Brigunath Sahai Sinha v. D. J. Ballia — 1995 DIGILAW 72 (ALL)

JUDGMENT N. L. Ganguly, J. 1. This writ petition is directed against the judgment and decree of the orders of the revisional court dated 17-9-84, 9-4-87 and the judgment of Small Causes Court dated 28-1-85. 2. When this petition was filed, the Hon'ble Court was pleased to direct that W. P. No. 13044 of 1984 was pending before the Court between the same parties. The court was, thus, pleased to direct that this petition be listed alongwith the record of PW No. 13044 of 1984 aforementioned. This petition was admitted on 2-8-88 and connected with the said writ petition. I have already decided the said writ petition and dismissed the same. Since it is a connected with petition, separate judgment is being given. House No. D-113 Midhi, Ballia was let out to Brij Behari Sahai, father of the respondent No. 3 (5) Rs. 20 per month as rent about 40 years ago. It was said that an application under Section 3 of the Old Rent Control and Eviction Act permission to file the suit for eviction of the petitioner was filed. In the said application, it was stated that the partition has been done in the family and the house in question has come in the share of Brij Nath Sahai and he has no other premises to live. He filed the said application for permission to file the suit. The application was rejected for grant of permission to file suit by the Rent Control and Eviction Officer on 19-12-69. A revision was filed against the said order before the District Judge which too was dismissed by order dated 22nd March, 1973. The petitioner has given previous history of litigation and thereafter he stated that an application under Section 21 of the Rent Control Act (Act No. 13 of 1972) was filed for the release of the house in question basing his claim on another partition. It was said that the second partition was based on a compromise decree dated 25-5- 77. The petitioner pleaded that even after the compromise between the family members, the respondents neither gave any notice nor the original landlord namely Brij Nath Sahai ever informed that the house in question was given in the partition in the share of the respondent No. 3. The petitioner pleaded that even after the compromise between the family members, the respondents neither gave any notice nor the original landlord namely Brij Nath Sahai ever informed that the house in question was given in the partition in the share of the respondent No. 3. The petitioner pleaded that a notice was given to the petitioner for arrears of rent for more than four months and suit was filed under Section 20 (2) (a) of U. P. Act No. 13 of 1972. The petitioner contested the suit by filing written statement. After filing of the written statement plaint was amended. The suit was dismissed by the trial court on 12-11-82 A copy of the said judgment has best annexed as Annexure 3 with the writ petition. Against the said judgment, the contesting respondent No. 3 filed a revision which was allowed on 17th September, 1984. A copy of the said judgment is annexed as Annexure 4 to the writ petition which also has been challenged by the petitioner. The case was remanded and the plaintiff was permitted to amend the plaint to include the denial of landlord's title. After remand, pleadings were amended and the suit was decreed on 28-5-85. On the ground that the petitioners have denied the title of the landlord. The judgment dated 28-5-85 is annexed as Annexure 5 with the with petition, against which a revision was filed before the District Judge which was also dismissed by order dated 9-4-87, a copy is annexed as Annexure 6. These two orders are also challenged by the petitioner in the present writ petition. 3. A perusal of the judgment of the District Judge Annexute-6 dated 9-4-87 shows that the plaintiff- respondents' suit was filed on the sole ground that he is the owner and landlord of the premises in suit and the defendant Kripa Shanker is tenant at the monthly rent of Rs. 25. It was said that the defendant was in arrears of rent for more than 4 months. A combind notice under Section 20 of the Act No. 13 of 1972 read with Section 106 of Transfer of Property Act was sent to the defendant petitioner which lie refused to accept. After the expiry of the statutory time, the plaintiff filed the suit for ejectment. 4. A combind notice under Section 20 of the Act No. 13 of 1972 read with Section 106 of Transfer of Property Act was sent to the defendant petitioner which lie refused to accept. After the expiry of the statutory time, the plaintiff filed the suit for ejectment. 