Case: Mohd. Raza &amp; Anr Vs. Geeta @ Geeta Devi

Rule 6 of CPC. 7. We have heard the learned counsel appearing on behalf of the respective parties at length. 8. At the outset, it is required to be noted that as such respondent herein plaintiff filed the suit for possession, mandatory injunction, permanent injunction and mesne profit with respect to the property bearing No.246/4, Ground Floor, East School Block, Mandawali, Delhi against the defendants – appellants herein, claiming to be the owner of the suit property and claiming that defendant No.1 is the tenant and defendant No.1 has sub-let the suit property/premises in favour of defendant No.2. In the written statement, it was the case on behalf of the defendants – appellants herein that defendants are not now the tenant of the plaintiff but the actual owner of the suit property. In paragraphs 1 to 3, it is stated in the written statement as under:- 1. That the present suit is not maintainable as the answering defendants are not now the tenant of the plaintiff but the actual owner of the suit property. The plaintiff sold the suit property in question to the answering defendants for which some documents were also executed by the plaintiff in favour of the answering defendant no. 2/Seema Begum on 15.01.2017 and 29.01.2017, hence the suit of the plaintiff is liable to be dismissed with heavy cost. 2. That the plaintiff has filed a false and fabricated suit by concealing the material and true facts of the case and the plaintiff wants to harass the answering defendants and to grab the earnest money of the answering defendants by filing the present suit. It is submitted that the suit of the plaintiff is not maintainable in the eye of law because this matter is not the suit for possession, mandatory injunction, permanent injunction and mesne profit between the parties but it is the matter of the ownership, cheating and grabbing the money of Rs. 19 Lakhs of the answering defendant and it is the matter of compliance the agreement between the parties which is executed by the plaintiff on 29.01.2017 hence the suit of the plaintiff is liable to be dismissed with cost. 3. That it is submitted that the suit property is absolutely concerned with the defendants. The defendant no. 2/Seema Begum is absolute owner of the suit property and she has every right or interest in the suit property in question. She has purchased the suit property in question and other part of the suit property (measuring area 30 sq. yards and 50 sq. yards) and the defendants had taken the peaceful possession both part of the suit property from the plaintiff. The defendant no. 2 has also filed a case/suit for specific performance of contract, declaration, eviction and permanent injunction against the plaintiff which is pending for adjudication before the Honble Court of Sh. Sanatan Prasad, Ld. ADJ, East, KKD Courts, Delhi Thus from the aforesaid, it is clear that the defendants are claiming the ownership of the suit property. The defendant no.2 is claiming to be in possession as an owner and claiming to be the owner. It can also be seen that the plaintiff has filed the suit as an owner. It is not in dispute and even it is the case on behalf of the defendants that defendant No.2 had instituted the suit for specific performance against the plaintiff with respect to the suit property, meaning thereby there is a clear cut admission that the plaintiff is the owner. 9. It is to be noted at this stage that 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. Unless and until there is a decree passed in her favour and the decree for specific performance is passed and/or the sale deed is executed pursuant to such a decree, she cannot be said to be the owner of the suit property. 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 the written statement in paragraph 1, it is specifically stated by the defendants that the defendants are not now the tenant of the plaintiff but the actual owner of the suit property. As observed hereinabove, till the suit for specific performance is decided in favour of the defendants, more particularly defendant No.2, she cannot be said to be the owner and that therefore the plaintiff – respondent herein continues to be the owner and defendant No.1 continues to be the tenant. Therefore, the aforesaid is rightly treated as an admission on behalf of the defendants with respect to the ownership of the plaintiff and that defendant No.1 is a tenant. Therefore, the High Court as such has rightly passed the decree on admission under Order XII Rule 6 of CPC which in the facts and circumstances of the case cannot be said to be erroneous. However, at the same time, when the substantive suit filed by defendant No.2 against the plaintiff for specific performance is pending, it is to be observed that the decree passed by the High Court by the impugned judgment and order shall always be subject to the outcome of the said suit filed by defendant No.2 against the plaintiff and if ultimately she succeeds in the suit, and a decree for specific performance is passed and the learned Trial Court passes the decree for possession (if prayed), then necessary consequences shall follow and the plaintiff, subject to filing the appeal, shall have to abide by the decree that may be passed in the suit for specific performance. It also goes without saying that any injunction granted by the learned Trial Court in the suit filed by defendant No.2 for specific performance of the contract shall also not be affected unless subsequently the order of injunction if any in favour of defendant No.2 is modified by the learned Trial Court.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]8. At the outset, it is required to be noted that as such respondent herein plaintiff filed the suit for possession, mandatory injunction, permanent injunction and mesne profit with respect to the property bearing No.246/4, Ground Floor, East School Block, Mandawali, Delhi against the defendants – appellants herein, claiming to be the owner of the suit property and claiming that defendant No.1 is the tenant and defendant No.1 has sub-let the suit property/premises in favour of defendant No.2. In the written statement, it was the case on behalf of the defendants – appellants herein that defendants are not now the tenant of the plaintiff but the actual owner of the suit property.Thus from the aforesaid, it is clear that the defendants are claiming the ownership of the suit property. The defendant no.2 is claiming to be in possession as an owner and claiming to be the owner. It can also be seen that the plaintiff has filed the suit as an owner. It is not in dispute and even it is the case on behalf of the defendants that defendant No.2 had instituted the suit for specific performance against the plaintiff with respect to the suit property, meaning thereby there is a clear cut admission that the plaintiff is the owner.9. It is to be noted at this stage that 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. Unless and until there is a decree passed in her favour and the decree for specific performance is passed and/or the sale deed is executed pursuant to such a decree, she cannot be said to be the owner of the suit property. 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 the written statement in paragraph 1, it is specifically stated by the defendants that the defendants are not now the tenant of the plaintiff but the actual owner of the suit property. As observed hereinabove, till the suit for specific performance is decided in favour of the defendants, more particularly defendant No.2, she cannot be said to be the owner and that therefore the plaintiff – respondent herein continues to be the owner and defendant No.1 continues to be the tenant. Therefore, the aforesaid is rightly treated as an admission on behalf of the defendants with respect to the ownership of the plaintiff and that defendant No.1 is a tenant. Therefore, the High Court as such has rightly passed the decree on admission under Order XII Rule 6 of CPC which in the facts and circumstances of the case cannot be said to be erroneous.However, at the same time, when the substantive suit filed by defendant No.2 against the plaintiff for specific performance is pending, it is to be observed that the decree passed by the High Court by the impugned judgment and order shall always be subject to the outcome of the said suit filed by defendant No.2 against the plaintiff and if ultimately she succeeds in the suit, and a decree for specific performance is passed and the learned Trial Court passes the decree for possession (if prayed), then necessary consequences shall follow and the plaintiff, subject to filing the appeal, shall have to abide by the decree that may be passed in the suit for specific performance. It also goes without saying that any injunction granted by the learned Trial Court in the suit filed by defendant No.2 for specific performance of the contract shall also not be affected unless subsequently the order of injunction if any in favour of defendant No.2 is modified by the learned Trial Court.