Ikram Ilahi, Gulam Fariduddin and Sofia Khatoon respectively. This purchase was by respondent No. 5 on 27.08.1970, by respondent No. 6 on 03.08.1982 and by respondent No. 7 on 23.05.1983.

12. The judgment passed by this Court and sale deed Ex.PW1/B decide the case of ownership and not that of tenancy. However, there is confusion about the name of Gulam Nizamuddin as stated by Sheikh Mohd. Akil PW1, Gulam Fariduddin and one Nizamuddin as per judgment in Civil Writ Petition No. 3475/1991, Hazi Gulam Mehboob, who allegedly issued the rent receipts. The Trial Court would seek clarification about the same.

13. Under these circumstances, I set aside the orders passed by both the Courts below and remand the case before the learned Trial Judge with the directions that the application dated 26.11.2001 moved by the appellants stands permitted. Record clerk be summoned along with the entire record as prayed by the appellants. The appellants can also adduce evidence in respect of another co-owner Fariduddin whose letter was placed during the pendency of this appeal stating that he had no objection of appellants continuing as their tenants. The appellants be given dusty summons for summoning their evidence. More than two opportunities may not be given. The respondents be also given opportunity to rebut the evidence of appellants.

14. The Trial Court record and record of the first Appellate Court along with copy of this order be sent back forthwith. Parties are directed to appear before the trial court on 15.02.2007.

The appeal stands disposed of.

CM No. 2236/2005 in RSA No. 44/2005

In view of the disposal of the appeal, no further orders are required to be passed in the application. The same is disposed of.