Nitin Seth vs Rohit Kumar and Another

Shiv Narayan Dhingra, J.—By this petition under Article 227 of the Constitution of India, the petitioner seeks quashing of order dated 29.3.2004 passed by the learned Rent Control Tribunal dismissing the appeal of the petitioner against the order dated 2.12.2002 of the Executing Court whereby the objections of the petitioner were dismissed.

The relevant facts in brief are that the suit property originally belonged to one Shri V.S. Bhargava, who purchased a free hold plot of land measuring approximately 302 sq. yards bearing No. 190 Block C, G.K. Part I, New Delhi from DLF Housing and Construction Private Limited vide a duly registered sale deed dated 26.5.1962. Mr. V.S. Bhargava constructed a single storey building on this plot after getting the building plan sanctioned from MCD.

Mr. V.S. Bhargava died childless on 12.2.1972, his wife had pre- deceased him. He had made a ''Will'' in respect of this property in favour of his nephew Mr. Rohit Kumar (respondent No. 1 herein) and his brother Mr. H.S. Bhargava. After the death of Mr. V.S. Bhargava, Mr. H.S. Bhargava let out this premises to one Mr. K.M. Virmani for a period of 2 years in September 1972 after obtaining permission from the Additional Rent Controller u/s 21 of the Delhi Rent Control Act, 1958. Mr. K.M. Virmani did not vacate the premises after two years and the said premises continued to be in possession of Mr. K.M. Virmani. As the records reveal, Mr. K.M. Virmani parted with the possession of the suit property and created an unauthorized sub-letting in favour of one Mr. M.M. Bhandari in September, 1998. The respondents herein filed an eviction petition u/s 14(1)(a), (b),(d) and (h) of the Delhi Rent Control Act against Mr. K.M. Virmani and Mr. M.M. Bhandari. Mr. M.M. Bhandari died during the pendency of said eviction proceedings and his legal heirs were brought on record. While the eviction proceedings were going on, on the scene emerged one Ms. Kum Kum Jain. She made an application under Order 1 Rule 10 CPC for her impleadment in the eviction case on 3.5.2000. She claimed to be the owner of the property. She also made an application on 27.3.2000 to MCD for sanctioning of the building plan for construction of this property. She claimed to have taken possession of the property from widow of Mr. M.M. Bhandari named Mrs. Sneh Bhandari on 17.4.2000. On the same day, she took an advance of Rs. 10 lac from the petitioner herein under an agreement to sell the property to the petitioner. Thereafter, she had made above application under Order 1 Rule 10 CPC before the ARC. She also filed a Civil Suit on 8.5.2000 against the respondent herein for declaration that she was the owner of the property on the basis of a registered sale deed in her favour alleged to have been executed by late Shri V.S. Bhargava on 4.3.1971. Around November, 2000 the respondents herein came to know that the petitioner herein had demolished the old construction and was in the process of making new construction thereon.

Aggrieved by this, respondent No. 1 on 21.11.2001 filed a suit for permanent injunction against the petitioner herein as well as against Mr. K.M. Virmani and others and sought an injunction against them that they should be restrained from raising any new construction in the suit property. In that suit, the petitioner herein had taken the stand that he had purchased the said property from Ms. Kum Kum Jain on 31.8.2000 for a sale consideration of Rs. 30,75,000/- by virtue of a sale deed executed in his favour on the same day and alleged that he had taken possession of the suit property from Ms. Kum Kum Jain on 31.8.2000. The learned Additional District Judge vide order dated 22.11.2000 directed the parties to maintain status quo in relation to the suit property till disposal of the suit. Aggrieved by the said order, the petitioner herein filed an appeal before the Delhi High Court being FAO No. 96/2000. Delhi High Court vide order dated 3.4.2002 confirmed the status quo order however, during pendency of this FAO, the High Court in order to come at a right conclusion had made detailed enquiry into the facts. The High Court vide order dated 17.4.2001 had directed the petitioner herein to produce the original title deeds of the said property on the basis of claim of ownership was staked and directed an investigation to be done by the Crime Branch of Delhi Police regarding genuineness of the said documents. The Crime Branch made an enquiry and got the documents examined from forensic lab and submitted its enquiry report dated 22.1.2002 to the High Court. The enquiry report revealed that sale deed dated 4.3.1971 in favour of Ms. Kum Kum Jain and the sale deed dated 31.8.2000 in favour of the petitioner, both were forged and fabricated documents and even the stamps of Sub-Registrar were forged. The petitioner herein made an application before the High Court for impleadment of Ms. Kum Kum Jain as a party to the case on the ground that he was cheated by Ms. Kum Kum Jain, however, this request was not allowed by the High Court.

