Mrs. Ruby Singh vs Raja Bahadur Motilal Poona Mills Ltd.

Valmiki J Mehta, J.—The challenge by means of this regular first appeal u/s 96 of the Code of Civil Procedure, 1908, is to the impugned judgment and decree dated 11.7.2001 whereby the suit of the Respondent/Plaintiff was decreed against the Appellant/Defendant by holding that the Appellant/Defendant was not the owner of the suit premises being Flat No. 25, 7th Floor, Dakshineshwar Apartment, Hailey Road, New Delhi-1 along with the appurtenants. It has been held that the Appellant/Defendant was not the owner of the subject premises as there is no sale deed executed in terms of Section 54 of the Transfer of Property Act, 1882 in favour of the Appellant by the erstwhile owner.

During the course of hearing, I brought to the notice of counsel for the parties the decision in the case of Asha M. Jain v. Canara Bank 2001 (94) DLT 841, a Division Bench judgment of this Court, which recognized that in Delhi, transfer of property does take place through the usual documentation of an agreement to sell, power of attorney, Will etc. and which documentation transfers right, title and interest in the property. In the present suit, a declaration was claimed by the Respondent/Plaintiff that the Appellant was not the owner of the suit premises, though, the only locus standi of the Respondent/Plaintiff/tenant would have been to, at the very best, deny the claim of the Appellant/Defendant for claim of rent. In fact, even this defence is doubtful inasmuch as u/s 50 of the Transfer of Property Act, 1882, rent which is bonafidely paid to a holder under defective title entitles the person who has actually paid the rent to defend a claim of any other person for rent with respect to the premises.

Counsel for the parties have therefore, agreed that the impugned judgment and decree be set aside and the suit be dismissed. It is agreed that the Appellant is the owner/landlord of the subject premises.

Counsel for the Respondent/Plaintiff however claims that the Respondent was illegally evicted from the premises by means of an ex parte decree, and therefore, the Appellant is guilty of an illegal act. Learned Counsel for the Appellant very vehemently denies this fact and states that in fact the application for setting aside the ex parte decree was dismissed and revision against the said judgment is already pending in this Court as CR No. 110/2005 and CR No. 158/2005.

In view of the above, the appeal is accepted. The impugned judgment and decree is set aside and the suit would stand dismissed. Decree sheet be prepared. However, the issue with regard to whether the Respondent has been legally or illegally evicted from the subject premises is not being pronounced upon by this Court and it will be pronounced upon by the court hearing the aforesaid Civil Revision Nos. 110/2005 and 158/2005. Interim orders passed in this case will stand merged in terms of the today''s judgment. Trial court record be sent back.