Purshottam Das v. Prema Devi — 1984 DIGILAW 663 (ALL)

JUDGMENT K. P. Singh, J. 1. This is a defendant's writ petition arising out of a suit for ejectment and recovery of mesne profits. 2. Brief facts giving rise to the present writ petition are that the plaintiffs-opposite parties nos. 1 and 2 had filed suit against the defendant-petitioner and Shri Virendra Bahadur Singh on the allegations that Shri Virendra Bahadur Singh was a tenant of the room in question in premises no. 67/13, Daulatganj, Kanpur, at the rate of Rs. 110/- per month. He was in arrears of rent from 13-10-1971 to 11-2-1973, hence a notice of demand and ejectment was served upon him and despite service of notice he did not pay rent, hence the suit. In paragraph 7 of the plaint (Annexure II attached with the writ petition) it has been averred that the defendant petitioner was asserting that he was tenant of the accommodation in dispute and that he had deposited rent under Section 30 of U. P. Act No. 13 of 1972 but according to the plaintiffs-opposite parties he was not tenant of the accommodation in dispute and his possession was over the accommodation in dispute either with leave or licence of the defendant no. 1 (Virendra Bahadur Singh) or the defendant petitioner was sub-tenant. Since the opposite party no. 4 in the present writ petition was recognizing the claim of the defendant petitioner, hence he was impleaded as defendant no. 3 in the suit. The defence in the suit was that the defendant-petitioner was tenant of the accommodation in dispute and that Virendra Bahadur Singh had no concern with the accommodation is dispute on the date of the purchase of the permises no. 67/13 Daulat Ganj, Kanpur by the plaintiffs opposite parties. It was asserted that the defendant petitioner was really a tenant of the accommodation in question; that he had deposited rent under Section 30 of U. P. Act. No. 13 of 1972 and nothing was due in respect of the accommodation in question ; that the plaintiffs' suit was malafide and collusive ; that the defendant petitioner was neither a licencee nor sub-tenant of Virendra Bahadur Singh; that there was no cause of action for the suit and that the Small Causes Court had no jurisdiction to try the suit. Various other pleas were taken to negative the claim of the plaintiffs-opposite parties as is evident from Annexure III attached with the writ petition. 3. Both the courts below have decreed the plaintiffs' suit and aggrieved by their judgments the defendant-petitioner has approached this Court under Article 226 of the Constitution. 4. Before me the plaintiffs-opposite parties have been represented through Shri Raja Ram Agarwal, a senior advocate of this Court. Counter affidavit and rejoinder affidavit have been exchanged between the parties. I have heard the counsel for the parties at a great length. 5. The learned counsel for the petitioner Shri K. M. Dayal has contended that the courts below have patently erred in not holding the defendant-petitioner a tenant of the accommodation in question. According to him inadmissible documents have been referred to by the courts below in negativing the claim of the defendant-petitioner. He has emphasized that the contents of the sale deed in favour of the plaintiffs-opposite parties were wrongly relied upon against the defendant-petitioner while holding that Virendra Bahadur Singh was tenant of the accommodation in question. It has also been stressed that the reply of Virendra Bahadus Singh to the notice served upon him was wrongly treated as evidence against the claim of the defendant-petitioner. The entry in Bahi Khata proving the tenancy of the petitioner in the premises in question was wrongly discarded by the courts below. He has also emphasized that in the circumstances of the present case the plaintiffs-opposite parties have failed to prove that the defendant-petitioner was in possession over the accommodation in question either with the leave or licence of Virendra Bahabur Singh or as his sub-tenant, yet the courts below have decreed the plaintiff's suit. He has also suggested that even if the defendant-petitioner failed to prove the tenancy set up by him the possession of the defendant-petitioner would be that of a trespasser and that the Small Causes Court would have no jurisdiction to evict the petitioner in the circumstances of the present case. 6. The learned counsel for the plaintiffs-opposite parties has submitted in reply that the courts below have correctly appreciated the facts and circumstances involved in the case and they have taken relevant and admissible evidence into account while negativing the claim of the defendant-petitioner. 6. The learned counsel for the plaintiffs-opposite parties has submitted in reply that the courts below have correctly appreciated the facts and circumstances involved in the case and they have taken relevant and admissible evidence into account while negativing the claim of the defendant-petitioner. He has suggested that the possession of the defendant-petitioner was on behalf of Virendra Bahadur Singh in the circumstances of the present case and the claim of the present petitioner has rightly been negatived by the courts below. He has also emphasised that even if the defendant-petitioner is treated as a trespasser in the accommodation in question, the plaintiffs' suit was rightly decreed in view of the ruling reported in J.J. Panchauli v. Shri Dharji, AIR 1984 Allahabad 130. He has emphasized that the Small Causes Court had jurisdiction to deal with the claims of the parties in the circumstances of the present case. He has also suggested that by the impugned judgments substantial justice has been done between the parties and this Court cannot act as an appellate court, hence even if there are certain irregularities or illegalities in appraising the evidence on record, the impugned judgments need not be quashed. It is note-worthy that both the parties have cited a large number of rulings in support of their contentions but for the purpose of the present writ petition it is not necessary to deal with various rulings cited at the bar. In my opinion, this writ petition deserves to be allowed on a short ground. 7. In order to get relief in the suit for ejectment against the defendant, a heavy burden lies upon the plaintiff to prove the allegations made in the plaint Paragraph 7 of the plaint reads as below " That in the meanwhile the defendant no. 2 began to assert that he is tenant of the accommodation in dispute in his own right and deposited the rent under Section 30 of U. P. Act No 13 of 1972 in court in spite of objections that the defendant no. 2 is not the tenant of the accommodation in dispute but is in occupation of the accommodation in dispute either with the leave ana licence of the defendant no. 1 or as sub tenant of defendant no. 1 who has illegally sub-let the accommodation to defendant no. 2. 