Nirmala Devi (Since Deceased) And ... vs Smt Mohini Devi (Since Deceased) ...
2009 Latest Caselaw 194 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+            CM(M) 1053/2007

%                                 Date of Decision : January 20th, 2009


NIRMALA DEVI (SINCE DECEASED)
AND ANR                                        ..... Petitioners
                   Through                     Mr. J.M. Kalia, Advocate


                      versus


SMT MOHINI DEVI
(SINCE DECEASED) AND ORS.                      ..... Respondents
                   Through                     Mr. S.P. Pandey,
                                               Advocate

CORAM:
HON'BLE MR. JUSTICE MANMOHAN


1. Whether the Reporters of local papers may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not?                                    Yes
3. Whether the judgment should be reported in the Digest?                    Yes




                               JUDGMENT

MANMOHAN, J : (Oral)

1. The present petition has been filed under Article 227 of the

Constitution of India challenging the order dated 25th May, 2007

passed by the Civil Judge, Delhi in execution proceedings being

Ex. No. 66/2007 whereby the objections filed by the petitioners

under Section 47 of the Code of Civil Procedure were dismissed.

It is pertinent to mention that after filing of the present petition

even the appeal filed by the petitioners before the Court of

Additional District Judge, Delhi has also been dismissed vide

judgment and order dated 29th September, 2007.

2. Mr. J.M. Kalia, learned Counsel for the petitioners

submitted that the decree and judgment sought to be enforced

was a nullity as it was without jurisdiction by virtue of Sections

14 and 15 of the Delhi Rent Control Act, 1958 (hereinafter

referred to as "the DRC Act") and, therefore, the execution

proceedings were not maintainable.

3. In this connection, Mr. Kalia pointed out that the disputes

between Pt. Bhagwat Kishore and Smt. Chawli Devi, the

predecessor-in-interest of petitioners stood compromised by way

of a settlement-agreement dated 7th December, 1950. The

relevant terms of the compromise agreement are reproduced

hereinbelow for ready reference:-

"IN RE :

             PANDIT BHAGWAT KISHORE                  ....PLAINTIFF

                             VERSUS
             SMT. CHAWLI DEVI                     ....DEFENDANT


                            CIVIL SUIT          FIXED FOR TODAY
             Sir,

The parties have entered into a compromise in the aforesaid case :-

1. That the suit of the plaintiff is that a decree be passed that plaintiff is a legal heir of deceased Ghaio Mal and Ghaio Mal deceased never adopted any son or he executed any will.

2. That Smt. Chawli Devi being in possession of the entire suit property shall have right to use the same for the purpose of her residence as well as to rent out, during her life time. She will be entitled to recover rent from the tenant and in future she will be liable to pay a total sum of Rs. 10/- p.m. to the plaintiff.

3. That Smt. Chawli Devi shall have no right to mortgage, sale, transfer, gift or to mutate the property in any manner, but she will have a right to induct or evict the tenant from the suit property, to collect rent and to file any suit against the tenant(s) for their eviction and till her life the plaintiff would have no right to interfere in any manner in her possession.

4. That in case the property in question falls under the scheme of Delhi Improvement trust or the property is acquired by the Government in any manner and in those circumstances the plaintiff shall be empowered to receive 2/3 share of the compensation and rest 1/3 will go to the defendant/Chawli Devi.

5. That after the death of Smt. Chawli Devi no other legal heirs of Smt. Chawli Devi shall have right in the house.

6. That the suit be decreed in favour of the plaintiff on the aforesaid terms and the parties be left to bear their own costs."

