Dismissed

Afzal Miyan @ Nisar Ahmed S/O Late Shri Munshi Noor Mohammed Ji v. Basheer Khan

Rajasthan HC28 Nov 2023CW/12529/2021

Case brief

AI extract

What is this about?

In a connected writ petition, the High Court upheld the direction to deposit arrears of rent pending determination of the underlying eviction suit. The Court dismissed a challenge to striking off the defense of non-petitioners, noting that the trial remained stayed and the tenant status was yet to be adjudicated by the Rent Controller.

What did the court decide?

Writ petitions dismissed; direction to deposit arrears of rent pending final outcome of the eviction suit upheld.

Afzal Miyan @ Nisar Ahmed S/O Late Shri Munshi Noor… — Property and Title | Rajasthan HC (2023)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 12529/2021

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Afzal Miyan @ Nisar Ahmed S/o Late Shri Munshi Noor Mohammed Ji, Through His Legal Representatives-

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Smt. Gulnaar @ Gulnaz Begum W/o Late Shri Afzal Miyan @ Nisar Ahmed, By Caste Musalman, Resident Of Jahangirbad, Bhopal (M.p.) Through Power Of Attorney Holder Lal Mohammed Sheikh S/o Late Shri Saiduddin Sheikh, Aged About 41 Years, By Caste Musalman, Resident Of Miyon Ka Ghar, Near Rajmahal School, Gulab Sagar, Jodhpur.

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Nazneen D/o Late Shri Afzal Miyan @ Nisar Ahmed, By Caste Musalman, Resident Of Jahangirbad, Bhopal (M.p.) Through Power Of Attorney Holder Lal Mohammed Sheikh S/o Late Shri Saiduddin Sheikh, Aged About 41 Years, By Caste Musalman, Resident Of Miyon Ka Ghar, Near Rajmahal School, Gulab Sagar, Jodhpur.

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Nasir Khan S/o Late Shri Afzal Miyan @ Nisar Ahmed, By Caste Musalman, Resident Of Jahangirbad, Bhopal (M.p.) Through Power Of Attorney Holder Lal Mohammed Sheikh S/o Late Shri Saiduddin Sheikh, Aged About 41 Years, By Caste Musalman, Resident Of Miyon Ka Ghar, Near Rajmahal School, Gulab Sagar, Jodhpur.

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----Petitioners

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Versus

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Basheer Khan S/o Late Shri Babu Khan, By Caste Sipahi Musalman, Resident Of Opposite Miyon Ki Masjid, Nagori Gate, Jodhpur. (Raj.)

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Smt. Gulfam, By Caste Musalman, Resident Of Opposite Miyon Ki Masjid, Nagori Gate, Jodhpur. (Raj.)

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----Respondents

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Connected With

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S.B. Civil Writ Petition No. 8325/2009

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Basir Khan S/o Shri Babu Khan, R/o Opposite Meeya Ki Masjid, Nagori Gate Road, Jodhpur.

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LR/s of Haseens W/o Shri Babu Khan

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2/1. Hamida Bano W/o Mohd. Faruk, R/o Bapu Colony, Akhaliya

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(2 of 6) [CW-12529/2021]

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[2023:RJ-JD:40981]

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Circle, Jodhpur.

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2/2. Saiyada Bano W/o Mohd. Fakir, R/o Street No. 1, Near Somani College, Jodhpur.

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----Petitioners

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Versus

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LR’s of Afjal Meeya @ Nisar Ahmed

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1/1. Smt. Gulnar W/o Late Sh. Afzal Miyan @ Nisar Ahmed, R/o Jodhpur at present C/o Shri Avrar Ali, Street No. 4, House No. 4 Street of Pal Sahib, Jahangirvad, Bhopal (M.P.)

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1/2 Naznen D/o Late Sh. Afzal Miyan @ Nisar Ahmed, R/o Jodhpur at present Bhopal C/o Shri Avrar Ali, Street No. 4, House No. 4, of Pal Sahib, Jahangirvad, Bhopal (M.P.)

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1/3 Nasir S/o Late Sh. Afzal Miyan @ Nishar Ahmed, R/o Jodhpur at present Bhopal C/o Shri Avrar Ali, Street No. 4, House No. 4, Street of Pal Sahib, Jahangirvad, Bhopal (M.P.) 2. Smt. Gulfam Reva W/o Mohammed Hanif, R/o Meeya Ki Masjid, Nagori Gate Road, Jodhpur.

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----Respondents

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For Petitioner(s)	: Mr. Manish Patel
For Respondent(s)	: Mr. Narendra Thanvi

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HON'BLE MR. JUSTICE ARUN MONGA

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Order

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28/11/2023

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S.B. Civil Writ Petition No. 8325/2009:

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Petitioners, by way of present writ petition, have assailed the order dated 10.07.2009 (Annexure-9) passed by learned Appellate Court dismissing the appeal filed against the order dated 26.07.2006 (Annexure-8), whereby, the learned lower Court ordered the petitioners herein to deposit the rent amount.

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Succinct facts first, as pleaded in the writ petition.

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2.1 One Shri Saifudeen Sheikh, in capacity of a power of attorney holder, has filed a suit for eviction and recovery of rent in

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the name of the landlord/plaintiff Afzal Meeya @ Nisar Ahmed on the ground that the property in question was rented out, and it is stated that the petitioners-tenants have not paid the rent after the death of late Sh. Babu Khan, thereby defaulting in the payment of rent.

