Delhi High Court

Mohd.Aslam & Ors. vs Mohd.Ajmal & Ors. on 16 April, 2009

Author: Manmohan

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+     RC.REV. 101/2008 & CM Nos. 17039-17040/2008

                                   Reserved on : 6th April, 2008

%                                 Date of Decision : 16th April,2009

MOHD.ASLAM & ORS.                               ..... Petitioners
                           Through              Mr. J.K. Jain, Advocate

                    versus

MOHD.AJMAL & ORS.                               ..... Respondents
                           Through              Mr. Jabbar Hussain,
                                                Advocate for respondent
                                                no. 1

CORAM:
HON'BLE MR. JUSTICE MANMOHAN

1. Whether the Reporters of local papers may be allowed to see the judgment? No
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes



                             JUDGMENT

MANMOHAN, J

1. Present Revision Petition has been filed against order dated

18th July, 2008 by virtue of which petitioners/tenants‟ leave to

defend application has been dismissed.

2. Mr. J.K. Jain, learned Counsel for petitioners submitted that

Additional Rent Controller (in short „ARC‟) had not considered the

effect and impact of Muslim Personal Law in the present case, as

here a Muslim landlord/ owner died leaving behind two sons and

four daughters. According to Mr. Jain, the principle that one co-

owner can file and maintain an independent eviction petition

without impleading the other co-owners, applies to Hindus and

not to Muslims. He submitted that after death of a Muslim

owner/landlord all his legal heirs become owners in common and

not co-owners as in Hindus. According to him, all heirs are

necessary to be impleaded in eviction petition and as respondent

no. 1/landlord failed to do so, eviction petition was liable to be

dismissed. In this context, Mr. Jain referred to and relied upon a

judgment in the case of Mt. Fardosjahan Begum w/o Syed Alay

Rasul and others Vs. Kazi Shafiddin s/o Kazi Shujatali

Musalman and others reported in AIR (29) 1942 Nagpur 75

wherein it has been held as under :-

"The legal position as regards Mohammedans is prima facie that when the owner dies leaving a number of heirs those heirs take the estate as tenants-in-common. They have each a separate right and at any moment any one can demand administration of the estate so as to demarcate the property that falls to that one‟s share. But until that is done they hold, not as joint tenants as will be the case were they Hindus which joint tenancy is broken up by partition, but as tenants-in-common which co- tenancy is broken up by severance of the shares normally done by means of administration or by partition. Administration is normally the better course because then all questions of indebtedness of the deceased, priority of claims and so forth can be properly adjusted. However, no such point here really arises. What we are concerned with is whether the appellants have, as a consequence of the operation of law relating to ouster, lost the title which they have prima facie established. In our opinion, a Mohammedan prima facie establishes title when he shows that the estate in question was in A, that he is in the line of heirs from A and nearer heirs are dead and that there has been no administration which starts a new line of descent not from A but from (say) X, in which case he will then have to establish that he is in the line of heirs from X. He, though establishing that prima facie case, may be defeated by his opponent (say) M if M can establish that the claimant has been ousted. Here therefore the plaintiffs having shown that they are in the line of descent from Babar Ali, having shown that there has never been an administration of this estate or a splitting of the co-tenancies into a number of separate shares demarcated and assigned, have established a prima facie case. It is then for the defence to establish that the prima facie title has been lost as a consequence of ouster. This case has hitherto been approached along the lines that that defence is established once it is shown that there

has been adverse possession for 12 years. In our opinion that is a misunderstanding of the legal position......"

3. Mr. Jain further stated that Additional Rent Controller has

erroneously dismissed petitioners‟ leave to defend application

without deciding petitioners‟ application wherein it had been

prayed that petitioners be allowed to bring on record the fact that

the alleged partition deed on which respondent no. 1 is relying

upon to be owner of the suit property is absolutely illegal,

uncalled for and having no force in the eyes of law as petitioners

have already challenged the ownership of respondent no. 1 in

their application for leave to defend.

