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1999 DIGILAW 41 (ALL)

Ram Kishore v. Har Pyari

1999-01-15

J.C.MISHRA

body1999
JUDGMENT : - J.C. Mishra, J. This appeal has been filed against the judgment and decree dated passed by 1st Additional District Judge, Rampur allowing Appeal No. 35 preferred against the judgment and decree dated 16-3-92 passed by Additional Judge, Rampur by which the suit filed by the respondent Smt. Har Pyari was dismissed and also the judgment and decree in civil appeal No. 37 of 1992 which was dismissed and the judgment and decree passed by the trial Court was maintained. 2. THE respondent Smt. Har Pyari filed suit No. 103 of 1985 against the appellant. THE property in question, according to her, belonged to Mathura who mortgaged it in year 1922 in favour of Nanhey Khan. THE mortgaged was redeemed ort 26-8-1992 was again mortgaged on 19-4-1945 in favour of Raghuvir Sahay and after redemption third mortgage deed was executed in favour of Raghuvir Sahay on 16-6-49 but was re-deemed. The plaintiff's case was that the house in dispute was inherited by Shiv Sharma and Hari Shanker, who were grandsons of Mathura. Hari Shanker had a son Anil Kumar Sharma. Shiv Shanker had three sons, namely, Suresh Chandra Sharma, Mai Chandra Sharma and Vijay Kumar Sharma and a daughter Smt. Bipin Lalta. Then the case of the plaintiff Har Pyari was that Mahesh Chandra Sharma, Suresh Chand Sharma, Vijay Kumar Shar ma and Anil Kumar Sharma executed sale deed on 8th October, 1984 and transferred the property in question in her favour. Prem wall, widow of Shiv Shanker Smt. Beena Sharmaj brother's wife Sharma accepting the transfer through sale deed dated 8th October, 1984 relinquishment deed in favour of Smt. Har Pyari on 19-4-1985. Thereafter, Smt. Bipin Lata, daughter of Shjv Shanker and Smt. Vidya widow of Hadi Shanker also executed relinquishment deed in favour of Smt. Hari Pyari on 10-5-1985. Thus, all the heirs of Mathura through registered deeds transferred the rights and interest in the property in suit and, therefore, the plain tiff Har Pyari became sole owner of the property in suit. 3. THEN the case of the plaintiff Har Pyari was that the house in suit was let out to defendant Ram Kishore on 21st July, 1973 and a memorandum was executed by him. The house was repaired and the rent was enhanced to Rs. 80/- per month on 21-7-74. 3. THEN the case of the plaintiff Har Pyari was that the house in suit was let out to defendant Ram Kishore on 21st July, 1973 and a memorandum was executed by him. The house was repaired and the rent was enhanced to Rs. 80/- per month on 21-7-74. The defendant Ram Kishore did not pay rent and, therefore, the heirs of Shiv Shanker Sharma demanded arrears of rent and in default terminated the tenancy of the defendant Ram Kishore by notice dated 15th October, 1977. Ram Kishore sent a reply on 11-2-78 and denied the fact that he was tenant and also denied the title of the heirs of Shiv Shanker Sharma. As the notice was signed by Mahesh Chandra Sharma alone another notice was sent by the heirs on 21- 3-78 which was served on 22-3-78. The defendant Ram Kishore did not reply nor deposited the arrears of rent and damages. However, some influential persons intervened and the amount of rent which was enhanced to Rs. 80/- per month was reduced to Rs. 40/- per month. Ram Kishore paid the entire arrears of rent at the rate of Rs. 40/-per month. 4. THE plaintiff's case is that the house in suit existing at plot No. 1920 and 1921 and was recorded in the records of town area. After transfer of the property in question Smt. Har Pyari became owner and landlord of the premises in suit but the defendant Ram Kishore did not accept her title nor paid any rent. THE plaintiff Smt. Har Pyari sent a notice on 13-5-85 demanding arrears of rent and in default terminated the tenancy. THE defendants sent reply disputing the title of Smt. Har Pyari claiming themselves to be owner of the disputed shops; Hence the suit. The defendant-appellants con tested the suit, inter alia, that the shops in question are not located in mohalla Sadat but in mohalla Amiran and they had never taken the shops on rent from Shiv Shanker Sharma nor any relationship of landlord and tenant was established between them. The shops in question belonged to the defendants' father Nanheymal. He was exclusive owner. He died 36 years before. The defendants became owner of the shops in question and started business of preparing sweetmeats. They constructed a chabutara in 1971 regarding which a notice was sent by the town area on 10th April, 1971. 5. The shops in question belonged to the defendants' father Nanheymal. He was exclusive owner. He died 36 years before. The defendants became owner of the shops in question and started business of preparing sweetmeats. They constructed a chabutara in 1971 regarding which a notice was sent by the town area on 10th April, 1971. 5. THE defendants also instituted suit against Smt. Har Pyari for award of permanent injunction against Smt. Har Pyari. Both the suits were consolidated and decided together. THE trial Court on consideration of the oral and documentary evidence held that neither of the plaintiffs could prove their case. THE learned Additional Civil Judge, therefore, dismissed both the suits by order dated 16-3-92. 6. BOTH the plaintiffs preferred appeals. The appeal filed by Smt. Har Pyari against the decree in suit No. 103 of 1985 was registered as Civil Appeal No. 35 of 1992. The appeal filed by Ram Kishore and others against the decree in suit No. 90 of 1984 was registered as Civil Appeal No. 37 of 1992. In the appeal the appellants Smt. Har Pyari filed documents under Order XLI, Rule 27, C.P.C. The order admitting the documents was challenged in writ jurisdiction and according to the learned counsel for the appellants the said writ petition is pending. The learned Additional District Judge on appreciation of the evidence on record including the documents filed in appeal held that the plaintiff succeeded in proving her title and also her case that Ram Kishore and others were in possession over the shops in question as tenants and the tenancy was validly terminated by notice. He held that Raiti Kishore and others could not prove their title. With these findings he allowed the appeal filed by Smt. Har Pyari and dismissed the appeal filed by Ram Kishore and others. Felt aggrieved Ram Kishore and other have filed this appeal challenging the judgment and decree passed in Civil Appeal No. 35 of 1992. 