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Allahabad High Court · body

2003 DIGILAW 959 (ALL)

Ganga Prasad Mishra v. State of Uttar Pradesh

2003-04-25

S.U.KHAN

body2003
JUDGMENT : S.U. Khan, J. This writ petition is directed against judgment and order dated 23.12.1997 passed by VIth Additional District Judge, Allahabad in Rent Control Appeal Nos. 107 of 1995 and 111 of 1995. State of U.P. which is tenant in a house instead of behaving like a model litigant is acting in an unscrupulous manner, which instead of being censured by Lower Appellate Court has rather been approved. 2. The brief facts of the case are that State is tenant in the house in dispute in which it has established office of C.B.C.I.D. Initially Miss Harlekar was owner-landlord. She died in the year 1984 she had executed a registered Will in favour of Ganga Prasad Mishra, Petitioner, who filed suit for ejectment and recovery of arrears of rent against the State and Sector Officer C.B.C.I.D. before VIIIth Additional District Judge/J.S.C.C., Allahabad being O.S. No. 20 of 1985. In the said suit Defendant filed written statement and denied any information with regard to Will dated 5.5.1979 on the basis of which G. P. Mishra claimed ownership/landlordship and filed the said suit. Issue Nos. 1 and 5 related to validity of the Will and relationship of landlord tenant in between Plaintiff and Defendant. The suit for ejectment was dismissed on 18.3.1992 on the ground that the Defendant had deposited entire rent, etc. on the first date of hearing as required by law (Section 20(4) of U.P. Act No. 13 of 1972). However, issue Nos. 1 and 5 were decided in favour of Plaintiff G.P. Mishra. It was held that the Will was genuine and had properly been proved by one of the attesting witnesses. It was further held that the only thing with regard to the Will stated by the Defendant was that in case such a Will had been executed, they would have been informed about the same. Consequently suit for the recovery of rent was decreed and the Plaintiff was held entitled to take back the amount deposited by the Defendant. It was further held that the only thing with regard to the Will stated by the Defendant was that in case such a Will had been executed, they would have been informed about the same. Consequently suit for the recovery of rent was decreed and the Plaintiff was held entitled to take back the amount deposited by the Defendant. It is important to note that the Defendants in that suit neither raised the plea of escheat nor moved any application u/s 23, P.S.C.C. Act for return of plaint to be presented to the civil court for determination of the title of Plaintiff on the ground that relief claimed by him depended upon the proof or disproof of the title to the immovable property which J.S.C.C. could not finally determine. Revision against the same filed by G. P. Mishra has also now been dismissed by this High Court through judgment and order dated 27.9.2002 delivered in Civil Revision No. 335 of 1992. No revision was filed by the State against the decree for recovery of arrears of rent which was based upon the findings that Miss. Harlekar had executed a Will in favour of G.P. Mishra which was valid and genuine. Even in the revision filed by G. P. Mishra it was not contended by the State that the findings of J.S.C.C. with regard to title of G. P. Mishra was wrong, which it could very well do on the basis of Order XLI Rule 33, Code of CPC as held by Supreme Court in a recent case in Nalakath Sainuddin Vs. Koorikadan Sulaiman, AIR 2002 SC 2562 . Proceedings giving rise to the instant writ petition were initiated by G. P. Mishra for enhancement of rent u/s 21(8) of U.P. Act No. 13 of 1972. Rent Control Eviction Officer by order dated 25.2.1995 determined the rent to be Rs. 4,517. Both the parties filed appeals against the said order. Appellate court dismissed the appeal of the Petitioner and allowed the appeal of the State. The appellate court brushed aside the earlier judgment given by A.D.J./J.S.C.C. dated 18.3.1992 on the ground that the Additional District Judge recorded the finding of ownership of Petitioner beyond its jurisdiction as J.S.C.C. had no right to determine title of the house in dispute. Appellate court dismissed the appeal of the Petitioner and allowed the appeal of the State. The appellate court brushed aside the earlier judgment given by A.D.J./J.S.C.C. dated 18.3.1992 on the ground that the Additional District Judge recorded the finding of ownership of Petitioner beyond its jurisdiction as J.S.C.C. had no right to determine title of the house in dispute. Only in regular court, such a question could be decided after framing relevant issue and on the basis of the evidence of the parties which could be binding on the parties. The findings recorded by A.D.J. would neither be res judicata between the parties nor State and C.B.C.I.D. were legally bound to accept the said findings. It was further held that Petitioner's ownership over the house in dispute could not be accepted unless he obtained from some competent court probate or succession certificate or got a declaration with regard to validity of the Will from some competent court as State was all along asserting that the Will was forged. 