Pradeep Kumar Malik v. Chander Dhingra

14.3. Thus, the said Will has not been acted upon before any third party. In these circumstances, to accept a plea of ownership set up by the Petitioner herein, who is admittedly a tenant, on the basis of a disputed unregistered will would lead to permitting mischief, at the behest of the tenant, in a summary proceeding before the Rent Controller.

14.4. It is also trite law that by virtue of Section 116 of Evidence Act, a tenant, during the continuance of the tenancy is estopped from challenging the title of the landlord, through whom he claims the tenancy. (Re: Om Prakash and Another v. Mishri Lal (Dead) Represented by his Legal Representative Savitri Devi, (2017) 5 SCC 451).

14.5. Additionally, the disputed facts and plea of ownership has to be established by the tenant in his independent proceedings before a civil court. (Re: Allarakha & Anr., v. Allahwala & Anr., 2014 SCC OnLine Del 3438, Hari Gopal Manu v. B S Ohja ).

14.6. Hence, in view of the aforesaid findings, the plea of the ownership on the basis of unregistered documents (which are disputed by the Respondent) sought to be set up by the Petitioner, while admitting the status of tenancy, cannot give rise to a triable issue.” (Emphasis Supplied) 6.[2] The Petitioner/tenant preferred a SLP (SLP (C) No. 11773/2023) against the order of the this Court dated 17.04.2023 expressly agitating the same issue of ownership qua the subject property. The relevant grounds raised in the SLP read as under:

“B. BECAUSE the Hon'ble High Court while dismissing the Revision Petition also gave incorrect finding on two additional issues: - Owner and landlord-tenant relationship between the parties and the non-reply to legal notice dated 06.02.2020.

E. BECAUSE the Hon'ble High Court failed to appreciate that the subject premises (owned by the Petitioner) is part of a larger shop, bearing number 413, Azad Market Delhi, and the remaining part of the shop is occupied by the Respondent and his family, for past over 40 years.

F. BECAUSE the Hon'ble High Court failed to appreciate the fact that the

Petitioner although entered the subject premises as a statutory tenant in 1981, he has been enjoying the subject premises as the owner for past over 28 years and had no occasion to believe otherwise. This also gains strength from the fact that the Respondent has been in occupation of the remaining/ adjacent premises.

I. BECAUSE the Hon'ble High Court committed an error in construing that the devolution of title upon the Respondent by virtue of registered will dated 05.04.1994 of Shri Tota Ram Dhingra “raises a strong presumption· in favour of the Respondent” while ignoring the will dated 11.08.1995 of Shri Tota Ram Dhingra in favour of the Petitioner which was restricted, to the subject premises only. Despite the non-attornment and disputed claim, the Hon'ble High Court raised presumption under Section 116 of Indian Evidence Act, 1872 while in the same breath leaving the question of ownership and title to be adjudicated before the Civil Court.” 6.[3] The Supreme Court vide order dated 01.06.2023 dismissed the SLP and consequently upheld the eviction order of the ARC and the judgment of the High Court. The order dated 01.06.2023 reads as under: “1. We are not inclined to disturb the concurrent findings of fact rendered by the fora below.

2. Accordingly, the Special Leave Petition stands dismissed together with pending application(s), if any.” 6.[4] The eviction order dated 01.09.2022 passed by the ARC, thus had attained finality in terms of the order passed by the Supreme Court and the Petitioner’s plea of alleged ownership as a basis to resist eviction in the proceedings initiated under the DRC Act was put to rest by the said order of Power of Executing Court under Section 47 CPC

7. Even though the eviction order dated 01.09.2022 attained finality in view of the dismissal of the SLP, the Petitioner/tenant has failed to vacate the subject property and instead filed objections in the execution petition i.e., Ex. P. 607/2023 agitating the identical grounds of alleged ownership of subject property for opposing execution of the eviction decree before the Executing Court. The Executing Court vide order dated 17.10.2023 dismissed the objections holding that the tenant was estopped from raising the very same issueunder Section 47 ofCPC. Therelevant portionofthe order readsas under:

