MOHD. JAMIL & ORS. Vs. MIRAJUDDIN

JUDGEMENT

(1.) The present second appeal under Section 100 CPC assails the judgment dated 26.10.2006 passed by the First Appellate Court, i.e. learned ADJ Delhi Fast Track Court, New Delhi, whereby the first appeal preferred by the defendant/appellant i.e. RCA No. 22/06/87 under section 96 CPC was dismissed. The said regular first appeal challenged the judgment and decree dated 16.02.1987 passed by the trial court, viz. the Sub Judge 1st Class Delhi, in Suit No. 451/79, decreeing the suit preferred by the plaintiff for declaration and mandatory injunction against the defendants.

(2.) The plaintiff/respondent -Mirajuddin initiated the suit on the premise that the building bearing municipal House Tax no. IX/436(old) 739(New), situated at Jama Masjid, Delhi (the suit property) was a composite evacuee property. On 24.09.1960 the Competent Officer advertised the public auction of the suit property against reserve price of Rs. 45,000/ - in exercise of the powers conferred under the Evacuee Interest (Separation) Act, 1951. The plaintiff Mirajuddin gave the highest bid of Rs. 22,000/ -, and he paid 10% of the bid amount. Since the bid amount was below 1/2 of the Reserve price, the plaintiff was intimated that the matter will be referred to the Custodian of Evacuee Property for acceptance of his bid, and intimation will be sent to him

(3.) There were two defendants in the suit. They were Mohd. Vakil ­ defendant No.1 and his wife Fatima Sultan ­ defendant No.2. The plaintiff stated that the defendants were related to him. The case of plaintiff was that in the middle of October, 1960 the defendants came to meet the plaintiff and his mother and got to know of the above transaction. The defendant No.1 offered to help the plaintiff and stated that he has contacts in the Custodians office and will prevail upon them to get his bid accepted. In November 1960, defendant No.1 informed the plaintiff and his mother that the custodian had agreed to accept the bid, and advised the plaintiff to deposit the balance amount of 19,800/ - in cash. Impressed with the efforts of defendant no 1, the plaintiff's mother asked him to collect and deposit the balance amount. Accordingly, the mother of the plaintiff handed over the cash of Rs. 20,000/ - to the defendant No.1 for deposit with the custodian. He informed that he had deposited the said amount. After this, the defendant No.1, on some pretext or the other, claimed that the sale certificate had not been issued. He claimed that the finalization will take a little time, as the office of the Competent Officer had not received the names of the persons in occupation of the suit property either as tenants or as unauthorized persons. It was further averred that because of the doubt which arose due to inordinate delay, plaintiff's mother sent the plaintiff to the office of the Competent Officer to inquire about the actual status regarding the sale certificate, where he was told that the issue of sale certificate is being withheld, as the Custodian of Evacuee Property has not sent the list of occupants of the suit property. After passing of considerable period of time when nothing happened, the plaintiff and his mother got suspicious and requested the defendant no.1 to handover the original receipt of 19,800/ -, but he informed that the same had been deposited with the office of the Competent Officer.