3. In the end, appellate court held that as the dispute with regard to ownership of the house in dispute had not been decided hence, Petitioner had not right to apply for enhancement of rent. In the operative portion it was mentioned that State of U.P. and C.B.C.I.D. department Allahabad was expected to hold enquiry on their level with regard to the genuineness of the disputed Will, as in their opinion the Will was forged (Farzy). 4. Before R.C. and E.O. State neither challenged the validity and genuineness of the Will nor the necessity of obtaining probate with regard to the Will was pleaded. The only thing asserted by the State was that it was not aware of the Will. As far as the question of probate is concerned the court below did not even consider whether it was legally necessary to obtain the same with regard to the Will in question by virtue of Section 57 and 213 of Indian Succession Act. The only thing asserted by the State was that it was not aware of the Will. As far as the question of probate is concerned the court below did not even consider whether it was legally necessary to obtain the same with regard to the Will in question by virtue of Section 57 and 213 of Indian Succession Act. Assuming for the sake of argument that probate was necessary still the lower appellate court could not enter into that question as in the earlier suit ownership/landlordship of G. B. Mishra had been accepted and the said finding was binding upon R.C. and E. O. in proceedings u/s 21(8) of the Act and the appellate court hearing the appeal against order passed by R.C. and E. O. in the said proceedings. 5. The plea of escheat raised by the State in the proceedings u/s 21(8) was also not tenable. The State in order to establish its right of ownership on the principle of escheat with regard to the building in dispute in facts and circumstances of the case has to assert the said right in a regular suit. It cannot transform its status from tenant to that of landlord on the self assumed and self determined right of escheat. Under some what similar circumstances where State was lessor it has been held by the Supreme Court in State of Uttar Pradesh and Others Vs. Maharaja Dharmander Prasad Singh and Others, AIR 1989 SC 997 "Sri Sorabjee submitted that great hardship and injustice would be occasioned to the Respondents if the State Government on the self-assumed and self-assessed validity of its own action of cancellation of the lease, attempts at and success in, a resumption of possession extra-judicially by physical force. Sri Sorabjee referred to the notice dated 19.11.1985 in which the Government, according to Sri Sorabjee, had left no one in doubt as to its intentions of resorting to an extra-judicial resumption of possession. Sri Sorabjee referred to Paras 3.10 and 4 of the order dated 19.11.1985. A lessor, with the best of title, has no right to resume possession extra-judicially by use of force, from a lessee, even after the expiry or earlier termination of the lease by forfeiture or otherwise. The use of the expression 're-entry' in the lease-deed does not authorise extra-judicial methods to resume possession. A lessor, with the best of title, has no right to resume possession extra-judicially by use of force, from a lessee, even after the expiry or earlier termination of the lease by forfeiture or otherwise. The use of the expression 're-entry' in the lease-deed does not authorise extra-judicial methods to resume possession. Under law, the possession of a lessee, even after the expiry or its earlier termination is juridical possession and forcible dispossession is prohibited; a lessee cannot be dispossessed otherwise than in due course of law. In the present case, the fact that the lessor is the State does not place it in any higher or better position. On the contrary, it is under an additional inhibition stemming from the requirement that all actions of Government and Governmental authorities should have a 'legal pedegree'. 