the tenant's failure to file leave to defend application within 15 days and after the eviction order has been affirmed up to Hon'ble Supreme Court of India, the question whether the JD was not a tenant but the owner of the property, is not a question to be determined u/s 47 CPC. The authorities relied upon by Ld. Counsel for the JD, no doubt lays down the preposition that executing Court has the power to decide all questions arising between the parties relating to execution, discharge or satisfaction but the same is not applicable to the present case in view of the nature of the proceeding’s u/s 25B DRC Act.” 7.[1] The Petitioner/tenant contended before this Court that in view of Section 47 of CPC the issue of claim of ownership of the subject property raised by the tenant ought to be adjudicated upon by the Executing Court before eviction; and the Executing Court has exclusive jurisdiction to decide the inter-se claims of ownership between the landlord and the tenant. Further he contended that the Petitioner cannot maintain a separate suit for deciding the said claim. 7.[2] In the considered opinion of this Court, the said contention of the Petitioner is bereft of any merits. 7.[3] The Supreme Court in Pradeep Mehra (supra) has held that the scope of jurisdiction of the issues to be determined by the Executing Court under Section 47 CPC are questions limited to ‘execution of the decree’ and these questions do not enable the Executing Court to go behind the decree. The relevant portion of the judgment reads as under: “5. A bare perusal of the aforesaid provision shows that all questions between the parties can be decided by the executing court. But the important aspect to remember is that these questions are limited to the “execution of the decree”. The executing court can never go behind the decree. Under Section 47, CPC the executing court cannot examine the validity of the order of the court which had allowed the execution of the decree in 2013, unless the court’s order is itself without jurisdiction.” The issue of alleged ownership of the Petitioner herein has no bearing on the execution of the eviction decree as the validity of the said decree of eviction has been tested and upheld by the Supreme Court. And, the plea of ownership raised by Petitioner has been expressly rejected by the High Court and 7.[4] In the aforesaid judgment, Supreme Court also referred to another judgment Dhurandhar Prasad Singh v. Jai Prakash University and Others[8] relevant part of the said judgment reads as under: “24. ………. The exercise of powers under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. Thus, it is plain that executing court can allow objection under Section 47 of the Code to the executability of the decree if it is found that the same is void ab initio and a nullity, apart from the ground that the decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a decree inexecutable after its passing.” The objections sought to be raised by the Petitioner herein in the execution proceedings do not raise any challenge to the validity and executability of the decree of eviction. The Petitioner’s claim of ownership based on GPA, ATS, Will and possession letter all dated 18.08.1994 is misconceived in law and fact as the said documents together do not per-se confer any ownership rights on the Petitioner. (Re: Shakeel Ahmed v. Syed Akhlaq Hussain[9])

8. The learned counsel for the Petitioner has referred to the following judgments to contend that Judgment Debtor can maintain objections before the executing Court despite having lost the case on merits and the executing Court is bound under law to decide any and all objections raised by the Judgment Debtor. 8.[1] Learned counsel for the Petitioner relied on the judgment of this Court in Mohd Farjam v. Sarfaraz Ahmed & Ors.10 which in the opinion of this Court is not applicable to the facts of this Case. In the said judgment the Court was dealing with a situation wherein the objector to the execution i.e., Mohd Farjam was not a party to the eviction proceedings. Mohd Farjam was not the judgment debtor but a third party and he objected to the eviction proceedings contending that he is the owner of the tenanted premises. 8.[2] The reliance placed by the counsel for the Petitioner on the Shreenath & Ors. v. Rajesh and Ors.11 is misplaced owing to the fact that the question raised before the Court in the said case was whether the third party in possession of a property claiming independent right as a tenant, who was not party to a decree under execution could resist such decree by seeking adjudication of his objections under Order XXI Rule 97 of the CPC. Thus, in this case the objector was not the judgment debtor but a third party. 8.[3] Further in the case of N.S.S. Narayana Sarma & Ors. v. Goldstone Exports (P) Ltd. and Ors.12 the suit as originally filed was for partition and in the said suit a preliminary decree of partition was passed. After the passing of preliminary decree certain applications were moved before the High Court for delivery of possession as the applicant claimed to be purchasers from the original decree holder, the said prayer was allowed by the High Court. At this juncture, the appellants before the Supreme Court came into picture and tried to obstruct the delivery of possessions to the applicants before the High Court. 10 ILR (2010) Supp. (1) Del. 539. 11 AIR 1981 SC 1827. 12 AIR 2002 SC 251. The Court noted that appellant herein was not a party to the original suit and at the stage of execution was claiming independent title to the subject matter property. Thus, in this case as well the objection was raised by a third party and not the judgment debtor, who had suffered the decree. 8.[4] In Bhanwar Lal v. Satyanarain, the Supreme Court held that when any person, whether claiming derivative title from the judgment-debtor or a party which sets up his own right, title or interest de hors the judgment debtor to resist execution, the Executing Court whilst executing the decree, in addition to the power under Rule 35(3), is empowered to conduct an enquiry whether the obstruction by that person is legal or not. In Bhanwar Lal (Supra) the objections were filed by one Satyanarain, who was admittedly a third-party. 8.[5] In the facts of the Petitioner’s cited judgments, the objectors therein were third-parties to decree under execution and were claiming independent rights. Therefore, thesaid judgmentshaveno relevanceto thefacts of thepresentcase.