While the FAO No. 96/2000 was pending in the High Court, the eviction proceedings against Mr. K.M. Virmani and Mr. M.M. Bhandari continued. Ms. Kum Kum Jain did not pursue her application under Order 1 Rule 10 CPC for impleadment before the learned ARC and her Counsel made a statement that he had no instructions, this application was dismissed by the ARC. The learned ARC vide its order dated 21.8.2001 dismissed the eviction petition of the respondent u/s 14(1)(b)(d) and (h) of the DRC Act for want of sufficient corroborative material. However, the Court allowed the petition u/s 14(1)(a) of the DRC Act and the case was ordered to be listed after one month to see if the compliance of the order u/s 15(1) of the Act was done. The learned Additional Rent Controller vide order dated 26.9.2001 passed an eviction order in respect of the said premises in favour of the respondents and directed Mr. K.M. Virmani and the LRs of Mr. M.Bhandari to handover the vacant possession of the said property to the respondents. Since the vacant possession was not handed over, the respondents filed an execution application on 13.9.2002. The petitioner herein filed objections u/s 25 of the DRC Act before the ARC (Executing Court) on 21.10.2001 and prayed for setting aside the eviction order dated 26.9.2001. These objections were dismissed and the appeal against the order of the ARC was also dismissed by the learned ARCT hence this petition.

Before the Tribunal, it was the case of the petitioner that since he was a bona fide purchaser of the suit property he could not be dispossessed from the said property and argued with great force that the Trial Court committed an error of law in dismissing the objections and passing an evicting order in favour of the respondent. The plea of the petitioner was that the property was purchased by the petitioner from Ms. Kum Kum Jain on 31.8.2000. The petitioner also filed an application under Order 41 Rule 27 CPC for permission to adduce additional evidence to show that prior to purchase of the said property by the petitioner, the said property was in possession of late Mr. M.M. Bhandari and after his death, it was in possession of his LRs. The Tribunal dismissed the said application finding that it was not a case where additional evidence was required. Another application was made by the petitioner under Order 1 Rule10 CPC for impleadment of Ms. Kum Kum Jain. This application was dismissed since Ms. Kum Kum Jain herself had made an application under Order 1 Rule 10 CPC before the ARC but did not pursue the same and allowed it to be dismissed for non-prosecution. The Tribunal considered all the pleas raised by the petitioner before it and found all of them untenable. The learned Tribunal observed that a concerted effort was being made by the petitioner in collusion with the so-called ''Ms Kum Kum Jain'' to grab the property of the respondent. The facts itself disclosed the telltale story about the efforts to grab the property.

The petitioner has assailed the decision of the learned ARC as well as of the Tribunal on the ground that the learned ARC committed an error of law in dismissing the objections of the petitioner against the eviction order by holding that Rent Controller could not decide the question of title of the property. The petitioner urged that the Executing Court ought to have decided the question of title over the said property. The petitioner was a bona fide purchaser of the said property and he was not bound by the eviction order.

