ALL INDIA TIBBI CONFERENCE Vs. HAJI MOHD SHAFI

JUDGEMENT

(1.) This is a first regular appeal arising out of the judgment and decree passed by the trial court on 31.10.1980. Respondent filed the suit for recovery of possession of the first floor and second floor of the demised premises and damages for use and occupation. It was the case of the respondents that they were the owner of the property bearing No.2070-71 and 2077 situated at Ahata Kaley Sahib, Gali Qasimjan, Delhi. The case set out in the plaint by the respondent was that Hakim Mohd. Ilyas Khan was a tenant of the first and second floors of the suit property under Mst.Zohra Bi, a previous owner of the property at the rate of 110/- p.m. Hakim Mohd Ilyas Khan died on 26.2.1963. It was averred in the plaint that during his life time Hakim Mohd. Ilyas Khan inducted the appellants in the first floor portion of the premises and parted with its possession without the consent or permission of the owner. It was further averred in the plaint that the defendants tresspassed into and occupied the second floor portion after the death of Hakim Mohd. Ilyas Khan. The plaintiff's case in the plaint was that the defendants were in occupation of first and second floors of the property without any right or title to it. The suit property was purchased by the respondent in 1969 and the present suit was filed on 8.6.1972. Appellants No.1 and 2 filed the written statement inter alia raising same defence in their respective written statements. Paragraph No.2 of the written statement is relevant to decide the controversy. The same is reproduced below:- Para 2 of the plaint is denied being incorrect. Hakim Mohd. Ilyas son of Shri Ahmed Ali Khan was a patron and founder of "All India Unani tibbi Conference" defendant No.1. The suit premises were taken on rent for and on behalf of the said public institution as tenant from Mst. Zohra Bi wife of Sheikh Haji Mohd Ismyel daughter of Sheikh Abdul Wahab. Defendant No.1 has been in occupation of the suit premises as tenant and has been using the same for holding meetings and for furtherence of its activities. The rent @ Rs.110/- has also been paid throughout by the defendant No.1 to Mst. Zohra Bi. Sometimes in cash and sometimes by cheques. It was to the knowledge of Mst. Zohra Bi that Hakim Mohd. Ilyas had no right, interest in the tenancy rights of the suit premises. Para 2 however, is vague and incomplete. The necessary particulars required by law to be given have not been stated in this para. It does not disclose as to when Shri Mohd Ilyas occupied which portion of the suit property. The defendant all the same has been in possession of the entire suit property for over twelve years from the date of the suit. If the learned court comes to the conclusion that defendant No.1 has not been a tenant of the property than defendant No.1's possession has been open and hostile to the plaintiff and/or his predecessors in title. The suit is barred by time and defendant No.1 has become the owner thereof by prescription.

(2.) Again in paragraph No.3 of the written statement the plea taken by the appellants was that the appellant No.1 has been in occupation of the property in suit as tenant. He also took the plea that in view of the bar of Section 50 of the Delhi Rent Control Act, the jurisdiction of the civil court is barred and the respondent must go to the Rent Controller under the provisions of Delhi Rent Control Act. From the pleadings of the parties, the trial court framed the following issues.

(3.) Mr.Makhija, learned senior counsel appearing for the appellants has very fairly conceded that with regard to the decree of possession in relation to second floor he is not advancing any arguments and he is not disputing the finding of the trial court. Mr. Makhija has contended that the main grievance in the appeal is with regard to the decision on issue No.2 by the trial court. Mr.Makhija confined his arguments on the finding of the aforesaid issue returned by the trial court. Learned counsel for the appellant has contended that the suit was barred pursuant to the provisions of Section 50 of the Delhi Rent Control Act and the proper remedy for the respondent was to file an eviction petition under the provisions of Section 14 (1) (b) of the Delhi Rent Control Act. Section 14 (1) (b) of the Delhi Rent Control Act is to the following effect:-