9. The Respondent has rightly pointed out that in the judgments relied upon by the Petitioner, the objections therein were filed by third parties before the Executing Court. The said third parties were otherwise not the Judgment Debtors. It was in these facts that the claims of third parties were entertained by the Executing Court only for the purpose of determining the executability of the decree against the said third parties. No challenge to Executability of Eviction Decree

10. The Petitioner has admittedly not challenged the executability of the decree of eviction on the ground that it is inexecutable under law, rather the Petitioner has raised bogus plea of ownership to resist the execution. 10.[1] The grounds on which the execution of the eviction decree is opposed are identical to the grounds considered and rejected by the High Court on 17.04.2023. The effect of the order of the High Court is that the said grounds of alleged ownership have been held to not afford any justifiable cause to the Petitioner herein to oppose his eviction in the eviction proceedings and, therefore, in essence the plea of ownership being re-agitated by the Petitioner in no manner casts a doubt on the executability of the eviction decree dated 01.09.2022. 10.[2] Further, executing Court was right in concluding that once the Petitioner has raised identical grounds in the revision proceedings, which has been considered and rejected, the same grounds cannot be agitated in the execution proceedings. The re-agitation of the said grounds to oppose eviction would be barred by res-judicata. The order of the Executing Court dated 17.10.2023 is, therefore, correct and does not suffer from any infirmity.

11. So also, the order of the RCT dated 10.11.2023 holding that no appeal is maintainable against the order dated 17.10.2023 under Section 38 of the DRC Act in view of Section 25-B (8) of the DRC Act is correct in view of the judgment of the Co-ordinate Bench of this Court in Mohd Arshad and Others v. Syed Mohd Yahana Nizami.13

12. In Bata India Limited v. Sarla Sharma14 relied upon by the Petitioner, an eviction petition was filed under Section 14(1)(e) of the DRC Act, and an ex-parte eviction order was passed therein against the tenant and in favour of the landlord. The tenant thereafter, filed an application under Order IX Rule 13 CPC, requesting that the ex-parte eviction order be set aside, while the said application was listed for final arguments the landlord filed an application for the issuance of warrants of possession, stating that the tenant had failed to meet

14 AIR ONLINE 2021 DEL 532J. the conditions as specified in the interim order dated 03.06.2011. The said application of the landlord was allowed and the application of the tenant pending under Order IX Rule 13 CPC was dismissed vide order dated 29.11.2013. The question arose as to whether an appeal against such an order allowing the said landlord’s application and dismissing the tenant’s application under Order IX Rule 13 CPC could be maintained. This Court held that an appeal under Section 38 of DRC Act was not maintainable against such an order dated 29.11.2013. This was the ratio of this judgment and therefore the reliance placed by the Petitioner on the said judgment is of no assistance. Remedy before Civil Court

13. The Petitioner’s claim of alleged ownership based on disputed unregistered documents has no relevance to the issue of execution of the decree and the said issue would have to be agitated by the Petitioner before the Civil Court in accordance with law. This was also held by the High Court in the order dated 17.04.2023 at para ‘14.5’. 13.[1] It is a matter of record that the Petitioner/tenant herein filed a suit for the claim of ownership (CS SCJ 883/2023) and withdrew the same on 05.07.2023 after seeking liberty to file a fresh suit on the same cause of action. The order dated 05.07.2023 passed by the Civil Court reserving liberty to the Petitioner/tenant reads as under: “Plaintiff submits that he may be permitted to withdraw the present suit with liberty to institute a fresh suit on the same cause of action in accordance with law. Separate statement of plaintiff is recorded to this effect. In view of statement given by plaintiff today in Court, the present suit is disposed off as withdrawn with liberty to plaintiff to institute a fresh suit on same cause of action. However, it is made clear that the plaintiff shall be bound by the law of limitation in the fresh suit instituted on permission granted by this Court in the same manner as if this suit has not been instituted. File be consigned to the record room after due compliance.” The Petitioner has without any cause not exercised any liberty to file a fresh suit before the Civil Court. Conclusion

14. Accordingly, this Court finds no merit in this petition and the same is dismissed with costs of Rs. 50,000/- in favour of the Respondent. Mesne profits

15. The learned counsel states that Rs. 18,000/- is being paid as mesne profits by the Petitioner to the Respondent for continuing to occupy the subject property after the passing of the eviction order. It is stated that the said amount was awarded as an interim measure vide order dated 24.02.2023 passed in RCR 263/2022. The Respondent has placed on record a registered lease agreement dated 05.02.2024 to contend that similarly located properties are fetching a monthly rental of Rs. 33,000/- per month.

16. Since, the lease agreement is a registered document, there is presumption of genuineness attached with a registered document. The Petitioner has failed to handover the physical possession of the property despite an eviction order being passed against him and having been upheld by the Supreme Court. The conduct of the Petitioner in not vacating the property smacks of wilful disregard for due process of law followed by the Respondent. In such fact, the Petitioner, who is in unlawful occupation of the subject property is liable to pay mesne profits at market rate. The Petitioner is hereby directed to pay the mesne profits at the rate of market rent of Rs. 33,000/- per month w.e.f. 01.06.2023 i.e., the date of dismissal of SLP against the Petitioner, until the handing over of the possession. The arrears of mesne profits shall be paid within four weeks failing which, Petitioner will be liable to pay interest at 12% per annum. In case, the Petitioner fails to make the payment, the arrears of mesne profits and the current mesne profits will be recoverable in the present execution proceedings.

MANMEET PRITAM SINGH ARORA, J NOVEMBER 12, 2024/mt/sk