This order dismisses a writ petition challenging the determination of provisional rent and the refusal to strike off defense in a connected civil matter involving disputed tenancy and escheat property.
The writ petition stands dismissed. The order in the connected petition directing deposit of arrears remains undisurbed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil Writ Petition No. 12529/2021
----Petitioners
Versus
----Respondents
Connected With
S.B. Civil Writ Petition No. 8325/2009
2/1. Hamida Bano W/o Mohd. Faruk, R/o Bapu Colony, Akhaliya
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Circle, Jodhpur.
2/2. Saiyada Bano W/o Mohd. Fakir, R/o Street No. 1, Near Somani College, Jodhpur.
----Petitioners
Versus
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.)
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.)
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.
----Respondents
| For Petitioner(s) | : Mr. Manish Patel |
|---|---|
| For Respondent(s) | : Mr. Narendra Thanvi |
HON'BLE MR. JUSTICE ARUN MONGA
Order
28/11/2023
S.B. Civil Writ Petition No. 8325/2009:
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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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.
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.
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.
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.
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.
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.
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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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.
S.B. Civil Writ Petition No. 12529/2021:
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.
(ARUN MONGA), J
2,3-jayesh/-
Fit for reporting? Yes/ No
2 issues framed by the court
Whether the High Court should interfere in the Rent Controller's order determining provisional rent as an interim measure during pending litigation.
Whether the trial court correctly refused to strike off the defense of the respondents given the stay on the rent deposit order.
1 provisions across 1 enactments
Afzal Miyan @ Nisar Ahmed
Arun Monga
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
