Saraswati vs Angoori Devi (Now Deceased) Thr. ...
2014 Latest Caselaw 4548 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+
            C.R.P No.157/2012 & C.M.No.21034/2012 (Stay)

%                                                    17th September, 2014

SARASWATI                                                     ......Petitioner
                          Through:       Mr.Dinesh Kumar, Advocate

                          VERSUS

ANGOORI DEVI (NOW DECEASED) THR. LRS.        ...... Respondents

Through: Mr.Ramkishan Saini, Advocate.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This petition under Section 115 of Code of Civil Procedure, 1908

(CPC) is filed by the petitioner/defendant in the suit against the impugned

judgment and decree dated 10.9.2012 passed by the trial court decreeing the

suit of the respondents/plaintiffs (LRs of original plaintiff Angoori Devi)

under Section 6 of the Specific Relief Act, 1963 (in short 'the Act').

2. A reading of the plaint shows that the only basis of the

respondents/plaintiffs to claim to be in possession of the suit property was

that an eviction decree bearing no. 8/2001 dated 28.11.2001 was obtained by

Smt.Angoori Devi against one tenant Rajender Kumar and in execution of

that decree, the petitioner/defendant Smt.Saraswati Devi was found in

possession of the suit property and she was accordingly dispossessed in

execution of the decree, but, since the petitioner/defendant again came back

in possession of the suit property, therefore the subject suit under Section 6

of the Act was filed to reclaim the possession. The suit property is A-17,

Jhilmil Colony, Shahdara, Delhi situated on a plot admeasuring approx.

57.50 sq. yds.

3. A further reading of the plaint shows that the only basis for claiming

possession under Section 6 of the Act is the decree passed against one

Rajender Kumar and there is no averment in the plaint as to how and when

Rajender Kumar, the alleged tenant was inducted as a tenant by Smt.Angoori

Devi, and also as to if Rajender Kumar was put into possession and

continued in possession of the suit property as a tenant through Smt.Angoori

Devi then what are the facts which show that possession. Also, there is no

averment in the plaint as to what were the legal rights of Smt.Angoori Devi

as regards the suit property ie whether she was the owner etc and pursuant to

which right she came into the possession of the suit property and

consequently was entitled to create the alleged tenancy in favour of one

Rajender Kumar.

4. The case of the petitioner/defendant was that there was never any real

tenant Rajender Kumar. The decree which was obtained by Smt.Angoori

Devi against Rajender Kumar was a fraud played upon the court because

Rajender Kumar was a fake tenant and that neither Smt.Angoori Devi nor

Rajender Kumar were ever in possession of the suit property. The

petitioner/defendant was illegally dispossessed in execution of the decree

obtained by Smt. Angoori Devi against a non-existent tenant Rajender

Kumar and by playing a fraud. At this stage, I may note that judgment and

decree against Rajender Kumar is an ex parte judgment and decree as

Rajender Kumar never appeared in the eviction proceedings filed by

Smt.Angoori Devi against him for alleged non-payment of rent under

Section 14(1)(a) of the Delhi Rent Control Act, 1958 (hereinafter referred to as

'the DRC Act').

5. Before dealing with the issues dealt by the trial court, I note that the

respondents/plaintiffs had not filed before the trial court the eviction petition

filed against Rajender Kumar and the eviction decree which was obtained

against Rajender Kumar. These documents are only filed by the

petitioner/defendant in her rejoinder filed in this Court and I have confirmed

the veracity of these documents from the counsel for the respondents, and

accordingly I am taking these undisputed documents on record, more so

because these documents are the foundation of the suit itself of the

respondents/plaintiffs.

6. A reference to the impugned judgment dated 10.9.2012 shows that the

only evidences which are led on behalf of the respondents/plaintiffs were of

the police officials or the court bailiff who executed the judgment and decree

dated 28.11.2001 against Rajender Kumar and dispossessed the

petitioner/defendant who was admittedly found residing in the property and,

these facts/basis are/is the sole basis of the respondents/plaintiffs to have

come into the possession of the suit property.

7. In my opinion, merely showing that the respondents/plaintiffs

came into possession in execution of the judgment and decree against

Rajender Kumar will not give the respondents/plaintiffs entitlement to

possession under Section 6 of the Act unless the possession which is taken

in execution of a decree is of a decree which is valid in the eyes of law viz

the decree is not a fraudulently obtained decree.

8. A reading of the eviction petition filed by Smt.Angoori Devi against

Rajender Kumar under the DRC Act on the ground of non-payment of rent

shows that in para 14 of the eviction petition it was stated that Rajender

Kumar was inducted as a tenant on 01.1.1999. The case of Smt.Angoori

Devi was that Rajender Kumar was inducted as a tenant on 01.1.1999,

however one of the respondents Sh.Kamal Singh, son of Sh. Ishwar Singh,

admitted in his cross-examination conducted on 31.10.2007, that the

petitioner/defendant Saraswati Devi has been residing in the suit property

since the end of year 1997 i.e prior to the alleged date of letting out the suit

property to Rajender Kumar on 01.1.1999 as stated in para 14 of the eviction

petition. Also, in para 14 of her affidavit by way of evidence, the

petitioner/defendant had filed various documents showing her possession

and which included the Conveyance Deed executed in her favour by DDA,

dated 22.7.2005, ration card, election card, water and electricity bills, bank

pass book etc and which undoubtedly established her possession and legal

rights in the suit property.

9. Also as stated above, no documents of title of the suit property have

been filed or relied upon by the respondents/plaintiffs to show as to how

they or Smt. Angoori Devi, their predecessor, derived legal rights in the suit

property, and that how and when on what basis they had come into

possession of the suit property. No doubt, title is not relevant in a suit under

Section 6 of the Act, however, once possession is claimed, how a person

came into the possession will have to be shown to the court because it is to

be shown that the possession was a settled possession and which can be

enforced against a person who has dispossessed a person in a settled

possession.

10. A resume of the above facts, as also the impugned judgment of the

trial court, and the evidence led before the trial court, shows that the only

case set up and the only evidence led by the respondents/plaintiffs of their

coming into possession is through execution of ex parte judgment and

decree dated 28.11.2001 obtained by Smt.Angoori Devi against one

Rajender Kumar, but, there is no proof of any title of Smt.Angoori Devi and

as to how she came into the possession of the suit property and was in settled

possession and how Rajender Kumar was inducted as a tenant and

possession was delivered to the alleged tenant Rajender Kumar, and further

how Rajender Kumar is shown to have continued to be in possession of the

suit/tenanted property till his eviction and so on. Therefore, in sum and

substance, neither title nor settled possession has been proved to be of the

respondents/plaintiffs for the suit to have been decreed under Section 6 of

the Act.

11. In view of the above, the impugned judgment of the trial court dated

10.9.2012 is set aside. Suit of the respondents/plaintiffs for possession

under Section 6 of the Specific Relief Act, 1963 will stand dismissed.

Parties are left to bear their own costs.

VALMIKI J. MEHTA, J SEPTEMBER 17, 2014 KA