MOHD. FARJAM Vs. SARFARAZ AHMED AND ORS.

JUDGEMENT

(1.) THE applicant first defendant moves this Court, for rejection of the suit, on the ground that it is barred in law, citing Order XXI Rules 58 and 101 of the CPC. The plaintiff claims to be owner of property ("suit property") being 190 square yards, part of Khasra No. 436/297, Batla House, Okhla, Jamia Nagar, which is shown in red in the site plan filed with the suit. The plaintiff claims that the third defendant was his predecessor in interest, with whom he (the plaintiff) entered into a transaction to purchase (the suit property), on 25.09.2003 and 26.09.2003, when a General Power of Attorney and a will were executed and Rs. 3,00,000/ - was paid as consideration. It is stated that an agreement (to sell) was also entered, and that further, the predecessor in interest, third defendant put the plaintiff in possession of the suit property. The suit alleges that the suit property was an open piece of land, and formed part of a larger plot of 800 square yards. It is alleged that when this was the factual situation, the first defendant, claiming to be the landlord in respect of the said property, including the suit property, with the aid of the court bailiff, dispossessed the plaintiff from the said suit property, on 30.08.2005. The suit contends that the plaintiff was at that time, unaware of the full facts. but after causing inspection of the official file (of the Court whose decree was sought to be executed) discovered that the first defendant had falsely represented himself to be owner of the suit property, and also alleged falsely that the second defendant was his tenant.

(2.) THE plaintiff elaborates, in the suit, that the first two defendants appear to have colluded in securing the decree of the Court and dispossessing him from the premises, as was allegedly apparent from the circumstance that the suit was instituted in 2004 (E -19/2004); the second defendant was proceeded ex -parte on 15.09.2004, and the eviction decree issued on 12.10.2004. In these circumstances, the plaintiff claims declarations that he is the true and lawful owner of the suit property, and that the decree of the Rent Controller in E -19/2004 is void and not binding, and for the consequential relief of a decree for possession, against the defendant Nos. 1&2; in the alternative, a decree for Rs. 3 lakhs is claimed against the third defendant, in the event of the said defendant's title being proved to be defective.

(3.) IT is urged, in addition, that the question of right, title and interest to the property having been put in issue by way of objections under Section 25 of the DRC Act, before the Additional Rent Controller, the plaintiff cannot agitate the same in the present action. It is pointed out that the provision of Order XXI Rule 101 makes it clear beyond a shade of doubt that issues of title can, and are to be agitated in execution proceedings, and the Rent Controller is competent to decide them. In this case, subsequent to filing of the suit, that application was rejected.