Delhi High Court
Salma & Ors. vs Sharda Devi & Anr. on 8 May, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ EX.S.A. No. 6/2014
% 8th May, 2017
SALMA & ORS. ..... Appellants
Through: Mr. Vireshwar Tyagi, Advocate.
versus
SHARDA DEVI & ANR. ..... Respondents
Through: Mr. Ranbir Singh, Advocate for
R-2.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
EX. S.A. No. 6/2014 and C.M. Appl. No. 15507/2014 (for stay)
1. This execution second appeal was filed by the
appellants/objectors impugning the concurrent judgments of the courts
below; of the Executing Court dated 19.1.2013 and the First Appellate
Court dated 21.5.2014; dismissing the objections filed by the
appellants to the execution of the judgment and decree dated 5.7.2012.
2. The facts of the case are that the respondent no.1 herein
filed a suit for possession against one Md. Javed and which suit was
decreed by the civil court by its judgment dated 5.7.2012. It is this
judgment and decree dated 5.7.2012 which is sought to be executed by
the respondent no.1/plaintiff/decree holder. This judgment decreed the
suit for possession and mesne profits with respect to the property being
shop no. 4 forming part of house No, 417, Gali No. 7/8, West Kanti
Nagar, Delhi-110051.
3. As per the suit which was decreed by the judgment dated
5.7.2012, the respondent no.1/plaintiff/decree holder pleaded that one
Md. Shahid was the tenant of the suit premises being shop No. 4. It
was further pleaded that the tenant Md. Shahid died and thereafter the
possession of the suit property was taken by the defendant one Md.
Javed, and who was the brother of Md. Shahid. Accordingly, it was
prayed that the suit for possession be decreed against Md. Javed who
was a trespasser in the suit shop/premises.
4. In the written statement filed by Md. Javed in the suit he
pleaded that the deceased Md. Shahid had died leaving behind his
widow Smt. Salma and a minor son, and who were said to be running
the suit shop. The suit was therefore prayed to be dismissed.
5. It is therefore seen, that the admitted case is that the
tenanted premises is a shop i.e a commercial premises. The rate of rent
as per the respondent no.1/plaintiff/decree holder was Rs.665/- per
month. The premises in question, therefore, have protection of the
Delhi Rent Control Act, 1958. With respect to the tenancy of a
commercial premises in Delhi on the death of the tenant the tenancy
devolves upon all the legal heirs of the tenant as inheritance to an
immovable property vide judgment of the Supreme Court in the case of
Gian Devi Anand Vs. Jeevan Kumar and Others, (1985) 2 SCC 683.
Therefore, if the deceased tenant Md. Shahid did in fact leave behind
his legal heirs, then such legal heirs, would inherit the tenancy rights of
the suit shop/premises. Appellants claim themselves to be the widow
and children of the deceased Md. Shahid and admittedly the appellants
were not parties to the suit resulting in the judgment and decree dated
5.7.2012. The judgment and decree dated 5.7.2012 therefore is not res
judicata against the appellants. Appellants if they are the legal heirs of
Md. Shahid have an independent title to the suit premises and because
of which they are entitled to continue to occupy the suit shop/premises
as tenants after the death of the original tenant Md. Shahid.
6. A reading of the judgments of the courts below show that
the objections filed by the appellants have been dismissed in limine
without giving an opportunity to the appellants to lead evidence in
support of their case that they are the widow and minor son of the
deceased Md. Shahid. The courts below have observed that they
cannot look into the documents and that there is no need of trial with
respect to the objections filed by the appellants. I cannot agree with
such conclusions of the courts below, inasmuch as, no doubt there is no
fixed procedure with respect to deciding of objections filed against the
execution of a decree, but once there are bonafidely disputed questions
of fact which require trial, and for which purpose Order XXI of CPC
was amended by Act 104 of 1976 by including therein provisions of
Order XXI Rules 96 to 103, and which were to benefit persons in
possession of the property against which a decree has been passed, and
since admittedly Md. Shahid was a tenant, there is a valid disputed
question of fact requiring trial/evidence with respect to whether or not
the appellants are or are not the legal heirs of Md. Shahid. I may note
that the defendant in the suit Md. Javed at the very first instance i.e
while filing the written statement in the suit had taken up the objection
that the suit was not maintainable against him because the deceased
Md. Shahid had left behind the appellants as the legal heirs being his
widow and children. Therefore, in the present case it is seen that a
bonafide disputed question of fact exists requiring trial of the
objections and the objections of the appellant therefore could not have
been dismissed in limine as has been done by the courts below.
7. In view of the above discussion, this execution second
appeal is allowed. The impugned judgments of the courts below dated
19.1.2013 and 21.5.2014 are set aside to the extent that the objections
of the appellants are directed to be decided after issues are framed and
trial is thereafter conducted meaning thereby evidence is led by the
parties.
8. This second appeal is accordingly allowed and disposed
of, leaving the parties to bear their own costs.
9. Parties to appear before the District and Sessions Judge
(North-East District), Karkardooma Courts, Delhi on 30th May, 2017
and the District and Sessions Judge will mark the objections for
disposal to the competent court in accordance with law and the
observations made in the present judgment.
MAY 08, 2017 VALMIKI J. MEHTA, J
AK
