Gopal vs Union Of India And Ors.

S.N.H. Zaidi, J

Since the caveator is represented by his Counsel, the caveat is discharged. This Appeal impugns the order dated 18th April, 2013 passed by the P.O. of DRT, Jaipur, whereby Appeal 2/2010 filed against the order dated 5th January, 2010 of the R.O.-1 of DRT, Jaipur in R.C. No. 183/2001 has been dismissed.

Mr. Bandari submits that the appellant is neither the borrower nor the mortgagor or the guarantor of the loan in question but a tenant of the property bearing House No. 43, Govind Nagar (West), Amer Road, Jaipur, comprising of two rooms and one store since 1986 on a monthly rent of Rs. 300/- on behalf of Smt. Geeta Devi Khunteta. He further submits that the said Smt. Geeta Devi had mortgaged the property in question with the Bank in respect of a credit facility and when she defaulted in repayment of the loan, the Bank filed an O.A. which was allowed and an R.C. was issued. He also submits that in the R.C. proceedings, the R.O. put the said property to sale, which was purchased by respondent Nos. 2 and 3 in the public auction held on 4th September, 2012 for Rs. 14.55 lacs and after the confirmation of sale, certificate of sale dated 29th January, 2003 was also issued in their favour. He also submits that the possession of the property was, however, not handed over to the auction purchasers as Smt. Geeta had filed objections against the auction sale and had obtained stay order qua it.

Mr. Bhandari also submits that the objections (No. 4/2007) filed by the Appellant before the R.O. on 3rd December, 2007 under Rule 40 of the Income-tax (Certificate Proceedings) Rules, 1962, were dismissed on 31st January, 2008. It has also been pointed out that the appellant had assailed that order in Writ Petition No. 1183/2008 before the Rajasthan High Court and the Hon'ble Court, vide order dated 7th July, 2008, had set aside the order of the R.O. and directed him to dispose it of afresh after framing the necessary issue and taking the evidence of the parties and allowing them to cross-examine the deponents, if necessary.

Mr. Bhandari further submits that the R.O. thereafter conducted the proceedings and after framing the issue relating to the appellant alleged status as tenant of Smt. Geeta Devi Khunteta and deciding the issue in the negative, dismissed the objections of the appellant by the order dated 5th January, 2010.

Mr. Bhandari also submits that the appellant had challenged the said order in appeal under Section 30 of the RDDBFI Act before the Tribunal below, but the same has been dismissed by the impugned order dated 16th April, 2013.

The contention of Mr. Bhandari is that the R.O. as well as the lower Appellate Tribunal have not properly considered the evidence of the appellant and although the appellant is in continued occupation of the property in question as a lawful tenant since 1986, yet ignoring that circumstance, both the Courts below have erred in taking the view that the appellant is not a tenant in the property in question. He also points out that after the dismissal of the appeal, the R.O., vide order dated 29th April, 2013 has appointed a Receiver and has directed him to take over the possession of the property after issuing a seven-day-notice to the C.D. or anybody found in occupation on her behalf. He submits that until the matters is finally disposed of, the Receiver be restrained from taking the possession over the property in question.

Mr. Sumit Bansal, on the other hand, opposes the contention of Mr. Bhandari and submits that as Smt. Geeta Devi Khunteta had suffered the R.C., respondent Nos. 2 and 3 had purchased the property in question in the auction sale conducted by the R.O. for a sum of Rs. 14.55 lacs and the sale was also confirmed in their favour in 2003 itself. He further submits that Smt. Geeta Devi did not disclose in the objections filed by her that the said property was under the tenancy of the appellant or anyone else. It is also pointed out by him that the property in question was mortgaged in favour of the Bank through a registered mortgage deed wherein Smt. Geeta Devi had stated that she had not transferred the property to anyone and had undertaken that she would not lease it out to anybody. He also points out that the objections filed by Smt. Geeta Devi were dismissed by the R.O. as well as by the lower Appellate Tribunal in appeal and also by the High Court in the writ petition on 14th November, 2007. He contends that the appellant did not assail the confirmation of sale of the property in favour of the respondent Nos. 2 and 3 in 2003 and had filed the objection after four years thereof in 2007.

Mr. Bansal also contends that the onus of proving the issue framed by the R.O. was upon the appellant and though he had filed the affidavits of himself as well as of Smt. Geeta Devi and several others as evidence, yet the R.O. did not find their testimony reliable and found the witnesses interested and the Appellant was also found to be a relative of Smt. Geeta Devi and as such the evidence filed by the appellant has rightly been rejected by the R.O. and the lower Appellate Tribunal. It is also pointed out that the Appellant has not filed the alleged original lease agreement and has also not examined its marginal witnesses. He also contends that the learned R.O. as well as the lower Appellate Tribunal had discussed the evidence adduced by the parties qua the issue at length and it has rightly been held by them that the appellant is not proved to be a lawful tenant of the property in question on behalf of Smt. Geeta Devi. Having considered the submission of the parties' Counsel and looking to the facts and circumstances of the case, I agree with Mr. Bansal that the initial burden of proving the alleged tenancy of the property in question was upon the appellant, which he had miserably failed to discharge. In the absence of the original lease deed and the evidence of Smt. Geeta Devi and the witnesses of the lease deed, the factum of alleged lease is not proved. The rent receipts have also been found to be not reliable and appear to have been prepared in one day. The order impugned has been passed after due consideration of all the relevant facts and circumstances and the evidence on record. It does not appear to be suffering with any infirmity or illegality and the Appeal filed against the same has no force and is liable to be dismissed at this stage of admission.

The appeal is accordingly dismissed.