ZAHOOR AHMED Vs. RAJESH KATYAL

JUDGEMENT

(1.) By this application, the plaintiff/applicant seeks a decree on admissions against the defendants.

(2.) Learned counsel for the plaintiff contends that defendants No. 1 to 3 are the illegal occupants of the suit shop and by a notice dated 16th September, 2010 the defendants were called upon to discontinue their illegal user from the said premises and to hand over vacant and peaceful possession along with damages to the plaintiff. The stand of defendants No. 1 to 3 is that they are the bona fide tenants of the suit shop. They along with late Shri Om Prakash Katyal had been inducted as such by defendant No.4. The rent deed dated 14th August, 1990 was executed between Shri Om Prakash Katyal along with defendants No. 1 to 3 and defendant No.4. Defendant No.4 has clarified that the document executed with the defendants No. 1 to 3 and late Shri Om Prakash Katyal was a license deed and not a rent deed. In view of this admitted stand and the fact that the license has been terminated by a notice, the defendants are required to vacate the suit premises and hand over vacant and peaceful possession of the same to the plaintiff. Further the defendants No. 1 to 3 had instituted proceedings under Section 27 of the Delhi Rent Control Act, 1958 (in short "DRC Act") against the plaintiff and others claiming to have become their tenants in respect of the suit shop i.e. Shop No.7 admeasuring 99 sq.ft. located in the front portion of premises known as "Hans Cinema", situated on G.T. Karnal Road, Azadpur, Delhi, which application was dismissed by the learned Additional Rent Controller on 16th November, 1998 holding that the status of defendants No.1 to 3 was not that of tenants. Since this order has not been challenged by defendants No. 1 to 3, the same has become final. Thus, a decree be passed. The defendant No.4 also admits giving an undertaking to this Court in Suit No.1332/1988 on 27th July, 1989 that he will not sublet or part with any portion of the demised land except to allow permissive user as pure licencee. In view of explanation VIII to Section 11 CPC, it is contended that the question is not whether the finding is binding or not but whether the Delhi Rent Controller was competent to decide the same. When a Court of limited jurisdiction returns a finding to that limited extent, the same operates as res judicata in subsequent proceedings. Reliance is placed on Commodore B.Y. Wad v. M/s Rallis India Ltd. & Another, 2002 9 JT 549, K. Kishore & construction (HUF) v. Allahabad Bank, 1998 71 DLT 581, Rajiv Saluja v. M/s Bhartia Industries Ltd. & Anr., 2002 98 DLT 720 and Ram Raj Chaurasia v. Ram Bakshi & Another (RFA No. 221/2011 decided by this Court on 22nd July, 2011).

(3.) Learned counsel for the defendants No.1 to 3 contends that the tenancy in favour of defendants No. 1 to 3 was created by M/s Vijay Cinema, which built the suit property and executed a rent deed dated 14th August, 1990 in favour of Shri Om Prakash Katyal, the predecessor in interest of defendants No. 1 to 3 herein. The answering defendants 1 to 3 were informed of change of landlord and it was informed that Shri Daroga Mohd. Swalin, Daroga Mohd. Ayub, Aziz Ahmed and Zahoor Ahmed became co-landlords qua the answering defendants. The plea taken by defendant No.4 cannot be an admission of the status by the answering defendants. The compromise arrived at between the parties in the earlier proceedings was not acted upon and thus subsequent proceedings were initiated in suit No. 1268/1996. Admittedly as per the site plan, physical possession of shop Nos. 2, 4, 5 and 7 was with the occupants who continued to be in possession of the same as per their rights earlier. Further an adjudication by the Rent Controller under Section 27 of the DRC is not binding on the civil Court in terms of Section 50(4) of the DRC Act. Reliance is placed on Jeevan Diesels and Electricals Ltd. v. Jasbir Singh Chadha (HUF) and another, 2010 6 SCC 601, Smt. Vidyawanti v. Tokan Dass,1974 RLR 23 and Mrs. D. David v. Miss R. Mukha, 1972 RCR(Rent) 253.