Delhi High Court
Gayasuddin & Ors. vs Mohd. Asqin & Anr. on 28 October, 2015
* HIGH COURT OF DELHI AT NEW DELHI
+ RC. Revision No.574/2015
Decided on : 28th October, 2015
GAYASUDDIN & ORS. ...... Petitioners
Through: Mr. T.C. Sharma, Advocate.
Versus
MOHD. ASQIN & ANR. ...... Respondents
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
1. This is a revision petition filed by the petitioner against the order
dated 12.8.2015 by virtue of which the learned ARC-I, Central, Tis
Hazari Courts, Delhi dismissed the eviction petition bearing No.352/2014
titled Gayasuddin & Ors. vs. Mohd. Asquin & Anr.
2. I have heard the learned counsel for the petitioners. The learned
counsel has contended that the learned ARC has erroneously dismissed
the petition despite the fact that he has been able to establish that he is the
actual successor being the brother of late Sitara Begum and therefore, he
becomes the owner. It has also been stated by him that so far as the other
parameters for passing a decree of eviction are concerned, they were also
satisfied and are not in question before the learned ARC.
3. I have carefully considered the submissions and have gone through
the impugned order. One Gayasuddin, s/o Late Mohd. Rashid & Others
filed an eviction petition claiming themselves to be the owner of property
No.7595, Ward NO.14, Katra Khuca Baksh, Qasabpura, Delhi. The case
which was setup by them was that the property actually belonged to
Sitara Begum, who had expired on 18.2.1985. Sitara Begum had married
one Tasleem, who had migrated to Pakistan and thereafter, she had never
heard of him. It was stated in the petition that the present three
petitioners, being the real brothers of Sitara Begum have inherited the
property and thus, are the owners of the suit property. It was also stated
that petitioner No.1 is having six family members including himself;
petitioner No.2 is having nine family members including himself and
petitioner No.3 is having more than eleven family members while as the
petitioners are in possession of two properties bearing No.T-275/6 and T-
275/10, Ahata Kinara, Delhi besides property No.7595-B, Qasabpura,
Delhi, which is the suit property, which are grossly insufficient to
accommodate all the family members and therefore, the petition was
filed.
4. The respondent had contested the petition after leave to defend was
granted. It was stated by them that the petitioners are not the legal heirs
of late Sitara Begum and in any case, there are more than two legal heirs
who have not been joined as parties and therefore, the petition is bad in
law. So far as bona fide requirement of the petitioners is concerned, that
was also contested and it was also disclosed by them in the written
statement that in addition to the aforesaid properties disclosed by the
respondents, they also had properties bearing No.5113/2 and 5118,
Quresh Nagar, Delhi, apart from the suit property which was sufficient to
meet their requirement. The petitioners in support of their case had
examined their power of attorney AW1 Mohd. Naseem, who had proved
following documents :-
"a. SPA Ex. AW-1/1
b. Copy of death certificate Ex. AW-1/3
c. Copy of ration card of Mohd. Mirajuddin Ex. AW-1/10
d. Copy of ration card of Mohd. Islamuddin Ex. AW-1/11
e. Copy of death certificate of Mohd. Mirajuddin Ex. AW-
f. Copy of Pedigree Chart Ex. AW-1/13."
5. From the cross-examination of the witness, one thing had been
very clearly established that Sitara Begum had married Tasleem, who is
still alive and he had migrated to Pakistan. The learned ARC had
dismissed the petition on the ground that the petitioners have not been
established to be the owners of the property by any credible evidence.
For this purpose, it has referred to the fact that Sitara Begum, the owner
of the property might have expired but there is no evidence brought on
record to show that her husband Tasleem had also expired. On the
contrary, it has been established that he had migrated to Pakistan and was
still alive and this factum was admitted by AW1 in his cross-examination.
On this short ground itself, the learned ARC came to the conclusion that
as the petitioners were not the owners, therefore, decree of eviction in
their favour could not be passed. The other points were not at all
discussed by the learned ARC.
6. I find no infirmity in the analysis of evidence by the learned ARC
in returning the finding of dismissal of the petition as one of the
important ingredients to be satisfied before the decree of eviction can be
passed on the ground of bona fide requirement is that the person who is
claiming retrieval of possession of the premises under Section 14 (1) (e)
of the DRC Act must establish that he is the owner, which has not been
established in the instant case. Therefore, I find that there is no illegality,
jurisdictional error or impropriety in the impugned order. Accordingly,
the petition under Section 25-B (8) of the DRC Act is totally
misconceived and is dismissed.
V.K. SHALI, J.
OCTOBER 28, 2015
'AA'