7. I HAVE heard the learned counsel for the parties and perused the record. 8. THE learned counsel for the appellants contended that the trial Court had recorded a finding that Smt. Har Pyari could not prove her title nor the title of her transferors but the appellate Court reversed the finding without considering the reasons assigned by the trial Court. I HAVE heard the learned counsel for the parties and perused the record. 8. THE learned counsel for the appellants contended that the trial Court had recorded a finding that Smt. Har Pyari could not prove her title nor the title of her transferors but the appellate Court reversed the finding without considering the reasons assigned by the trial Court. He contended that the reversal of the finding without considering the reasoning is erroneous and can be considered as substantial question of law enabling the High Court to interfere with the decree. THE learned counsel also contended that the title of the vendors was not considered by the appellate Court nor the finding recorded by the trial Court was reversed. He contended that the judgment is not a discussed one and the appeal was allowed in a cursory manner. THE plaintiff Smt. Har Pyari could not prove her possession within 12 years and, therefore, was not entitled to any decree. A perusal of the judgment passed by the trial Court would show that the plaintiff's case was not accepted primarily on the ground that she could not file any document to prove title of her predecessors in interest. Secondly it was held that since the rent note was not registered it could not be read in evidence. Thirdly he referred to some contradiction and on its basis held that the tenancy was not proved. Lastly he discussed the expert opinion and on its basis also recorded adverse finding. 9. THE plaintiff filed documents to prove the title of her predecessors in interest in appeal under Order XLI, Rule 27, C.P.C. It is true that the said order was challenged in writ jurisdiction but merely on account of pendency of the writ petition the said order cannot be said to be erroneous. THE learned counsel for the appellants could not point out any error in the said order warranting interference in appeal. 10. THE appellate Court firstly relied on mortgage deeds which were executed by Mathura grandfather of Shiv Shanker and Hari Shanker which shows that Mathura claiming the property in question to be his own had mortgaged it. Thus, the old documents are admissible as they go to a long way to prove what Mathura had been asserting since 1922. 10. THE appellate Court firstly relied on mortgage deeds which were executed by Mathura grandfather of Shiv Shanker and Hari Shanker which shows that Mathura claiming the property in question to be his own had mortgaged it. Thus, the old documents are admissible as they go to a long way to prove what Mathura had been asserting since 1922. There was no controversy at that time nor the appellant have claimed that the property in question belonged to their father in the year 1922. THE appellate Court also placed reliance on the evidence of earlier registered rent notes dated 18-2-50 and 7-7-60 to prove that Shiv Shanker had let out the shops in question to Madanlal and thereafter to Shiv Shanker Sharma. THE appellate Court also appreciating the evidence held that despite some difference in boundary in view of change of ownership of adjacent houses the plaintiff could prove that the rent note and mortgage deeds related to the same property. The appellate Court also held that the rant note in question required registration and, therefore, was not admissible. However, citing some pronouncements he held that the deed could be relied on for collateral purposes. 11. THE appellate Court also discussed oral evidence including the deposition of hand writing expert and recorded categorical finding that the property in question belonged to the predecessors in interest of Smt. Har Pyari and in view, of the sale deed and relinquishment deeds she became sole owner. It is true that entries in municipal records by itself do not prove title but are important piece of evidence. THE property in question was recorded in the name of predecessor in interest of' the plaintiff Har Pyari. THE entries in the public document was admissible and was rightly relied on by the appellate Court. 12. THE learned counsel for the respondent pointed out that name of Shiv Shanker was recorded in town area records. The appellate Court on consideration of the documents and the evidence oh record found Smt. Har Pyari owner of the property in question. The defendants could not prove their title. It is true that the defendants are admittedly in possession but the plaintiff succeeded in proving the basis of possession. The appellate Court in considering the evidence held that the property in question was let to the defendants; and they were in possession as tenants. The defendants could not prove their title. It is true that the defendants are admittedly in possession but the plaintiff succeeded in proving the basis of possession. The appellate Court in considering the evidence held that the property in question was let to the defendants; and they were in possession as tenants. The tenancy was terminated and, therefore, the plaintiff was entitled to pos session. ; 13. I FIND that no substantial question of law warranting interference in the judgment and decree passed by the appellate Court is involved. 14. THE appeal is, therefore, dismissed. Appeal dismissed.