Shri Mohd. Sharif & Anr. vs Mohd. Shamim & Anr.
2011 Latest Caselaw 5497 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                      Date of hearing : 09th November, 2011
%                     Date of Decision : 16th November, 2011

+                         RFA (OS) 55/2009

        SHRI MOHD. SHARIF & ANOTHER              Appellant.
                 Through: Mr.S.D.Ansari, Advocate
                           versus
        MOHD.SHAMIM & ANR.             ...Respondents
                 Through: Mr.Bahar U.Barqi, Advocate
        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE S.P.GARG

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?

     2. To be referred to Reporter or not?

     3. Whether the judgment should be reported in the Digest?

S.P.GARG, J.

1. The dispute amongst close relations over Shop Nos. 1733 and 1735, Kucha Dakhni Rai, Pataudi House, Darya Ganj, Delhi led respondents herein (plaintiffs before the learned Single Judge) to file a suit for recovery of possession and injunction against the appellants. Appellant No.1 is the brother of the respondents and appellant No.2 is their nephew. During trial, Agreement cum Family Settlement was filed before the trial court in which appellant No.1 with respondent No.2 entered into a compromise regarding shop No.1735. On the basis of that compromise filed before the trial court, respondent No.2 withdrew his suit against the present

appellants. The learned Single Judge passed the impugned judgement and decree against the appellants regarding property bearing No.1733 Kucha Dakhni Rai, Pataudi House, Darya Ganj, Delhi.

2. Claim of the respondents before the learned Single Judge was that the property in question was taken on rent by respondent No.1 from the Ministry of Rehabilitation, Government of India, who were the owner-landlord in respect thereof. Respondent No.2 was a lawful tenant in respect of property No. 1735 Kucha Dakhni Rai, Pataudi House, Darya Ganj, Delhi under the Ministry of Rehabilitation, Government of India. It is alleged that the appellant No.2-nephew of respondent No.1 was associated by him in his printing business being run by him in premises in question as he was a college drop-out and was not interested in further studies. In the last week of August, 2003 the respondents came to know that the appellants in collusion and connivance with each other were trying to sell/dispose of the printing machine and accessories lying in the premises in question. They were also trying to part with the whole or part of the said premises by accepting a huge premium. Respondent No.1 filed complaint dated 02.09.2003 with the police, however, the appellants did not vacate the premises in question.

3. The appellants were duly served before the trial court. Appellant No.2 chose not to appear and was accordingly proceeded against ex-parte on 05.11.2004. Appellant No.1 put his appearance before the trial court, however, he failed to file his written statement within the statutory period as a result of

which his right to file written statement was closed vide order dated 28.04.2006.

4. To prove its case, the respondents examined 4 witnesses. After hearing the learned counsel for the parties and on appraisal of the evidence adduced before it, the trial court passed the impugned judgment and decree.

5. We have heard the learned counsel for the parties and have scrutinised the evidence on record. Only pleas the learned counsel for the appellants before us are that the respondents had no right, title or interest in the property in question as they failed to produce and prove on record any allotment of the premises in question in their favour by the Ministry of Rehabilitation, Government of India. The documents produced on record by the respondents are fake and forged and cannot be taken into consideration. The respondents admitted in the cross-examination that the premises were purchased from one Kishan Lal. No document to that effect has been filed on record. The appellants have possessory right in the property in question and they cannot be evicted by the respondents from the premises in question. The respondents have taken contradictory plea as to if the respondents were dispossessed from the premises in question or that they had permitted appellant No.2 to occupy the premises in question.

6. Scanning the evidence on record it reveals that the respondent No.1 claimed himself to be a lawful tenant in the premises in question under the Ministry of Rehabilitation, Government of India. Respondent No.1 in his affidavit Ex.PW- 1/A categorically asserted himself to be a tenant under Ministry

of Rehabilitation. He proved on record various receipts issued by the concerned department whereby the rent was paid for the premises in question. Material testimony is that of PW-4 Nagender Shah, UDC, Land and Building Department, NCT, Delhi who brought the relevant register showing the counter- foils of the receipt book. On seeing the receipts Ex.PW-1/3 (four receipts collectively) in the judicial file bearing No.22675 dated 11.03.2004, 22658 dated 19.01.2004, 22676 dated 11.03.2004 and 22659 dated 19.01.2004, he testified that all the four receipts were part of the receipt books brought by him. These receipts were being issued by him in his writing. The witness also produced the original Rent Demand Collection register for the year 1984-85 and testified that at page No.113 at serial No.53 there was an entry in that register in the name of Mohd.Shamim-respondent No.1. Again at page No.115 at serial No.69 there was an entry in the name of respondent No.2-Mohd.Laiq. Photocopy of those register entries were Ex.PW-4/1 and Ex.PW-4/2. In the cross-examination the witness clarified that the rent receipts Ex.PW1/3 were issued on the basis of entries in the Rent and Demand register Ex.PW4/1 and 2. Nothing was suggested to this witness if these documents were forged and fabricated. No motive was imputed to this witness for making false deposition regarding the documents before the court.

