DDA Vs. ROSHAN LAL CHOPRA

JUDGEMENT

(1.) This second appeal is filed under Section 100 CPC, 1908 by the Delhi Development Authority (DDA)/appellant/defendant impugning the concurrent judgments of the courts below; of the trial court dated 1.2.2002 and the first appellate court dated 29.8.2008; by which the appellant has been directed to mutate the suit property bearing Plot no.14, Naraina Industrial Area, Phase II, New Delhi in the name of the respondent-plaintiff without claiming the 50% unearned increase.

(2.) The facts of the case are that the suit property was leased out by the appellant to one M/s Asia Press. Against M/s Asia Press, there was a money decree and execution of the same, the suit property was put to auction on 12.11.1979. Plaintiffs/respondents were the highest bidders in the auction and therefore they purchased the rights of the JD/M/s Asia Press in the suit property. Appellant challenged the confirmation of sale in favour of the plaintiffs by means of filing objections in the executing court. The objections were dismissed by the order of the executing court dated 14.2.1980. For the sake of completion of narration, it may be stated that said objection of the appellant was earlier dismissed in default on 18.9.1979. The case of the respondents-plaintiffs was that after the sale certificate was executed in favour of the respondents/plaintiffs by the executing court they applied for mutation of the suit property in their names with the appellant, but the same yielded no result in spite of follow up and sending of a legal notice inasmuch as the appellant refused to mutate the suit property in the name of the respondents/plaintiffs till they paid 50% unearned increase as per Clause II (6) of the lease executed between the appellant and lessee M/s. Asia Press. The suit for mandatory injunction was hence filed directing the appellant-defendant to mutate the suit property in the name of the respondents/plaintiffs without claiming 50% unearned increase payment.

(3.) The only issue which was urged on behalf of the appellantdefendant before the courts below, and also in this Court, is that by virtue of Clause II (6) of the perpetual lease deed executed in favour of the M/s Asia Press, whenever there is a transfer of interest of the lessee /M/s Asia Press in the suit property, then, the transfer is subject to the appellant-defendant being paid unearned increase and therefore, the respondents-plaintiffs were bound to pay unearned increase, to the appellant/defendant if they wanted mutation of the suit property in their name.