SHRI NIZAMUDDIN Vs. SHRI ABDUL HAQ PRACHA

JUDGEMENT

(1.) This is a second appeal under Section 39 of the Delhi Rent Control Act, 1958 against the order of the Rent Control Tribunal, Delhi, who had dismissed appellant's appeal against the order, dated August 17, 1967, of the Rent Controller, Delhi, in limine. This litigation has been going on for a considerable time and started shortly after the death of Mohd. Shafi, father of the appellant, who was a tenant, under the respondent, of Shop No. 648, alongwith two other shops with which this appeal is not concerned. Mohd. Shafi died leaving a widow and five children, out of whom only two might be mentioned, namely, Quatab-Uddin and the present appellant, Nizam Uddin. On February 28, 1959, the respondent filed a petition for eviction of Qutab-Uddin from the aforesaid shop No. 648. At that time Qutab-Uddin himself was a minor and therefore, an application was made for appointment of the widow of Mohd. Shafi as his guardian. However, the Court appointed its Ahlmad as a guardian. The guardian filed a written statement and ultimately the Rent Controller passed an order of eviction on August 31, 1960.

(2.) It appears that about this time Qutab-Uddin had attained majority and he himself filed a appeal against the aforesaid decree for eviction. This appeal was compromised between the parties and, under the compromise Qutab-Uddin was granted two-and-a-half years time to vacate the premises. Qutab-Uddin did not vacate in spite of expiry of the time granted and, therefore, upon an application by the respondent, the Slum Area Authority granted permission to the respondent on June 9, 1964, to execute the decree.

(3.) It is implicit in issue No. 1 that the case of the widow of Mohd. Shafi and his aforesaid other children, including the appellant, was that Qutab-Uddin by himself and alone was not the tenant of the shop in question and that the shop was under the joint tenancy of the widow and all the children of Mohd. Shafi. In his judgment in this suit the learned Subordinate Judge has observed: The oral evidence, hence examined by both the sides do not help us much but the circumstances of the case clearly show that the story put forward by defendant No. 1 is more trustworthy and credible. It is an admitted fact that defendant No. 2 being the eldest amongst the family was running the shop at the time agreement was made. It is not surprising that heirs of Mohammad Shafi consented into creation of fresh tenancy in favour of defendant No. 2 alone in respect of the remaining two shops. Plaintiffs Nos. 1 and 2 were admittedly present at the time of alleged agreement". The learned Subordinate Judge has discussed the evidence given by the parties and has come to the conclusion that the plaintiffs were not joint tenants of the shops in question. As I read the judgment, the learned Subordinate Judge has held that the other heirs of Mohd. Shafi had agreed to the surrender of the tenancy with respect to the shop in question in favour of Qutab-Uddin, who became the sole tenant thereof and that therefore, the plaintiffs in the suit were not joint tenants in the shop in question. The appeal and the second appeal against this judgment of the learned Subordinate Judge were dismissed and in so far as the Civil Courts are concerned, the judgment of the learned Subordinate Judge, undoubtedly, became final and binding upon the parties.