(emphasis supplied)

4. On the basis of the aforesaid compromise executed between

the parties, Sub-Judge passed a judgment and order dated 7th

December, 1950. The relevant portion of the said judgment is

reproduced hereinbelow for ready reference:-

"Plaintiff filed a suit for possession. It is submitted that the plaintiff is the heir of the deceased Ghaio Mal who was the owner of the suit property and defendant who is in possession has no concern in the suit property. Plaintiff has produced copy of registry also. Now the parties have entered into a compromise. The defendant has admitted the plaintiff as the heir of the deceased Ghaio Mal and as the owner of the suit property. But the defendant shall be entitled to retain possession of the suit property during her life-time she shall be entitled to rent out the property but shall not sell or transfer the property. However, she will pay a sum of Rs. 10/- p.m. out of the rental money. In case the property is acquired by the Improvement Trust or by anybody else, in those circumstances the plaintiff shall be entitled to receive 2/3rd share of the compensation and 1/3rd shall be given to defendant no. 1 Smt. Chawli Devi."

(emphasis supplied)

5. Mr. Kalia drew my attention to three execution petitions

filed by the predecessor-in-interest of the respondents, wherein it

was specifically mentioned that a certain amount of money has

fallen due as rent for various periods @ Rs. 10/- per month. Mr.

Kalia also referred to the suit for recovery of possession, damages

and mesne profits being Suit No. 57/1985 filed by the

predecessor-in-interest of the respondents wherein the following

averments were made :

"ii) That Smt. Chawli Devi (defendant no. 1) was to have the right practically to reside in the house, realize rents from the tenants and was liable to pay Rs. 10/- per month as rent to the plaintiff Sh. Bhagwat Kishore Goswami during her life w.e.f. 07-12-50."

"3............

a) That in terms of the aforementioned compromise Shri Bhagwat Kishore Goswami became entitled to get Rs. 10/- per month from Smt. Chawli Devi from the date of compromise i.e. from 07-12- 1950 which she did not pay regularly to him hence a suit no. 220/1958 was filed by Sh. Bhagwat Kishore Goswami in the court of Shri. O.P. Saini, Addl. Judge, Small Cause Court, Delhi........."

(emphasis supplied)

6. He consequently submitted that the predecessor-in-interest

of respondent had admitted the predecessor-in-interest of

petitioners as tenants.

7. Mr. Kalia further submitted that the intent behind the

settlement-agreement was to make petitioners as tenants of the

respondent and even though a fixed term of tenancy was created,

but as during the said period of tenancy, the DRC Act came into

force, the petitioners were entitled to its protection and,

therefore, could only be evicted on the grounds mentioned in

Section 14 of the DRC Act.

8. In this connection, learned Counsel for the petitioners

referred to and relied upon the following judgments of the

Hon‟ble Supreme Court :-

A) Capt. B.V. D'Souza Vs. Antonio Fausto Fernandes

reported in AIR 1989 SC 1816, which according to Mr. Kalia is

relevant as it lays down the test to be adopted as to whether a

document is a lease or a licence.

B) Laxmidas Bapudas Darbar & Anr. Vs. Smt. Rudravva &

Ors. reported in AIR 2001 SC 3738 which deals with

interpretation of a non-obstante clause and states that on expiry

of a fixed term lease, a tenant would be liable to be evicted only

on the grounds as enumerated in Clauses (a) to (p) of sub-section

(1) of Section 21 of the Karnataka Rent Control Act.

C) Mani Subrat Jain Vs. Raja Ram Vohra reported in

(1980) 1 SCC 1 wherein it has been held that the expression

„tenant‟ includes a tenant continuing in possession after the

termination of the tenancy in his favour and the fact that a decree

or any other process extinguishes the tenancy under the general

law of real property, does not terminate the status of a tenant

under a special law, which in the present case is the DRC Act.

