SHAKUNTALA GUPTA Vs. MAN MOHAN GUPTA AND ORS.

JUDGEMENT

(1.) Aggrieved by the order dated 5th April, 2014 whereby the application of the Petitioner under Order 7 Rule 11 CPC was dismissed, the Petitioner prefers the present petition.

(2.) The Respondent No.1 filed Suit No.40456/2011 before the District Judge, Tis Hazari titled as 'Man Mohan Gupta vs. Smt. Shakuntala Gupta and others' praying for a decree of declaration that the order dated 29th October, 2010 passed by the learned ARC in Eviction Petition No.E- 652/2009 and 653/2009 and order dated 5th July, 2011 in Execution Petition being Ex.No.73/2010 and Ex.No.74/2010 are non-est, null, void, unoperational and inconsequential, further for declaration that the Respondents/Plaintiff is the lawful occupant of the ground floor and first floor of the property admeasuring 80 sq. yards (in shot 'the suit property') out of Plot No.3430-31, Gali Bajrang Bali, Bazar Sita Ram, Delhi and a decree for recovery of possession and permanent injunction.

(3.) In the plaint, Respondent No. 1 pleaded that the Respondent was an occupant of the property falling under the control of Defendant Nos. 2 and 3, that is, Union of India and custodian of evacuee property as tenants by virtue of rent receipts under the Scheme of Rehabilitation of Refugees over the evacuee properties passed in 1947. The Petitioner dispossessed the Respondent No.1 by virtue of an ex-parte order dated 29th October, 2010 and an order in an execution petition dated 5th July, 2011 passed by the learned ARC against the predecessor in interest of Respondent No.1. The said decree was obtained by the father of the Petitioner by suppressing real and true facts and thus playing fraud upon the Court. It is stated that as per the record of the Custodian/Assistant Settlement Commissioner, the suit property along with the larger property formed part of estate of Rabina Begum and her two sons namely Hakim Abdul Hamid and Mohd.Sayeed. Rabina Begum died in Delhi on 5th October, 1949 as non-evacuee. Her one son Hakim Abdul Hamid stayed in India as non-evacuee but her other son Mohd.Sayeed migrated to Pakistan in January, 1948. The properties as noted above have not been separated as evacuee and non-evacuee property and thus are composite in nature. However, the Competent Officer sold the property in auction on 18th May, 1961 and the same was purchased by one Moti Ram, father of the Petitioner. In the proceedings as noted above between Moti Ram and Kesho Prasad and Khushi Ram, it was submitted by the Settlement Commissioner, Litigation Section that there was a defect in survey conducted by which the property No.2289/3430-31 was shown as part of property No.2243-46/3342-46 vide the report dated September, 1977 and since no action was taken by the Property Section, Moti Ram succeeded in getting the decree in his favour. The ground floor of the suit property had been allotted to one Kushi Ram Mehta, the predecessor of Respondent No.1who migrated in September, 1947 as part of rehabilitation scheme. Only a portion of the built up area on property No.IX/2243-46/3346 (new) was auctioned on 18th May, 1961 and since the property formed a part of non-evacuee property and was yet to be separated the plot was provisionally conveyanced to the purchaser, father of the Petitioner. Moti Ram was thus granted only provisional occupation on 31st October, 1961 which fact was not disclosed before the Court of law. Further Moti Ram in Suit No.185/81 was also able to obtain a decree of declaration in his favour without disclosing the true and correct facts of the case and Moti Ram was declared the owner of the entire property No.IX/2243-2246(old) 3342/3346 (new). Moti Ram was accepting the rent from Khushi Ram Mehta for the first floor by force and coercion and without any prior intimation or acknowledgment to the Respondent No.2 and 3/Defendant Nos. 2 and 3. The said property was handed over to the Respondent No.1 by Smt.Bimla, wife of late Khushi Ram Mehta vide possession letter, GPA, Agreement to Sell, Will dated 16th March, 1998. The Respondent No.1 has been in continuous and peaceful occupation of the suit property however, on 23rd June, 2011 the Petitioner took over the possession of the suit property vide the eviction order of the learned ARC. Thus the Petitioner had played fraud upon the Court and had misrepresented facts before the Rent Controller thereby obtaining an order on concocted facts.