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1988 DIGILAW 1188 (ALL)

Ram Chandra v. IXth Additional District Judge, Allahabad

1988-12-19

R.P.SINGH

body1988
ORDER R.P. Singh, J. - By means of this writ petition, under Article 226 of the Constitution, the petitioner has challenged the order passed by the IXth Additional District Judge Allahabad, dated 30-5-88, allowing the revision after setting aside the decree passed by the Judge, Small Cause Court and remanding the case back to him to decide the case afresh in accordance with law. 2. Brief facts of the case are that the petitioner filed a suit for ejectment and arrears of rent against the respondent No. 3 Lallu Lal, alleging that the petitioner is the landlord of the disputed accommodation i.e. a portion of house No. 38 Khuldabad, Allahabad on a rent of Rs. 10/- per month of which the petitioner is the landlord and owner and that the defendant fell in arrears of rent since 1-11-1973 and when in spite of service of demand and notice to quit, the defendant failed to pay the arrears of rent, the defendant is the defaulter in payment of rent and hence liable to ejectment. 3. The respondent No. 3 Lallu Lal contested the suit on the ground that there was no relationship of landlord and tenant between the parties and the house in question was owned by the father of the parties Kishori Lal and on his death, it was inherited by the parties as his heirs and since defendant is not the tenant of the disputed accommodation and hence the suit is liable to be dismissed. 4. The Judge, Small Cause Court on consideration of the entire evidence on record held that the respondent No. 3 had already executed a registered deed of relinquishment dated 8-9-71 by which he had relinquished his rights and title of the house in dispute in favour of the petitioner. Further Kishori Lal the father of the parties had already executed a registered will which was duly proved showing that he bequeathed the house in dispute in favour of the petitioner Ram Chandra. In the will itself it was stated that the respondent No. 3 Lallu Lal shall continue to remain in occupation of the portion of the house in dispute on a rent of Rs. 10/- per month and in case he fails to pay rent due, he shall be liable to ejectment therefrom. In the will itself it was stated that the respondent No. 3 Lallu Lal shall continue to remain in occupation of the portion of the house in dispute on a rent of Rs. 10/- per month and in case he fails to pay rent due, he shall be liable to ejectment therefrom. The Judge, Small Cause Court also relying on an allotment order produced by the plaintiff showing that the portion of the house in dispute was allotted to Lallu Lal the respondent No. 3 on 12-1-1961 held that the relationship of the landlord and tenant is duly established between the parties and further finding that the respondent No. 3 having failed to pay the arrears of rent in spite of due service of notice of demand on him, decreed the suit for ejectment and arrears. Feeling aggrieved, the respondent No. 3 went up in revision before the IXth Additional District Judge, Allahabad who on reappraisal of the evidence, held that no relationship of landlord and tenant is established between the parties and sent back the case to the Judge, Small Cause Court to decide the case afresh in accordance with law which order is in challenge in the present writ petition. 5. Heard Sri Yogesh Agarwal learned-counsel for the petitioner and Sri V.N. Agarwal learned counsel for the respondent. 6. The learned counsel for the petitioner strenuously contended that the IXth Additional District Judge, Allahabad, did not have the power to evaluate the evidence himself and come to a conclusion different than which had been arrived at by the Judge, Small Cause Court. It was contended that the respondent No. 1 had no jurisdiction to reappraise the evidence and a Court in revision under S. 25 of the Provincial Small Cause Courts Act has a very limited function to discharge and the respondent-No. 1 had allowed the revision on complete reappraisal of evidence and hence the order passed by the respondent No. 1 is liable to be set aside. The submission of the learned counsel for the petitioner is well founded. The submission of the learned counsel for the petitioner is well founded. The phrase 'according to law' occurring in S. 25 of the r Small Causes Court (Sic) in Hari Shankar v. Rao Girdhari Lal Chaudhari, AIR 1963 SC 698 and it was held that the phrase 'according to law' refers to the decision as a whole and is not to be equated to error of law or a fact simpliciter. Considering the phrase 'according to law' the Supreme Court in M.A. Naicker v. Seth Manghrai, AIR 1969 SC 1344 held that while exercising that power, the High Court is bound by the findings of fact reached by the District Judge. A wrong decision of fact by a competent Court