4. For the first time, the defendant petitioner deposited the entire amount of rent and damages in compliance of Section 20 (4) of the Act and filed a written statement alleging that the plaintiff was not the sole landlord and owner of the premises in dispute. He is the co-landlord alongwith his brother Shiv Shanker, Vijai Shanker and Munnuji and mother Smt. Raj Bashi Devi. The petitioner stated that he had entered into a contract of tenancy with the plaintiff respondent's father Brij Nath Sahai, who died in 1980. The plaintiff had filed an application under Sec. 21 of the Act in the Court of the prescribed authority which was dismissed on 28-8-79 on the ground that the plaintiff is not the sole landlord of the premises in dispute. The application was allowed in appeal and the writ petition is pending in the Hon'ble High Court. The reference to these facts relate to the writ petition No. 13044/84 which have been decided by separate judgment. In the court below, the plea raised was that the defendant-petitioner had filed the written statement on the basis of which the plaintiff-respondent took illegally an advantage of the plea of denial of the landlord's title. He moved an application for amendment in the plaint in the revisional court. The amendment was allowed by the revisional court and the case was remanded to the trial court. 5. After remand of the case to the Court of Judge, Small Causes Court, the suit was decreed after appreciating the oral and documentary evidence on record specifically with a finding and on the ground that the defendant-tenant denied the title of the landlord. Being aggrieved by the said judgment a revision was filed before the District Judge and the same was dismissed by the revisional Court by the impugned judgment dated 9-4-1987 affirming the finding that since the tenant had denied the title of the landlord, the decree for eviction of the tenant by the trial court was just and according to law. 6. 6. The learned counsel for the petitioner submitted before this Court that the tenant-petitioner deposited the entire arrears of rent before the Court and he was entitled to a protection from the eviction decree according to the provisions of Sec. 20 (2) (f) of the U. P. Act No. 13 of 1972. The learned counsel for the petitioner submitted that since the tenant had a bonafide doubt about the title of the landlord, he had deposited the entire amount of rent under Section 30 (2) of the Act. The learned counsel cited 1986 (2) Allahabad Rent Cases 305, Paramsukh v. III Additional District Judge and the decision reported in 1983 ARC 74, M. P. Garg v. Smt. Vijaya Lakshmi. The mere deposit of rent under Section 30 (2) of the Act would not absolve the tenant from the risk of being evicted on the ground of default. The categorical denial of the title by the tenant in the written statement filed shows that the submis sion about bonafide doubt and dispute by the tenant which had necessitated him to deposit the rent under Section 30 (2) of the Act is self-contradictory and is demolished by the statement of denial of title in the written statement. The authorities cited by the learned counsel for the petitioner are of no assistance to him. The only fact that the deposit made under Section 30 (2) of the Act was unconditional is of no help because the petitioner is his written statement denied the title of the respondent-landlord. The submission that since the petitioner had stated in the written statement that the respondent- plaintiff is not the sole landlord would not amount to denial of the title of the landlord. It is settled law that for the purposes of the U. P. Act No. 13 of 1972 it is the person, who is legally entitled to realise the rent, is the landlord. In 1982 (2) Allahabad Rent Cases 1, Narain Dass Khanna v. Jawahar Lal Bhatia this question was considered by this Court and it was held that the denial by the defendant-tenant in the written statement that the plaintiff is not the sole landlord of the premises amounts to denial of the title of the landlord and there was no necessity for determining the tenancy of the tenant under Section 111 (g) of the Transfer of Property Act. The court below after appreciating the oral and documentary evidence arrived at a finding that the defendant had denied the title of the landlord in the written statement and the said finding being a pure finding arrived after appraising the evidence is not open to be challenged under Article 226 of the Constitution, This view finds support from the decision of the Division Bench Paramsukh and another (supra). 7. After hearing the learned counsel for the parties and perusing the record of the writ petition I do not find any error of law or jurisdiction calling for interference under Article 226 of the Constitution. 8. The writ petition is dismissed with costs. The interim order dated 17-4-1987 is hereby vacated. Petition dismissed.