Delhi High Court
Shri. Naushad Ali @ Naushi And Ors vs Syed Manzoor Nizami on 9 March, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 09.03.2011
+ RSA No. 204/2007 & CM No. 11074/2007( for stay)
SHRI. NAUSHAD ALI @ NAUSHI AND ORS .......Appellants
Through: Mr. Sanjay, Advocate.
Versus
SYED MANZOOR NIZAMI ..........Respondent
Through: Mr. S.H. Nizami, Advocate.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. The present appeal has been filed against the impugned
judgment and decree dated 07.05.2007 which has endorsed the
finding of the trial judge dated 29.01.2005 whereby the suit filed
by the plaintiff, Sh. Manzoori Nizami, seeking a permanent and
mandatory injunction against the defendant i.e. restraining him
from demolishing any portion in the suit property i.e. property no.
107 (old) 67-68 (new) situated at Basti Hazrat Nizamuddin, New
Delhi/ to raise any further construction had been decreed in favour
of the plaintiff.
2. The case of the plaintiff is that the defendants are tenants in
the suit property. They had demolished one part of the room as
depicted in the site plan. On 12.05.1991, the defendants started
raising an unauthorized construction. In spite of specific requests,
the defendants did not resist from their acts. Suit was filed.
3. In the joint written statement of the defendants, the
contention was that the plaintiff was not the owner of the suit
property; he has no locus standi to file the present suit, it was
denied that the defendants have raised any unauthorized
construction therein.
4. On the pleadings of the parties, following issues were
framed:-
"a. Whether the defendants have raised any
unauthorized construction in the suit premises?
OPP.
b. Whether the plaintiff has no locus standi to
file the present suit? OPD.
c. Whether the plaintiff is entitled to the relief
as prayed for in the present suit? OPP.
d. Relief."
5. Two witnesses were examined on behalf of the plaintiff and
one witness has come in defence. The rent receipts had been
proved as Ex. PW 1/3 to Ex. PW 1/4A; the copy of the deposit of the
rent application was proved as Ex. PW 1/11. The judgment of the
Additional Rent Controller dated 10.04.2001 had been proved
through the testimony of DW-1. This was in a petition under
Section 14 (1) (e) read with Section 25 (B) of the Delhi Rent
Control Act, 1958. The relationship of landlord and tenant
between the parties had been proved; question of ownership had
not been gone into. This judgment has been vehemently relied
upon by the learned counsel for the appellant to support his
submission that the title of the plaintiff to the suit property has not
been established. This judgment has however admittedly
established the relationship of the landlord-tenant between the
parties.
6. Trial Judge had noted these facts. A positive finding had
been returned that the defendants are tenants in the suit property
and unauthorized construction is being raised by them. Relief
prayed for by the plaintiff had accordingly been granted to him.
7. The impugned judgment had endorsed this finding. This was
after a detailed examination of the evidence, both oral and
documentary. The evidence had been re-appreciated to arrive at
the finding thereby dismissing the appeal.
8. This is a second appeal. The substantial question of law is
embodied at page 6 of the appeal. It reads as follows:-
"a. Whether the judgment of the Court of
Additional Rent Controller passed in respect of
same property in suit and the same parties is
binding or not?"
9. There is no dispute to the proposition that the judgment of
the Rent Controller dated 10.04.2003 has since attained finality; no
appeal has been filed against the said order. This order was
passed on a petition under Section 14 (1) (e) and read with Section
25 (B) of DRCA. Question of ownership has not been gone into.
Admittedly, relationship of landlord-tenant stood admitted. This
finding cannot now be re-agitated.
10. On behalf of the appellant it has been urged that the suit
property is located in a slum area and the provisions of Section 19
of The Slum Areas (Improvement and Clearance) Act, 1956
(hereinafter referred to as "the Slum Act") have not been adhered
to. Attention has also been drawn to Section 9 and 10 of the said
Act. These arguments now urged were never a part of the written
statement of the defendant/appellant; the appellant today has also
placed on record the copy of the notification dated 02.05.1981
stating that Basti Nizamuddin where the suit property has been
located has been notified as a slum area. Admittedly, this was not
a part of the defence raised by the defendant. The respondent has
brought before this court a notification wherein this notification
dated 03.08.1988 stands superseded; area has been de-notified;
that apart, this was never the plea of the appellant in his written
statement; it cannot now be raised in a second appeal.
11. The next submission raised by the learned counsel for the
appellant is that the suit property is a wakf property; this
submission is also in the air and was never a part of the defence of
the appellant in the written statement; such a plea cannot now be
entertained.
12. No substantial question of law has arisen. The impugned
judgment suffers from no infirmity. Admittedly, parties were
landlord-tenant; evidence-oral and documentary- has established
that the tenant/defendant/appellant was raising unauthorized
construction; they were rightly injuncted from doing so. This court
is not a third fact finding court. No substantial question of law
having arisen, appeal as also the pending application is dismissed
in limine.
INDERMEET KAUR, J.
MARCH 09, 2011
ss