7. Appellant No.1 admittedly settled the dispute regarding property No.1735 Kucha Dakhni Rai, Pataudi House, Darya Ganj, Delhi with respondent No.2 and filed on judicial record Agreement cum Family Settlement on the basis of which

respondent No.2 withdrew its suit qua property No.1735 Kucha Dakhni Rai, Pataudi House, Darya Ganj, Delhi. On perusal of this Agreement cum Family Settlement, it reveals that the present appellant No.1 categorically admitted therein that the property No.1735 Kucha Dakhni Rai, Pataudi House, Darya Ganj, Delhi was owned by the Department of Rehabilitation, Government of India which had let out the said property in the name of respondent No.2. The appellant No.1 accepted that with the execution of that agreement, the respondent No.2 had agreed and accepted to surrender and transfer the tenancy rights in the said property in his favour and henceforth, he would be liable to pay all rent, taxes and other dues relating to the said property. It was further mentioned in the said Agreement cum Family Settlement that by virtue of the said Agreement, the rights of respondent No.1, if and when held in the property No.1733 and 1735, would not be effected in any manner whatsoever or in any legal proceedings which might be pending already or might be proposed to be filed by respondent No.1 in relation to those properties.

8. The appellant No.1 cannot be permitted to take a contrary stand qua the property No.1733 in which respondent No.1 claimed himself like respondent No.2 to be the tenant in the property in question under Ministry of Department of Rehabilitation, Government of India. This admission in Agreement cum Family Settlement by appellant No.1 substantiated the claim of respondent No.1 regarding his right, title and interest in the property bearing No. 1733 Kucha Dakhni Rai, Pataudi House, Darya Ganj, Delhi.

9. Adverse inference is to be drawn against appellant No.2 for not contesting the suit before the trial court and for remaining ex-parte despite service. Adverse inference is also to be drawn against appellant No.1 as he failed to file written statement, despite an opportunity given, within the statutory period and his defence happened to be struck out.

10. The appellants failed to demolish the case of the respondent No.1 before the Hon'ble Single Judge. No suggestion whatsoever was put to the respondents in their cross-examination as to what right, title or interest, the appellants were having in the property in question or as to how and under what circumstances and under what legal authority, they happened to occupy the premises in question. The appellants did not claim to have paid any rent/charges either to the respondents regarding the use and occupation of property in question or to the department of Rehabilitation or to someone else to justify their possession in the property No.1733 Kucha Dakhni Rai, Pataudi House, Darya Ganj, Delhi. The appellants failed to produce on record any document whatsoever showing their legal possession in the premises in question.

11. We find no substance in the plea of the learned counsel for the appellants that since no documents executed by Kishan Lal in favour of the respondents have been placed on record he can't maintain the suit. At one stage the premises in question might be in the tenancy of said Kishan Lal and the same might have been taken by respondent No.1 from Kishan Lal to continue his possession in the premises in question under

the Ministry of Rehabilitation. Since the subsequent rent was tendered and accepted by the Rehabilitation Department from respondent No.1 regarding the premises in question it stands established that respondent No.1 was taken as a tenant in the shop in question by the concerned department.

12. Since the respondents were able to prove on record oral evidence which remained uncontroverted and unchallenged in the cross-examination coupled with official documents on record whose genuineness was not in doubt, the Hon'ble Single Judge was justified to pass a decree for possession of the premises in question in favour of respondent No.1. The legal status of the respondent No.1 in the shop in question was recognised by the Ministry of Rehabilitation, Government of India. The appellant having no legal right in the shop in question have no locus standi to challenge the tenancy rights of the respondent No.1 in the shop in question. The appellants can't be permitted to occupy the premises in question without having any right in it.

13. We find no merits in the appeal filed by the appellants and the same is dismissed.

(S.P.GARG) JUDGE

(PRADEEP NANDRAJOG) JUDGE November 16, 2011 sa