I consider that the petitioner''s contention of being a bona fide purchaser itself is a baseless contention. Ms. Kum Kum Jain from whom the petitioner alleges to have purchased the property had no title over the property. She emerged on the scene for the first time on 27.3.2000, when she made an application to MCD for sanctioning of the building plan for construction of the suit property. It seems that this Ms. Kum Kum Jain was either a fictitious person or a stooge of the petitioner, who was not traceable at all. An FIR was registered against Ms. Kum Kum Jain and she is stated to be absconding. The petitioner himself does not know the whereabouts of Ms Kum Kum Jain. This Ms. Kum Kum Jain never appeared before the Court. The alleged sale deed in favour of Ms. Kum Kum Jain has been found to be a forged document on an enquiry conducted by this Court. The petitioner at that time had sought impleadment of the staff of Sub-registrar in the criminal case to be lodged for cheating him. However, the petitioner did not pursue any other remedy either of lodging a criminal complaint against the staff of Sub-Registrar, who allegedly cheated him in collusion with Ms. Kum Kum Jain or against Ms Kum Kum Jain. The petitioner also had not filed any title suit or suit for damages or for recovery of any amount from Ms. Kum Kum Jain, after it was revealed by the enquiry conducted at the behest of this Court that the documents of title fished out and relied upon by the petitioner as well as by Ms. Kum Kum Jain were forged documents. This would only reveal that petitioner''s claim of being bona fide purchaser was a bogus claim based on the forged documents. Can a person on the basis of certain forged documents claim title over a property and claim himself a bona fide purchaser ''An argument is advanced that the Court cannot come to a conclusion merely on the basis of enquiry that the petitioner was not the bona fide purchaser. The title documents of the petitioner have not been held to be void by any competent Court. I consider that in such like situation where the petitioner''s contention of being a bona fide purchaser was tested by this Court in appeal filed by the petitioner and an enquiry was held and it was found out in that enquiry that the documents were forged, it was for the petitioner to establish that the documents of the petitioner were not forged and in fact genuine. The petitioner could have established this by filing a title suit calling Ms. Kum Kum Jain in the witness box and the calling the Sub-Registrar office in the Court and proving that the documents were duly registered and consideration had moved. In this case, not only the stamp papers were found forged, even the Sub-Registrar office seals were found forged in the report of the CFSL. Under these circumstances, the petitioner''s contentions that he should be considered as a bona fide purchaser and the tile should be decided are baseless.

Even otherwise, the jurisdiction of the Rent Controller is very limited. The dispute before the Rent Controller is between the landlord and tenant. If any other person claims title over the property he has to establish the title by way of an independent suit. The Rent Controller is not a Civil Court and is having limited jurisdiction to decide matters between tenant and landlord that fall within the purview of the DRC Act. The Rent Controller cannot go beyond its jurisdiction and cannot decide the title and whether a person was a bona fide purchaser or not. The decree of Rent Controller is applicable not only to a tenant but to all those persons who derived possession from the tenant or a sub-tenant.

The Counsel for the petitioner also argued that the order passed by the learned Tribunal was based on wholly improper appreciation of facts and circumstances and the material existing on record and it was bad in law. The ambit and scope of jurisdiction and power of High Court under Article 227 is well defined through a catena of judgments of the Supreme Court and this Court. In the case of Chandavarkar Sita Ratna Rao Vs. Ashalata S. Guram, , it was held that in exercise of jurisdiction under Article 227 of the Constitution, the High Court should not go into the question of facts which depend upon appreciation of evidence. The proposition has stood the test of time and has been reaffirmed by the Supreme Court and this Court from time to time. In a recent case, i.e. Koyilerian Janaki and Ors. v. Rent Controller (Munsif) Cannore and Ors., (2000) 9 SCC 406 , Supreme Court observed as under:

Further we are in agreement with the argument of learned Counsel for the appellant that it was not appropriate for the High Court to have interfered with the order passed by the District Judge in exercise of its power under Article 227 of the Constitution. The proceedings in the present case arose under a special Act governing the landlord and tenant relationship and disputes. The Act does not provide any second appeal or revision to the High Court. The purpose behind for not providing such remedy is to give finality to the order passed under the Act. The power under Article 227 is exercisable where it is found by the High Court that due to a certain grave error an injustice has been caused to a party. For this reason also, the judgment of the High Court deserves to be set aside.

The above view of the Supreme Court was reaffirmed in the later judgment in Ouseph Mathai and Others Vs. M. Abdul Khadir, . Thus, the settled legal position is that in a petition under Article 227 of the Constitution of India, the High Court has primarily to see whether the learned Tribunal had jurisdiction to deal with the matter and if so whether the impugned order is vitiated with any material irregularity. In other words, the High Court is not concerned with the correctness of the decision but its concern is limited to the correctness of decision making process. Viewed from this angle and even otherwise, the finding reached by the learned ARC as well as by the learned Tribunal, the impugned orders cannot be faltered on any ground and are not interferable by this Court in exercise of power under Article 227. This petition is liable to be dismissed being devoid of merits and is hereby dismissed.