Mohd. Raza vs Geeta @ Geeta Devi on 4 October, 2021


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Supreme Court of India

Mohd. Raza vs Geeta @ Geeta Devi on 4 October, 2021

Author: M.R. Shah

Bench: M.R. Shah, A.S. Bopanna

                                                                            REPORTABLE

                                    IN THE SUPREME COURT OF INDIA
                                     CIVIL APPELLATE JURISDICTION

                                     CIVIL APPEAL NO.6098 OF 2021


         Mohd. Raza & Anr.                                                   ..Appellant (S)

                                                 VERSUS

         Geeta @ Geeta Devi                                                ..Respondent (S)




                                               JUDGMENT

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 14.11.2019 passed by the High

Court of Delhi at New Delhi in Civil Revision Petition No.175

of 2019, by which the High Court has allowed the said civil

revision petition by quashing and setting aside the order

dated 27.07.2019 passed by the learned Trial Court and

Signature Not Verified
consequently passed a decree of eviction on admission under
Digitally signed by R
Natarajan
Date: 2021.10.04
16:15:24 IST
Reason:

Order XII Rule 6 of CPC, the original defendants have

preferred the present appeal.

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2. The facts leading to the present appeal in nutshell are as

under:­

2.1 That the respondent – original plaintiff had instituted Civil

Suit No.805 of 2018 against the original defendants –

appellants herein in the court of Senior Civil Judge, (East)

Karkardooma, Delhi 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 (hereinafter referred to as 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defendant No.1 has been revoked/terminated by the plaintiff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. Thus the plaintiff claimed the ownership and

claimed that original defendant No.1 is the tenant.

2.2 At this stage, it is required to be noted that the defendants

filed the written statement (the contents of the same shall be

dealt with herein below). After the written statement filed on

behalf of the defendants, the plaintiff filed an application

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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. The said application was opposed on behalf of

the defendants. A detailed reply was filed under Order XII

Rule 6 of CPC on behalf of the defendants. That thereafter

the learned Trial Court dismissed the said application vide

order dated 27.07.2019 by observing that from the perusal of

written statement filed by the defendants, 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.

3. Feeling aggrieved and dissatisfied with the order passed by

the learned Trial Court dated 27.07.2019, dismissing the

application under Order XII Rule 6 of CPC and refusing to

pass the decree on admission, the plaintiff – respondent

herein preferred the revision petition before the High Court.

By the impugned judgment and order, the High Court has

allowed the said revision application and quashed and set

aside the order passed by the learned Trial Court dismissing

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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. At this stage, it is

required to be noted that in the written statement, it was the

specific case on behalf of the defendants – appellants herein

that defendant No.2 is the absolute owner of the suit

property and has paid a sum of Rs.19 lakhs to the plaintiff

and therefore she is in possession of the suit property as an

owner. However, it is to be noted that defendant No.2 had

instituted a suit against the plaintiff for specific performance

of the contract/agreement on the basis of which defendant

No.2 is claiming to be the owner of the suit property and the

said suit is still pending.

4. Feeling aggrieved and dissatisfied with the judgment and

order passed by the High Court, the original defendants have

preferred the present appeal.

5. Shri Sanobar Ali, learned counsel appearing on behalf of the

appellants – original defendants, has vehemently submitted

that in the facts and circumstances of the case the High

Court has materially erred in passing a decree on admission

under Order XII Rule 6 of CPC. It is submitted that the High

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Court has failed to appreciate and 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. It is submitted that

therefore in absence of any clear and unambiguous

admission, the plaintiff shall not be entitled to the decree on

admission. Reliance is placed upon the decision of this court

in the case of Himani Alloys Ltd. v. Tata Steel Ltd. reported in

(2011) 15 SCC 273.

5.1 It is further submitted by the learned counsel appearing on

behalf of the appellants that not only there are no specific

admissions on the part of the defendants that the plaintiff is

the owner of the suit property, but 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.

5.2 It is further submitted by the learned counsel appearing on

behalf of the appellants that even otherwise the substantive

suit filed by defendant No.2 against the plaintiff for specific

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performance of the contract to sell is pending before the

learned Trial Court and that there is an injunction in favour

of defendant No.2 – plaintiff in that suit.

6. The present appeal is vehemently opposed by Shri Harsh

Kumar, learned counsel appearing on behalf of the

respondent – original plaintiff. It is submitted that in the

facts and circumstances of the case and considering the

averments in the written statement, it can be seen that there

is a clear admission on the part of the defendants that the

plaintiff is the owner. He has taken us to the relevant

averments in the written statement filed on behalf of the

defendants – appellants herein.

6.1 It is submitted that it is the case on behalf of the defendants

more particularly defendant No.2 that she is the owner of the

suit property, therefore she is in possession of the suit

property as an owner. It is submitted that defendant no.2 is

claiming the ownership on the basis of the agreement to sell.

It is submitted that agreement to sell does not confer

ownership at all. 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

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performance of the contract has been passed. It is submitted

that even as per the case of defendant No.2 the suit for

specific performance is pending.

6.2 It is submitted that if the written statement as a whole is

considered, in that case there is an admission on the part of

the defendants that plaintiff is the owner and that even the

tenancy in favour of defendant No.1 also has been admitted.

However, it is the case on behalf of defendant No.2 that she

is the owner and as an owner she is in possession which has

no legal basis. It is submitted that therefore in the facts and

circumstances of the case the High Court has rightly passed

a decree on admission under Order XII 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

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tenant and defendant No.1 has sub­let 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.

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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 Hon’ble 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

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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.

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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.

10. 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 subject to the

observations made in earlier paragraph No. 9. In the facts

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and circumstances of the case there shall be no order as to

costs.

…………………………………J.

(M. R. SHAH)

…………………………………J.

(A. S. BOPANNA)
New Delhi,
October 4th, 2021

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