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Mohd. Raza & Anr. Vs. Geeta @ Geeta Devi

[Civil Appeal No. 6098 of 2021]

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 14.11.2019 passed by the High Court of Delhi at New Delhi in Civil Revision Petition No.175 of 2019, by which the High Court has allowed the said civil revision petition by quashing and setting aside the order dated 27.07.2019 passed by the learned Trial Court and consequently passed a decree of eviction on admission under Order XII Rule 6 of CPC, the original defendants have preferred the present appeal.

2. The facts leading to the present appeal in nutshell are as under:

2.1 That the respondent - original plaintiff had instituted Civil Suit No.805 of 2018 against the original defendants - appellants herein in the court of Senior Civil Judge, (East) Karkardooma, Delhi for possession, mandatory injunction, permanent injunction and mesne profit with respect to the property bearing No.246/4, Ground Floor, East School Block, Mandawali, Delhi (hereinafter referred to as the suit property).

It was averred in the plaint that she is the lawful owner of the suit property since 15.01.2013 and defendant No.1 is the tenant vide rent agreement dated 14.03.2016, who illegally sublet the property to defendant No.2 without any prior intimation to the plaintiff and thus the tenancy of defendant No.1 has been revoked/terminated by the plaintiff on 17.07.2018. Thus the plaintiff claimed the ownership and claimed that original defendant No.1 is the tenant.

2.2 At this stage, it is required to be noted that the defendants filed the written statement (the contents of the same shall be dealt with herein below). After the written statement filed on behalf of the defendants, the plaintiff filed an application before the learned Trial Court to pass a decree on admission under Order XII Rule 6 of CPC on the ground that in the written statement the defendants have admitted that the plaintiff is the owner and defendant No.1 is the tenant of the suit property.

The said application was opposed on behalf of the defendants. A detailed reply was filed under Order XII Rule 6 of CPC on behalf of the defendants. That thereafter the learned Trial Court dismissed the said application vide order dated 27.07.2019 by observing that from the perusal of written statement filed by the defendants, it is palpably clear that defendant No.2 did not make any admission regarding the ownership of the plaintiff and their tenancy in the suit property.

3. Feeling aggrieved and dissatisfied with the order passed by the learned Trial Court dated 27.07.2019, dismissing the application under Order XII Rule 6 of CPC and refusing to pass the decree on admission, the plaintiff - respondent herein preferred the revision petition before the High Court. By the impugned judgment and order, the High Court has allowed the said revision application and quashed and set aside the order passed by the learned Trial Court dismissing the application under Order XII Rule 6 of CPC and consequently passed a decree for eviction in favour of the plaintiff and against the defendants.

At this stage, it is required to be noted that in the written statement, it was the specific case on behalf of the defendants - appellants herein that defendant No.2 is the absolute owner of the suit property and has paid a sum of Rs.19 lakhs to the plaintiff and therefore she is in possession of the suit property as an owner. However, it is to be noted that defendant No.2 had instituted a suit against the plaintiff for specific performance of the contract/agreement on the basis of which defendant No.2 is claiming to be the owner of the suit property and the said suit is still pending.

4. Feeling aggrieved and dissatisfied with the judgment and order passed by the High Court, the original defendants have preferred the present appeal.

5. Shri Sanobar Ali, learned counsel appearing on behalf of the appellants - original defendants, has vehemently submitted that in the facts and circumstances of the case the High Court has materially erred in passing a decree on admission under Order XII Rule 6 of CPC. It is submitted that the High Court has failed to appreciate and consider the fact that as such there was no clear admission on the part of the defendants that the plaintiff is the owner and that the defendants/defendant No.1 is the tenant. It is submitted that therefore in absence of any clear and unambiguous admission, the plaintiff shall not be entitled to the decree on admission. Reliance is placed upon the decision of this court in the case of Himani Alloys Ltd. v. Tata Steel Ltd. reported in (2011) 15 SCC 273.

5.1 It is further submitted by the learned counsel appearing on behalf of the appellants that not only there are no specific admissions on the part of the defendants that the plaintiff is the owner of the suit property, but it was the specific case on behalf of defendant No.2 that she is the absolute owner of the suit property pursuant to the agreement to sell executed by the plaintiff and that defendant No.2 has paid a sum of Rs.19 lakhs to the plaintiff and therefore she is in possession of the suit property as an owner.

5.2 It is further submitted by the learned counsel appearing on behalf of the appellants that even otherwise the substantive suit filed by defendant No.2 against the plaintiff for specific performance of the contract to sell is pending before the learned Trial Court and that there is an injunction in favour of defendant No.2 - plaintiff in that suit.

6. The present appeal is vehemently opposed by Shri Harsh Kumar, learned counsel appearing on behalf of the respondent - original plaintiff. It is submitted that in the facts and circumstances of the case and considering the averments in the written statement, it can be seen that there is a clear admission on the part of the defendants that the plaintiff is the owner. He has taken us to the relevant averments in the written statement filed on behalf of the defendants - appellants herein.

6.1 It is submitted that it is the case on behalf of the defendants more particularly defendant No.2 that she is the owner of the suit property, therefore she is in possession of the suit property as an owner. It is submitted that defendant no.2 is claiming the ownership on the basis of the agreement to sell. It is submitted that agreement to sell does not confer ownership at all. A person in whose favour agreement to sell is executed becomes the owner either pursuant to the sale deed executed by the executor and/or a decree for specific performance of the contract has been passed. It is submitted that even as per the case of defendant No.2 the suit for specific performance is pending.

