As Defendant’s suit for specific performance is yet to be decided by the learned Trial Court, she cannot be said to be the owner of the suit property as held by the Hon’ble Court through the bench lead by Justice M.R Shah in the case of Mohd. Raza & Anr. v. Geeta @ Geeta Devi (CIVIL APPEAL NO.6098 OF 2021).
The brief facts of the case are that the Respondent (originally plaintiff) had instituted Civil Suit No.805 of 2018 against the appellants (original defendants) in the court of Senior Civil Judge, (East) Karkardooma, Delhi for possession, mandatory injunction, permanent injunction and mesne profit with respect to the suit property. It was averred in the plaint that she is the lawful owner of the suit property since 15.01.2013 and defendant No.1 is the tenant vide rent agreement dated 14.03.2016, who illegally sublet the property to defendant No.2 without any prior intimation to the plaintiff and thus the tenancy of defendant No.1 has been revoked/terminated by the plaintiff on 17.07.2018.
The plaintiff filed an application before the learned Trial Court to pass a decree on admission under Order XII Rule 6 of CPC on the ground that in the written statement the defendants have admitted that the plaintiff is the owner and defendant No.1 is the tenant of the suit property. After a detailed reply on behalf of the defendants the learned Trial Court dismissed the said application vide order dated 27.07.2019, it is palpably clear that defendant No.2 did not make any admission regarding the ownership of the plaintiff and their tenancy in the suit property.
Feeling aggrieved and dissatisfied with the order passed by the learned Trial Court, the plaintiff – respondent herein preferred the revision petition before the High Court. The High Court has allowed the said revision application and quashed and set aside the order passed by the learned Trial Court dismissing the application under Order XII Rule 6 of CPC and consequently passed a decree for eviction in favour of the plaintiff and against the defendants. Feeling aggrieved with the order passed by the High Court, the original defendants have preferred the present appeal.
Shri Sanobar Ali, learned counsel appearing on behalf of the appellants – original defendants, has vehemently submitted that the High Court has failed to consider the fact that as such there was no clear admission on the part of the defendants that the plaintiff is the owner and that the defendants/defendant No.1 is the tenant. Reliance is placed upon the case of Himani Alloys Ltd. v. Tata Steel Ltd. It is further submitted that it was the specific case on behalf of defendant No.2 that she is the absolute owner of the suit property pursuant to the agreement to sell executed by the plaintiff and that defendant No.2 has paid a sum of Rs.19 lakhs to the plaintiff and therefore she is in possession of the suit property as an owner. Also, the substantive suit filed by defendant No.2 against the plaintiff for specific performance of the contract to sell is pending before the learned Trial Court.
The present appeal is vehemently opposed by Shri Harsh Kumar, learned counsel appearing on behalf of the respondent – original plaintiff. It is submitted, it can be seen that there is a clear admission on the part of the defendants that the plaintiff is the owner. It is submitted that defendant no.2 is claiming the ownership on the basis of the agreement to sell. A person in whose favour agreement to sell is executed becomes the owner either pursuant to the sale deed executed by the executor and/or a decree for specific performance of the contract has been passed.
After hearing both the sides, the Hon’ble Court held that “There is a clear cut admission by the defendant that the plaintiff is the owner. Defendant No.2 cannot be said to be the owner as her suit for specific performance is yet to be decided by the learned Trial Court. Till the suit for specific performance is decided, the plaintiff – respondent herein continues to be the owner and defendant No.1 – appellant herein continues to be the tenant. In view of the above and for the reasons stated above, the present appeal fails and the impugned judgment and order passed by the High Court is confirmed”
Judgment reviewed by Vandana Ragwani