9. Mr. S.P. Pandey, learned Counsel for the respondents

submitted that the legal heirs of Smt. Chawli Devi had no right to

contend that they are tenants in respect of the suit premises as

from the compromise agreement dated 7th December, 1950 it

would be apparent that Smt. Chawli Devi had only been given a

right to use the suit premises in her lifetime. He submitted that

though she was entitled to recover rent from tenants, she was

only liable to pay a sum of Rs. 10/- per month as use and

occupation charges. He further pointed out that even in the civil

suit for recovery of possession, damages and mesne profits filed

by the grandmother of the present respondents, the predecessor-

in-interest of the petitioners had not taken a defence that the

petitioners were tenants in the suit premises. Mr. Pandey

referred to the various issues framed by the trial court and

pointed out that even the trial court in the said suit came to the

conclusion that the possession of the predecessor-in-interest of

petitioners in respect of the suit property became unauthorised

and unlawful after death of Smt. Chawli Devi on 4th May, 1980

and as the legal heirs of Smt. Chawli Devi failed to hand over the

vacant peaceful possession of the suit premises to the

predecessor-in-interest of respondents, the respondents would be

entitled to recover damages for use and occupation of the said

premises.

10. Mr. Pandey further submitted that the said findings have

become final and binding upon the parties and in accordance with

the principle of res judicata and constructive res judicata, the

petitioners are not entitled to urge in this Court that they are

tenants. In this regard, Mr. Pandey referred to and relied upon

the following judgments of the Hon‟ble Supreme Court :-

A) Y.B. Patil and Ors Vs. Y.L. Patil reported in AIR 1977 SC 392.

B) Vijayabai & Ors. Vs. Shriram Tukaram & Ors. reported in AIR 1999 SC 431.

C) The Workmen of Cochin Port Trust Vs. The Board of Trustees of the Cochin Port Trust and Anr. reported in AIR 1978 SC 1283.

D) State of Uttar Pradesh Vs. Nawab Hussain reported in AIR 1977 SC 1680.

11. I have heard the Counsel for parties and have perused the

various documents, pleadings and agreement filed by the parties.

I am of the view that the petitioners were not and cannot claim to

be tenants of the said premises as by virtue of a settlement

agreement dated 7th December, 1950, the predecessors-in-

interest of the petitioners, Smt. Chawli Devi, had only been given

a right to use and occupy the premises in her lifetime and collect

rent from tenants and pay a sum of Rs. 10/- per month to the

predecessor-in-interest of the respondents. In fact, the amount of

Rs. 10/- per month paid by her was not by way of rent. The order

of the Sub-Judge dated 7th December, 1950 clarifies that Smt.

Chawli Devi would pay a sum of Rs. 10/- per month out of the

rental money collected by her from the tenants.

12. I am further in agreement with Mr. Pandey‟s submissions

that since tenancy was not claimed by the petitioners in civil suit

for possession filed by the predecessor-in-interest of the

respondents, the petitioners are estopped and barred in law from

contending that they are tenants in the suit premises.

13. It is pertinent to mention that the entire edifice of the

petitioners‟ argument is built on the foundation that the

petitioners are tenants in the said premises and once I have

reached the conclusion that the petitioners are not tenants, then

the entire edifice build by the petitioners collapses and the

judgment cited by the petitioners cease to be of any relevance.

14. Moreover, the fact that a decree for damages and mesne

profits has been passed by a court of competent jurisdiction and

further the fact that the said decree has been upheld by the

appellate court, I am of the view that the petitioners cannot

impugn the findings of the competent court in a proceeding

initiated under Article 227 of the Constitution, specially when

there is no allegation of fraud having been perpetrated by the

respondents. Consequently, as the petitioners are not tenants,

petitioners are not entitled to protection of the Delhi Rent Control

Act and the judgments passed by the Civil Judge and the

Additional District Judge are neither a nullity nor without

jurisdiction.

15. In fact, after hearing the parties at length, I am of the view

that the present proceeding is not only a gross abuse of process

of law but a part of a „legal misadventure‟ embarked upon by the

petitioners to somehow retain possession of the premises even

after competent courts had passed a decree of possession and

damages and that too after a bitterly contested litigation

spanning nearly fifty years. Therefore, I dismiss the present

petition with costs of Rs. 1,00,000/- (Rupees One Lakhs) to be

paid to the respondents.

MANMOHAN,J JANUARY 20th, 2009 rn