Mohd Raisuddin vs Mohd Din & Ors
2012 Latest Caselaw 1862 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of Judgment: 19.3.2012

+            RC.REV. 64/2011 & CM No.4521/2011 (for stay)

      MOHD RAISUDDIN                      ..... Petitioner
                  Through:            Mr.Anand Singh, Advocate.

                  versus


      MOHD DIN & ORS                     ..... Respondents

                   Through:           Mr.S.S.Dhingra, Advocate.


      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR J. (oral)

1. Order impugned is the order dated 30.10.2010; application filed

by the tenant seeking leave to defend had been dismissed; eviction

petition filed by the landlord seeking eviction of his tenant Mohd.

Raisuddin from the disputed premises comprising of two rooms;

common latrine-bathroom and verandah in a part of property No.1853,

Katra Sheikh Chand, Lal Kuan, Delhi had been decreed.

2. The eviction petition disclosed that the landlord claims himself to

the owner of the disputed premises; to support his submission a

registered sale deed dated 15.12.1998 had been placed on record

whereby the earlier landlord Bal Kishan Monga had sold this property in

favour of Mohd. Din (the present landlord); the name of the

petitioner/tenant (Mohd. Raissuddin) occupying the ground floor of the

premises as a tenant has also been mentioned in this registered sale

deed.

3. The eviction petition further disclosed that the bonafide need of

the landlord is for a residential purpose; his contention was that his

family comprised of himself, his wife and 5 sons and two daughters.

One son who is married and has four children; a second son who also

has a family of three daughters; a third son who is also married and has

two children; fourth son is also married; fifth son who is of a

marriageable age; the petitioner also has also two daughters; one of

whom is living in UP and the another is living in Delhi; they also

frequently visit the petitioner with their husbands.

4. Present accommodation available with the petitioner is

insufficient; one son of the petitioner and his family are in possession of

three small rooms measuring 8 x 8 sq. feet and open space on the ground

floor marked A,B,C, and D; second son is in occupation of one room

marked E and store marked F; third son is in occupation of one room

marked G and store H; fourth son is in occupation of one room marked

I; present petitioner along with his unmarried son are occupying a room

marked J on the first floor; the entire family has a common kitchen. The

second floor is also in tenancy. The disputed premises are accordingly

required bonafide for the residence of the petitioner and the afaorenoted

persons who are dependent upon him.

5. The application seeking leave to defend has been perused. The

whole bone of contention raised by the defendant and urged today is that

there is no relationship of landlord and tenant between the parties and

the landlord is in fact not the owner of the property; his contention is

that this property had been purchased by his wife by an agreement to

sell; no date of the agreement has been mentioned; no document

including the alleged agreement to sell has been placed on record;

contention of the petitioner/tenant is that because of a dispute with his

wife this document could not be obtained. He has no answer to the

specific query put to him that the landlord has a registered sale deed in

his favour wherein the status of the landlord as owner has been verified

and this sale deed also makes a mention of the fact that the present

petitioner (Mohd. Raisuddin) is a tenant in the aforenoted premises;

6. Legal notice dated 18.10.2000 had been sent by the erstwhile

owner Bal Kishan Monga to the present petitioner; the second legal

notice dated 25.10.2000 had been sent by the landlord Mohd. Din after

purchase of this property from the erstwhile owner which was on

15.12.1998. The document dated 28.7.2009 is a purported agreement

between the parties and has also been placed on record whereby the

tenant had agreed to deliver possession of the disputed portion on

payment of Rs.2 lacs; landlord-tenant relationship in this document has

also been accepted. Learned counsel for the tenant states that this

document has in fact not been executed by him; it has been executed

during the pendency of this eviction petition i.e. on 19.5.2009 on a blank

paper and is thus not binding upon him. It is difficult to believe that

during the pendency of the eviction petition the tenant would have

signed on a blank paper and would have handed over a blank paper to

the landlord on his askance and convenience.

7. That apart the status of the landlord as owner of the property has

been verified by the registered sale deed; as also the fact that in this sale

deed name of Moh.Din as a tenant has been mentioned. The submission

of the tenant that his is the owner has nowhere been established.

8. No other triable issue has been raised. This is only argument

urged before this Court and does not in any raise any triable issue.

Courts have time and again held that unless and until a triable issue

arises leave to defend cannot and should not be granted in a routine

manner.

9. In this context in Nem Chand Daga Vs. Inder Mohan Singh Rana

94 (2001) DLT 683, a Bench of this Court had noted as under:-

"That before leave to defend is granted, the respondent must show that some triable issues which disentitle the applicant from getting the order of eviction against the respondent and at the same time entitled the respondent to leave to defend existed. The onus is prima facie on the respondent and if he fails, the eviction follows."

10. Eviction petition having been decreed in the background and the

application seeking leave to defend having been dismissed thus suffers

from no infirmity. Dismissed.

INDERMEET KAUR, J MARCH 19, 2012 nandan