8. 2 is not the tenant of the accommodation in dispute but is in occupation of the accommodation in dispute either with the leave ana licence of the defendant no. 1 or as sub tenant of defendant no. 1 who has illegally sub-let the accommodation to defendant no. 2. 8. The trial court in its judgment dated 17-8-1983 has observed as below :- "............Purushottam Das prativadi no. 2 is Avas Men kabhi kirayedar nahin rahe. Usne nyayalaya men jo kiraya jama kiya hai usase use koi madad nahin milti hai. Vadi prativadi ki oar se tark diya gaya ki prativadi no. 2 Purushottam Das ko kyon pakshkar Banaya gaya hai Meri rai men Purushottam Das ko isliye pakshkar banaya gaya hai ki won galat tarike se vivadit avas men rah raha hai. Agar usko pakshkar nahin banaya jata to woh nishchay hi nishpadan ki karyawahi men avarodh utpanna karta. Atah usko pakshkar banaya jana avashyak tha Vadi ne aisa karke sahi karya kiya hai. Is parkar se vadi ka vad prativadigan ke viruddha kayam savyay hone yogya hai." It is note-worthy that the trial court has failed to record a categorical finding to the effect that the defendant petitioner was in possession over the accommodation in question either as a sub-tenant of Virendra Bahadur Singh or with his leave or licence. In my opinion unless the trial court arrived at the conclusion that the defendant-petitioner's possession was through Virendra Bahadur Singh, it could not grant a decree of ejectment against the defendant-petitioner to the plaintiffs-opposite parties. Therefore the trial court patently erred in decreeing the plaintiffs' suit for ejectment against the defendant-petitioner at least. 9. The revisional court in its judgment dated 14-2-1984 has also failed to record a categorical finding in what capacity the defendant petitioner occupied the accommodation in question. It is not disputed that the defendant petitioner is really in possession over the accommodation in question. Even if the plea of tenancy raised by the defendant petitioner fails, the plaintiffs-opposite parties cannot get a decree of ejectment against the defendant petitioner unless they establish the ground on which they seek ejectment of the defendant petitioner. My attention was drawn to the following findings recorded by the revisional court:- "It was his bounden duty to have established as to when he became tenant, who inducted him as tenant, what were the terms and conditions of tenancy etc. My attention was drawn to the following findings recorded by the revisional court:- "It was his bounden duty to have established as to when he became tenant, who inducted him as tenant, what were the terms and conditions of tenancy etc. but he did not do so. Therefore, if the plaintiffs proceeded against the real tenant Virendra Bahadur Singh and sought for the eviction of defendant no. 2 also alleging that the main tenant Virendra Bahadur Singh continued in possession through defendant no. 2 revisionist. They cannot be said to have committed any wrong. " " I may add here that even if for a moment the case of the sub-letting is not believed or ignored the result will remain the same because the actual tenant Virendra Bahadur Singh was liable to be evicted even on the ground of default and if he was in continuous possession through defendant no 2/revisionist, then in that circumstance the defendant no 2/revisionist also was bound to be evicted through the decree executed against Virendra Bahadur Singh, even if the suit was filed against all the persons concerned to avoid complications which was all the more better." 10. It has been emphasized before me that from the above quoted findings of the revisional court it can be easily inferred that the revisional court came to the conclusion that the defendant petitioner was in possession on behalf of Virendra Bahadur Singh. I think that the suggestion made by the learned counsel for the contesting opposite parties cannot be accepted in the absence of clear and categorical finding by the revisional court in relation to the evidence on record. The revisional court has failed to indicate any evidence for the basis of the finding that Virendra Bahadur Singh continued in possession through the defendant petitioner. Since the courts below have failed to record clear and categorical finding in what capacity the defendant petitioner occupied the accommodation in question. I think they have acted illegally in passing the decree of ejectment against the petitioner. If the defendant-petitioner is found in possession over the accommodation in question illegally and unauthorisedly as a trespasser, a question arises whether the trial court has a jurisdiction to evict the petitioner in the present suit. I think they have acted illegally in passing the decree of ejectment against the petitioner. If the defendant-petitioner is found in possession over the accommodation in question illegally and unauthorisedly as a trespasser, a question arises whether the trial court has a jurisdiction to evict the petitioner in the present suit. Though the counsel for the opposite parties has placed reliance upon the ruling reported in AIR 1984 Allahabad 130 and has emphasized paragraphs 25 to 28 of the aforesaid ruling but I think that the aforesaid ruling is prima facie inapplicable to the facts and circumstances of the present case. In the reported ruling the possession of the defendant no. 2 was held on behalf of defendant no. 1 but in the case under my consideration, the courts below have failed to record any categorical finding in this regard hence the plaintiffs-opposite parties cannot derive any benefit out of the above mentioned ruling 11. In view of my above conclusion it is not necessary to deal with the other contentions raised on behalf of the defendant petitioner. 12. In the result, the writ petition succeeds and it is proper to quash the impugned judgment of the revisional court and direct the revisional court to decide the question as to whether the defendant petitioner was in possession over the accommodation in question as a sub-tenant or licensee of Virendra Bahadur Singh-defendant no. 1 as alleged by the plaintiffs-opposite parties and whether the trial court was competent to pass the decree of ejectment against the defendant petitioner in view of the pleadings and evidence on record in the case. The writ petition is allowed and the impugned judgment of the revisional court is hereby quashed and the parties are directed to bear their own costs in this writ petition. Petition allowed.