4. Mr. Jabbar Hussain, learned Counsel for respondent no. 1

at the outset submitted that provision regarding inheritance of

tenancy in respect of Mohammedans and Hindus was not

different. In this context, he relied upon a judgment of this Court

in Mohd. Usman Vs. Mst. Surayya Begum reported in 1990

(2) RCR 408 wherein this Court has held as under :-

"4.........The tenancy right which is inheritable devolves on the heirs under the ordinary law of succession. Learned counsel, therefore, submitted that u/S. 40(1) of the Principles of Mahomedan Law applicable to Mahomedans in India, the heirs succeed to the estate of a deceased Mahomedan in common in Specific shares. Thus, the observations of the Supreme Court in H.C. Pandey‟s case (supra) are not applicable in the case of Mahomedan tenants. Learned counsel further submitted that the respondents ought to have been given an opportunity to prove that the documents were not fabricated. Mst. Surayya Begum as a daughter of Khalil Raza was entitled to inherit the tenancy right in the premises in dispute and since she was not a party to the previous litigation, her possession could not be disturbed.

5. I find no force in the contention raised by the learned counsel for respondent no. 1. The provision regarding inheritance of tenancy in respect of Mahommedans and Hindus is not different. The Supreme Court in Gian Devi Anand‟s case (supra) has no doubt observed that tenancy right which is inheritable devolves on the heirs under the ordinary law of succession. It only means that only those heirs who would be entitled to inherit the property of a deceased tenant under the ordinary law of succession would be entitled to inherit even the right of tenancy after the death of the tenant......"

5. Mr. Hussain further stated that petitioners‟ application for

bringing on record the fact that respondent no. 1 was not the sole

owner of property had, in fact, been dismissed by ARC vide a

separate and independent order dated 17th July, 2008. The said

order is reproduced hereinbelow :-

"File is taken up today on an application of R1 under Section 151 CPC and by virtue of this application, Respondent No. 1 wants to place on record the fact that the petitioner is not the sole owner of this property and has concealed the fact that his father late Shri Mohd Wasi has six LR‟s including the petitioner and it has been stated that even in the partition deed relied upon by the petitioner four married daughters of the father of the petitioner has even not been disclosed and this being an important fact that should be brought on record.

I have heard this submission. It is settled provision of law that even one of the co-owner can file or institute a petition for eviction on the ground of bonafide requirement and admittedly the partition deed is a registered document and further if the petitioner has not disclosed that his married sister that is an issue only among the petitioner and other LR‟s of his father and the respondent being a tenant has no ground to challenge the same. Argument heard on leave to defend application put up for order on the date already fixed."

6. After hearing the parties, I am of the opinion that Delhi

Rent Control Act, 1958, makes no distinction between Hindus and

Muslims. As held by this Court in Mohd. Usman's case

(Supra), the provision regarding inheritance of tenancy in

respect of Mohammedans and Hindus is not different. Moreover,

the principle that one co-owner of a suit property can file and

maintain an eviction petition is based on the doctrine of agency

which has no concern with Muslim Personal Law. In India

Umbrella Manufacturing Co. & Anr. Vs. Bhagabandei

Agarwalla (Dead) by LRs Savitri Agarwalla (Smt.) & Ors.

reported in (2004) 3 SCC 178 it has been held as under :-

6....... It is well settled that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners. (See: Sri Ram Pasricha v. Jagannath and Dhannalal v. Kalawatibai). This principle is based on the doctrine of agency. One co-owner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of the other co-owners. The consent of other co-owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement........."

7. In any event, petitioners-tenants have no locus standi to

raise a dispute regarding share of other brother and sisters in the

tenanted premises as that is an issue between the legal heirs of

late Mohd. Wasil. It is not for petitioners-tenants to agitate the

same.

8. The second grievance of petitioners that their application

for bringing on record the fact that respondent no. 1 was not the

sole owner of property had not been disposed of is misconceived

on facts as the said application had in fact been dismissed by a

separate and independent order dated 17th July, 2008 which has

been reproduced hereinabove.

9. Consequently, present petition and applications being