is also a decision according to law. The Court has no power to de novo examine the findings of fact reached by the trial Court. Relying on these authorities a Division Bench of this Court in Laxmi Kishore v. Har Prasad Shukla, reported in 1981 All Rent 545 held that the Court exercising revision power under S. 25 does not possess jurisdiction to determine issues on fact itself by entering into the evidence and assessing it. The Revisional Court has no jurisdiction, it was pointed out, to reassess or reappraise the evidence in order to determine an issue of fact itself. It cannot enter into the evidence to reassess and determine an issue of fact. 7. The revisional Court can interfere only if there is no evidence to sustain a finding on a particular issue of fact or that the finding is based on only inadmissible evidence. In the present case I find that the revisional Court had reassessed the evidence and then come to a conclusion that the relationship of landlord and tenant is not established between the parties. In that view of the matter the revisional Court had clearly exceeded its jurisdiction. As will be clear from the facts of the case stated above, the Judge, Small Cause Court had relied on the deed of relinquishment executed by the respondent No. 3 himself on 8-9-1971. In that view of the matter the revisional Court had clearly exceeded its jurisdiction. As will be clear from the facts of the case stated above, the Judge, Small Cause Court had relied on the deed of relinquishment executed by the respondent No. 3 himself on 8-9-1971. Further there is an iqrarnama also executed by the respondent No. 3 on 9-11-1966 stating that the respondent No. 3 had separated from his father, brother and sisters and had received properties falling to his share and he does not have any right or interest in the property in the hands of K ishori Lai, his sons and daughters. Then the Judge, Small .Cause Court had also relied on the allotment order showing that the portion of the house in disputewas allotted to respondent No. 3 and the owner of the house in dispute 80/38 Khuldabad, Allahabad was, described as Kishori Lai. This copy of the official document has been relied upon by the respondent No. 2 in coming to the conclusion that the respondent No. 3 was in possession of the house in dispute as tenant on the basis of the allotment order. Further there is registered will executed by Kishori Lal dated 2-4-73 in which also it was clearly stated by Kishori Lal that respondent No. 3 Lallu Lal is in possession of a portion of the house in dispute on a rent of Rs. 10/- per month and that the house in dispute has been bequeathed in favour of the petitioner and further that the respondent No. 3 shall remain in possession as tenant on payment of Rs. 10/- as rent and shall be evicted therefrom if he defaults in payment of rent. The revisional Court respondent No. 1 had allowed the .revision simply on the ground that no rent deed or evidence of payment of rent had been produced in the case. The revisional Court held that it is not known under what circumstances the allotment order was issued in favour of respondent No. 3. In fact the revisional Court had not taken into consideration the Iqrarnama executed by respondent No. 3 dated 9-11-1966 and the deed of relinquishment executed by respondent No. 3 dated 8-9-1971 and held that on the evidence on record it is not possible to hold that relationship of landlord and tenant exists between the parties. In fact the revisional Court had not taken into consideration the Iqrarnama executed by respondent No. 3 dated 9-11-1966 and the deed of relinquishment executed by respondent No. 3 dated 8-9-1971 and held that on the evidence on record it is not possible to hold that relationship of landlord and tenant exists between the parties. In my opinion, they revisional Court has clearly exceeded its jurisdiction. It is not a case where the finding recorded by the Judge, Small Cause Court is based on no evidence on record or that it is based on inadmissible evidence. The Judge, Small Cause Court in arriving at its finding had relied on registered deed and registered documents executed by the parties and also relied on the copy of the allotment order issued from the office of the Rent Control and Eviction Officer and then recorded a finding that the relationship of landlord and tenant exists between the parties. In the circumstances the revisional Court had no jurisdiction to upset this finding arrived at o the consideration of evidence on record an the order passed by the revisional Cour setting aside the decree passed by the Judges Small Cause Court is clearly without jurisdiction. 8. In the result, the writ petition is allowed and the order passed by the IXth Additional District Judge, Allahabad dated 30-5-88 is set aside. 9. Xn the circumstances of the case, however, I make no order as to costs.