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2.2 The non-petitioner/plaintiff issued legal notice to defendant/tenant and after service of notice, the defendant denied the relation of landlord and tenant and contended that they have already purchased the property in question and are the sole owners of the said property.

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2.3 The petitioners/defendants submitted an amended written statement and averred that the allegations of the plaintiff are entirely false. It was argued that Shri Afzal Meeya is not the son of either Hamida Begum or Late Munsi Noor Mohd. The family of Munshi Noor Mohd. migrated to Pakistan before 1968. The petitioner also submitted that Late Babu Khan, the father of the defendant, purchased the property in question and paid Rs. 5000/-. Subsequently, the remaining amount was paid as part payment on 01.05.1968. However, before the execution of the sale deed, Munsi Noor Mohd. passed away, due to which the sale deed could not be executed, nor was it registered.

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2.4 The petitioners further averred that the family of Late Munsi Noor Mohd. migrated to Pakistan, and no legal heirs are surviving in India. In such circumstances, after due inquiry, the property was declared as Escheats property.

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2.5 The District Collector issued a notice to Babu Khan, father of petitioners/defendants, demanding the relevant papers regarding the ownership of the property in question. The value of the

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property was determined as Rs. 10/- per square foot and was subsequently approved by the Collector. Late Shri Babu Khan, also submitted an application before the Collector, contending that he is ready to deposit the cost as assessed by the Evacuee Department, i.e., Rs. 15,000/- in installments.

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2.6 Learned Court below, vide an order dated 26.07.2006, has determined the provisional rent under Sub-section 3 of Section 13 of the Act of 1950 and ordered that if the determined rent is deposited by the tenant/petitioners, then the landlord would not be entitled to withdraw from the Court, and it shall remain in the Court till final adjudication.

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2.7 Petitioners preferred an appeal against the said order of the learned Court below, contending that the learned Court below has committed an error of law as the property in question has already been determined as Escheats property, and the custodian department has already decided to transfer the property in question in favor of Late Shri Babu Khan. Non-petitioner also filed cross-appeal against the order dated 26.07.2006. The learned appellate Court rejected the appeal of the appellant and allowed the cross-appeal of the non-petitioner vide order dated 10.07.2009. Hence, this writ petition. 3. Learned counsel for the petitioners argues that the learned Court below has arrived at an erroneous conclusion that the defendants are tenants in the disputed premises, reason being that the relationship of tenant-landlord was never established, and the non-petitioner has not submitted any rent receipt regarding the payment of rent. Additionally, the fact that plaintiff Afzal is not the son of Late Munshi Moor Mohd. raises doubts, and the so-

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called power of attorney holder has filed the present suit for eviction in the name of an imaginary person, Afzal Meeya. Hence, he prays that the order passed by the learned lower Court be quashed.

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I have heard the rival contentions of the learned counsels. What transpires is that the petitioners are aggrieved by the determination of the stipulated rent by way of an interim order during the pendency of the rent suit before the learned Rent Controller. Defense of the petitioners is that they are not tenants. They claim to be patta holders and are thus legitimately in possession of the property in question in that capacity.

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Be that as it may, the status of the tenant who claims himself to be the patta holder is a matter of adjudication before the learned Rent Controller and depending upon the findings thereof, the maintainability of the eviction petition filed by the plaintiff-landlord will have to be proceeded in accordance with law. In the premise, since this petition was filed sometime in the year 2009, and merely because the same has remained pending all these years, both the learned counsels informed that the proceedings before the learned Rent Controller have not been decided.

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In the premise, in order to meet the ends of justice and in the larger interest for proceeding further with the trial, the petition herein is disposed of with the direction to the petitioners to deposit the arrears of rent as per the impugned order before the learned Rent Controller which shall be kept in interest-bearing account, and the disbursement of the same shall be subject to the final outcome of the pending petition. Needless to say, if

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eventually the eviction petition is not found maintainable, in view of the defense of the petitioners, the amount so deposited shall be refunded to the petitioners.

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The writ petition is disposed of accordingly.

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Pending application(s), if any, shall also stand disposed of.

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S.B. Civil Writ Petition No. 12529/2021:

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Having passed a detailed order in the connected petition i.e. S.B. Civil Writ Petition No. 8325/2009, no grounds for interference in the present proceedings are made out. Learned trial Court has not committed any irregularity in dismissing the prayer for striking off the defense of the respondents since the order, vide which, he was required to deposit the rent, was stayed by this Court. The petitioner could not have taken the defense of the non-deposit of the rent, by virtue thereof.

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Accordingly, the trial Court has rightly observed that striking off the defense of the respondents would result in unjust consequences.

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Hence, no ground for interference is made out and the petition stands dismissed accordingly.

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Pending application(s), if any, shall also stand disposed of.

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(ARUN MONGA), J

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2,3-jayesh/-

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Fit for reporting? Yes/ No

Afzal Miyan @ Nisar Ahmed S/O Late Shri Munshi Noor Mohammed Ji v. Basheer Khan

Case brief

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Afzal Miyan @ Nisar Ahmed S/O Late Shri Munshi Noor Mohammed Ji v. Basheer Khan

Case brief

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What did the court decide?

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