6. Findings of J.S.C.C. with regard to the title of the landlord recorded in a suit for ejectment may or may not operate as res judicata in a regular suit filed in a civil court with regard to ownership. However, the least which can be said is that unless such findings are set aside by a regular civil court, the same will be binding upon the parties and upon the Courts and authorities of similarly limited or more limited jurisdiction where such matters are raised subsequently like J.S.C.C. while executing the same decree or hearing subsequent suit for ejectment filed on fresh ground, prescribed authority or R.C. and E.O., under U.P. Act No. 13 of 1972. It would be a dangerous proposition to permit a party to ignore and avoid the finding or order given against him by a court after due contest on the ground that the Court had no jurisdiction to record such findings or pass such orders. This will amount to giving right to a party to judge himself the validity of the judgment given by a court against him. Unless the judgment of a court of limited jurisdiction is set aside, the same is binding upon the parties. Under somewhat similar circumstances, the Supreme Court in Pawan Kumar Gupta Vs. This will amount to giving right to a party to judge himself the validity of the judgment given by a court against him. Unless the judgment of a court of limited jurisdiction is set aside, the same is binding upon the parties. Under somewhat similar circumstances, the Supreme Court in Pawan Kumar Gupta Vs. Rochiram Nagdeo, AIR 1999 SC 1823 , has held that findings of relationship of landlord and tenant given in earlier suit filed under M. P. Rent Control Act on the ground of default are binding in between the parties in the later suit filed under the same Rent Control Act on the ground of bona fide need. In the said case also like the present one the earlier suit was dismissed on the ground that tenant had deposited the entire rent which Plaintiff was held entitled to withdraw after recording the finding of ownership/landlordship in favour of the Plaintiff. The Supreme Court held that Defendant tenant could file appeal against the said findings recorded in the earlier suit even though the same had been dismissed and as the same was not done, hence the said finding operated as res judicata in the subsequent suit on the ground of bona fide need. Supreme Court observed in para 20 and 21 of the said judgment as follows: 20. In this case the position is still stronger for the Appellant. Dismissal of the first suit was only on account of what the Respondent did during the pendency of the suit i.e., depositing the arrears of rent claimed by the Appellant. The Court permitted the Plaintiff to withdraw that amount under deposit for satisfying his claim. Such a decree cannot be equated with a case where the suit was dismissed as not maintainable because any adverse finding in such a suit would only be obiter dicta. The finding made in O.S. 75-A/90 that Appellant was the real owner of the building as per Ext. P. 11 sale deed became final. If the Respondent disputed that finding he should have filed an appeal in challenge of it. 21. We, therefore, agree with the plea of the Appellant that there is bar of res judicata in reagitating on the issue regarding Appellant's title to the building. 7. P. 11 sale deed became final. If the Respondent disputed that finding he should have filed an appeal in challenge of it. 21. We, therefore, agree with the plea of the Appellant that there is bar of res judicata in reagitating on the issue regarding Appellant's title to the building. 7. The appellate court not only completely ignored the judgment given in the suit in between the parties but also went a step ahead by directing the State Government and C.B.C.I.D. department, Allahabad which is tenant in house in dispute to hold enquiry on their level with regard to the Will as in their opinion the Will was forged. It appears that the appellate court gave more value to the opinion of the party in the case than to the findings. It is rather shocking, State and C.B.C.I.D. were simply party in the proceedings and there was no reason to give them extra preference. Every party in litigation is bound to have opinion which suits his case. The Court only decides the rival claim and it cannot be swayed by the opinion of particular party, however, high it may be. State has been given possession over the property in dispute only as tenant and it cannot claim better title to the property than of a tenant. Findings of landlord and tenant relationship recorded in suit for ejectment are binding in between the parties in subsequent litigation involving the same relationship. Proceedings u/s 21(8) are more summary in nature than proceedings for ejectment of tenant before J.S.C.C. hence, findings of relationship of landlord and tenant recorded by J.S.C.C. are binding on the authority hearing as case u/s 21(8) of the Act. The finding of R.C and E.O. with regard to the valuation of the property was not challenged before the lower appellate court. Learned Counsel for the Petitioner has also not challenged the said findings during argument hence those findings do not require any interference. 8. Accordingly, impugned judgment and order is set aside and the order passed by R.C. and E.O. dated 25.2.1995 passed in case No. 56 of 1993 is restored. Writ Petition is allowed with Rs. 10,000 costs.