ILYAS Vs. MOHAMMAD ADIL

JUDGEMENT

(1.) . This is defendants' appeal against the judgment and decree dated 24 August 1985 of the Sub Judge. First Class. Delhi, whereby the suit of the plaintiffs-respondents was decreed. A decree of possession was passed in favour of the plaintiffs against the defendants respecting shop bearing No. 660, Ward No. VII, Bazar Farashkhana. Delhi.

(2.) The plaintiffs being the legal representatives of deceased Mohd. Aqil filed the suit for possession in January 1973. Principal contesting plaintiff would be Mohd. Adil (the First plaintiff) son of Mohd. Aqil. There were lour defendants. Defendants land 2 (now the appellants)arcstepbrolhcrs of Mohd. Aquil. They are all.however.sons of Mohd.Yunus. The third respondent is the daughter of Mohd. Aqil, now living in Pakistan, and fourth is BholaNath. purchaser of the property in question from the Competent Officer under the Evacuee Interest (Separation) Act, being a composite property. Plaintiffs said that shops No. 660 and 661. Ward No.VII. Bazar Farashkhana. Delhi, were in the tenancy of Mohd. Aqil, his father, at a monthly rent of Rs. 13.00 and that Mohd. Aqil died on 26 March 1961. Plaintiffs, therefore, claimed the tenancy rights in both the shops. Then the plaintiffs said that they surrendered the tenancy rights of shop No. 661 to the fourth defendant, but the tenancy rights in the other shop. i.e., the suit premises, continued to be with them. Their complaint is that after the death of Mohd. Aqil and "finding the plaintiffs helpless the defendants 1 and 2 who are the brothers of Mohd. Aqil from different mothers tresspassed on shop No. 660". and that in spileof the plaintiffs raising demands, defenants 1 and 2 did not hand .over possession of the suit premises to them. Plaintiffs say that cause of action arose in March 1963 when defendants 1 and 2 took possession of the shop in question.

(3.) Defendants 1 and 2 denied the stand taken by the plaintiffs and said they had no cause of action. They said tenancy of Mohd. Aqil was statutory one and that defenant No. 4 who had purchased the property from custodian was colluding with the plaintiffs. The version of defendants I and 2 was that they along with Mohd. Aqil had been doing a joint business of selling milk in both the shops No.660 and 661and that these properties were evacuee properties. Then Mohd. Aqil fell ill and could not do any work and left the business to defendants 1 and 2 leaving no interest to himself and ultimately the illness ended his life. Then defendants I and 2 say that they applied to the custodian and they were accepted as tenants.and that they not only paid all the arrears of rent but also current rent against receipts. These defendants also said that Mohd.Adil.first plaintiff. was never in business and that during the life time of his father he was employed in a press. Then the case of defendants 1 and 2 is that since the fourth defendant wanted to take possession of the shop after its purchase from the Custodian and threatened eviction, a compromise was arrived in July/August 1966 whereby defendants 1 and 2 agreed to surrender possession of shop No. 661 to defendant No.4 and defendant No. 4 accepted them as his tenants in shop No-660. Two writings (Exts.D-1 and D-2) were executed-in one possession of shop No.660 was given to defendant No.4 and by the other writing he received whole of the arrears of rent in respect of both the shops. Defendant No. 4 is also slated to have issued a rent receipt in respect of shop No. 660 to defendants I and 2 thereby admitting them to he his tenants. These defendants then say that the rent charged by the custodian of the shop was Rs.6.50 per month and the same rent was agreed to by the fourth defendant, and. however, later fourth defendant became dishonest and wanted to increase the rent. Since the defendants refused, he colluded with the plaintiffs. Defendants 1 and 2 then say that fourth defendant filed an application under section 19 of the Slum Areas (Eviction of Unauthorised Occupants) Act against the plaintiffs seeking permission to sue them for eviction without impleading defendants 1 and 2 as parties in those proceedings. Permis- sion to file eviction proceedings were. however, granted by the Competent Officer under the Slum Areas (Eviction of Unauthorised Occupants) Act, and when defendants 1 and 2 came to know of all this they filed a suit for declaration to the effect that they were the legal occupants and tenants in the shop and could not be evicted except by due course of law. It was staled that that suit was pending. Defendants I and 2 also said that various other cases, both civil and criminal, were pending between them and the plaintiffs, and that the fourth defendant was taxing advantage of that. and that whole financing of this litigation had been done by him.