Delhi High Court
Masjid Noor Ahmed Wakf & Ors vs Rafiq Ahmed (D) Thr His Lrs & Ors on 30 August, 2016
$~34
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 30.08.2016
+ CM(M) 639/2016 & C.M. No.23872/2016 (for stay)
MASJID NOOR AHMED WAKF & ORS ..... Petitioners
Through: Mr. Rajinder Mathur, Advocate.
Versus
RAFIQ AHMED (D) THR HIS LRS & ORS ..... Respondents
Through: Mr. Arvind K. Gupta, Advocate for R-2,
4 to 8.
Ms. Monica Kapoor, Advocate for R-3, 9
& 10.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. By the present petition, the petitioners seek to impugn the
order dated 11.2.2016. By the said order, the ARC in the execution
petition directed that the evidence be recorded on the objections
filed by the respondents claiming title to the said property.
2. The limited facts relevant for the present petition are that the
petitioner filed an eviction petition in 1998 under Section 14 (1) (b)
of the DRC Act in respect of the premises comprising of four
shops on the ground floor of property No.326, Jamia Nagar, Main
Market, Okhla, New Delhi against respondent No.1. On 24.8.1999,
the predecessor-in-interest of respondent Nos.2 to 15, Rahimuddin,
filed an application under Order I Rule 10 CPC for being
impleaded as a party in the eviction petition claiming title to the
property. Vide order dated 10.1.2001, the ARC impleaded the
CM(M) 639/2016 Page 1
predecessor-in-interest of respondent Nos.2 to 15 in the eviction
petition. The ARC also declined to stay the proceedings to await
the outcome of the civil suit. Against the said direction declining
stay, the predecessor-in-interest of respondent Nos.2 to 15 filed a
petition under Article 227 of the Constitution of India before this
court which was dismissed on 14.7.2003. An SLP filed against the
said order was also dismissed on 15.12.2003. In the meantime, the
petitioners preferred an appeal against the order of the ARC dated
10.1.2001 impleading the predecessor-in-interest of respondent
Nos.2 to 15 as a party. The Rent Controller vide order dated
22.7.2004 allowed the appeal of the petitioners and set aside the
order of impleadment. The petition filed by the respondent against
the said order under Article 227 of the Constitution was also
dismissed by this court.
3. On 26.7.2012, the ARC passed an eviction order in favour of
the petitioners and against the legal heirs of the deceased tenant,
namely, respondent No.1. The petitioners sought to execute the
said eviction order. On 9.4.2013, part execution of the eviction
order took place. Now, respondent Nos.2 to 15 filed objections
under Section 25 of the DRC Act opposing the aforesaid eviction
petition.
4. By the impugned order, the executing court noted that
dispute exists between the parties regarding title and in view of
Section 25 of the DRC Act which provides protection against
eviction in an execution of a decree if any person has an
independent title, directed that the matter would require evidence.
CM(M) 639/2016 Page 2
5. I have heard the learned counsel for the parties. The learned
counsel for the petitioner has stated that relief to respondent Nos.2
to 15 was declined at each stage. They have lost before the
appellate court, before this court and before the Supreme Court and
that the objections are nothing but a delaying tactic.
6. The learned counsel appearing for the respondent has relied
upon the judgment of the full Bench of this court in the case of
K.G. Malhotra vs. Vijay Malhotra; 1973 (9) DLT 267 to contend
that the ARC under Section 25 of the DRC Act would have to
adjudicate upon the title of the property.
7. Some basic facts are that originally the property in question
was bought on 16.8.1962 by two ladies Jamila Begum and Sayeeda
Begum. They were the wives of Haji Syed Noor Ahmed. Jamila
Begum died on 27.3.1969 after she bequeathed her share of the
property to her husband Haji Syed Noor Ahmed. It is the
contention of the petitioner that Haji Syed Noor Ahmed and
Sayeeda Begum created the Trust i.e. petitioner trust and hence the
Trust has title to the said property. In contrast, the case of
respondent Nos.2 to 15 is that in 1993, after the death of Haji Syed
Noor Ahmed, Sayeeda Begum and the sisters of Haji Syed Noor
Ahmed sold the property to them and they entered into possession
thereof.
8. In view of the above facts as pleaded by the respective
parties, it is clear that there is a bona fide title dispute between the
parties.
9. Section 25 of the DRC Act reads as follows:-
CM(M) 639/2016 Page 3
"25. Vacant possession to landlord. -
Notwithstanding anything contained in any other law,
where the interest of a tenant in any premises is
determined for any reason whatsoever and any order
is made by the Controller under this Act for the
recovery of possession of such premises the order
shall, subject to the provisions of Section 18, be
binding on all persons who may be in occupation of
the premises and vacant possession thereof shall be
given to the landlord by evicting all such person
therefrom:
Provided that nothing in this section shall apply to any
persons who has an independent title to such
premises."
10. In view of the aforesaid provision, the eviction order is
binding on all persons, who may be in occupation of the premises;
however, this does not apply to any person who has an independent
title to such premises.
11. The full Bench of this court in K.G. Malhotra's case (supra)
in para 23 held as follows:-
"23. The substantive part of Section 25 gives effect to
the executability of order or decree for possession
against all persons bound by it contained in Order
XXI Rule 35 (3) Civil Procedure Code. Any person in
occupation of the premises is, therefore, liable to the
evicted in execution of the order for eviction on the
presumption that he is claiming through the deceased
tenant. His legal representatives would also be
included in such proceedings. If, however, the legal
representatives have an independent title, that is, a
title to occupy the premises not through the tenant but
CM(M) 639/2016 Page 4
in their own right or through someone other than the
deceased tenant, then they cannot be evicted in
execution of the order for eviction in view of the
proviso to Section 25. Section 50 (4) of the Act of
1958 also reserves the final decision on title to a civil
court. The Controller has, therefore, to decide
whether a person has an independent title to the
premises. If his conclusion is in the affirmative, then
he must refuse to evict that person. If his conclusion
is in the negative, then he would proceed to evict such
a person on the ground that such a person does not
have independent title and is covered by the
substantive part of Section 25. The said person would,
however, have a right to challenge his decision in the
civil court on the basis of his title in view of Section 50
(4) of the Act of 1958."
12. Reference may also be had to the order of this court dated
29.5.2008 passed in CM (M) No.1142/2004 which was filed by the
predecessor-in-interest of respondent Nos.2 to 15. By the said
petition, the respondents had challenged the orders of the appellate
court dismissing the application for being impleaded. This court
noted that the eviction petition is not going to decide the title of the
property. If the petitioners therein have an independent right or
remedy after the eviction order is passed, the petitioners
(respondent Nos.2 to 15 herein) would be free to have such
recourse as may be permissible in law.
13. The respondent Nos.2 to 15 cannot be shut out if they have
an independent claim/title to the property in question. Section 25 of
CM(M) 639/2016 Page 5
the Act would permit the ARC to adjudicate upon the claim of the
said respondents of having an independent title.
14. In view of the above, there is no merit in the petition.
Accordingly, the petition is dismissed. However, in order to
resolve the dispute between the parties, the ARC is requested to
expeditiously dispose of and deal with the objections by declining
adjournments, unless in an emergent situation.
JAYANT NATH, J.
AUGUST 30, 2016
'AA'
CM(M) 639/2016 Page 6