6.2 It is submitted that if the written statement as a whole is considered, in that case there is an admission on the part of the defendants that plaintiff is the owner and that even the tenancy in favour of defendant No.1 also has been admitted. However, it is the case on behalf of defendant No.2 that she is the owner and as an owner she is in possession which has no legal basis. It is submitted that therefore in the facts and circumstances of the case the High Court has rightly passed a decree on admission under Order XII Rule 6 of CPC.

7. We have heard the learned counsel appearing on behalf of the respective parties at length.

8. At the outset, it is required to be noted that as such respondent herein plaintiff filed the suit for possession, mandatory injunction, permanent injunction and mesne profit with respect to the property bearing No.246/4, Ground Floor, East School Block, Mandawali, Delhi against the defendants - appellants herein, claiming to be the owner of the suit property and claiming that defendant No.1 is the tenant and defendant No.1 has sublet the suit property/premises in favour of defendant No.2. In the written statement, it was the case on behalf of the defendants - appellants herein that defendants are not 'now' the tenant of the plaintiff but the actual owner of the suit property. In paragraphs 1 to 3, it is stated in the written statement as under:

1. "That the present suit is not maintainable as the answering defendants are not now the tenant of the plaintiff but the actual owner of the suit property. The plaintiff sold the suit property in question to the answering defendants for which some documents were also executed by the plaintiff in favour of the answering defendant no. 2/Seema Begum on 15.01.2017 and 29.01.2017, hence the suit of the plaintiff is liable to be dismissed with heavy cost.

2. That the plaintiff has filed a false and fabricated suit by concealing the material and true facts of the case and the plaintiff wants to harass the answering defendants and to grab the earnest money of the answering defendants by filing the present suit.

It is submitted that the suit of the plaintiff is not maintainable in the eye of law because this matter is not the suit for possession, mandatory injunction, permanent injunction and mesne profit between the parties but it is the matter of the ownership, cheating and grabbing the money of Rs. 19 Lakhs of the answering defendant and it is the matter of compliance the agreement between the parties which is executed by the plaintiff on 29.01.2017 hence the suit of the plaintiff is liable to be dismissed with cost.

3. That it is submitted that the suit property is absolutely concerned with the defendants. The defendant no. 2/Seema Begum is absolute owner of the suit property and she has every right or interest in the suit property in question. She has purchased the suit property in question and other part of the suit property (measuring area 30 sq. yards and 50 sq. yards) and the defendants had taken the peaceful possession both part of the suit property from the plaintiff. The defendant no. 2 has also filed a case/suit for specific performance of contract, declaration, eviction and permanent injunction against the plaintiff which is pending for adjudication before the Hon'ble Court of Sh. Sanatan Prasad, Ld. ADJ, East, KKD Courts, Delhi"

Thus from the aforesaid, it is clear that the defendants are claiming the ownership of the suit property. The defendant no.2 is claiming to be in possession as an owner and claiming to be the owner. It can also be seen that the plaintiff has filed the suit as an owner. It is not in dispute and even it is the case on behalf of the defendants that defendant No.2 had instituted the suit for specific performance against the plaintiff with respect to the suit property, meaning thereby there is a clear cut admission that the plaintiff is the owner.

9. It is to be noted at this stage that defendant No.2 cannot be said to be the owner as her suit for specific performance is yet to be decided by the learned Trial Court. Unless and until there is a decree passed in her favour and the decree for specific performance is passed and/or the sale deed is executed pursuant to such a decree, she cannot be said to be the owner of the suit property. Till the suit for specific performance is decided, the plaintiff - respondent herein continues to be the owner and defendant No.1 - appellant herein continues to be the tenant.

In the written statement in paragraph 1, it is specifically stated by the defendants that the defendants are not 'now' the tenant of the plaintiff but the actual owner of the suit property. As observed hereinabove, till the suit for specific performance is decided in favour of the defendants, more particularly defendant No.2, she cannot be said to be the owner and that therefore the plaintiff - respondent herein continues to be the owner and defendant No.1 continues to be the tenant.

Therefore, the aforesaid is rightly treated as an admission on behalf of the defendants with respect to the ownership of the plaintiff and that defendant No.1 is a tenant. Therefore, the High Court as such has rightly passed the decree on admission under Order XII Rule 6 of CPC which in the facts and circumstances of the case cannot be said to be erroneous.

However, at the same time, when the substantive suit filed by defendant No.2 against the plaintiff for specific performance is pending, it is to be observed that the decree passed by the High Court by the impugned judgment and order shall always be subject to the outcome of the said suit filed by defendant No.2 against the plaintiff and if ultimately she succeeds in the suit, and a decree for specific performance is passed and the learned Trial Court passes the decree for possession (if prayed), then necessary consequences shall follow and the plaintiff, subject to filing the appeal, shall have to abide by the decree that may be passed in the suit for specific performance.

It also goes without saying that any injunction granted by the learned Trial Court in the suit filed by defendant No.2 for specific performance of the contract shall also not be affected unless subsequently the order of injunction if any in favour of defendant No.2 is modified by the learned Trial Court.

10. In view of the above and for the reasons stated above, the present appeal fails and the impugned judgment and order passed by the High Court is confirmed subject to the observations made in earlier paragraph No. 9. In the facts and circumstances of the case there shall be no order as to costs.

.......................................J. (M. R. SHAH)

.......................................J. (A. S. BOPANNA)

New Delhi,

October 4th, 2021


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