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2007 DIGILAW 600 (UTT)

CHANDRA SHEKAR GAUR v. ADDITIONAL DISTRICT JUDGE

2007-12-12

PRAFULLA C.PANT

body2007
JUDGMENT Hon'ble Prafulla C. Pant, J. By means of this writ petition, the petitioner has sought writ in the nature of certiorari quashing the order dated 31.05.2000, passed in SCC suit No. 42 of 1978, by Judge Small Cause Court/Civil Judge (Jr. Division), Haridwar and the order dated 07.08.2003, passed in SCC revision No. 32 of 2000, passed by Additional District Judge/Ist Fast Track Court, Haridwar, affirming the decree passed by Judge Small Cause Court. 2. Heard learned counsel for the parties. 3. Brief facts of the case are that respondent No. 3 Krishan Gopal and his mother Raj Dulari, claiming themselves to be landlords, instituted suit for eviction and recovery of arrears of rent (after determination of tenancy on the ground of default in payment of rent under Section 20 of U.P. Act No. 13 of 1972 read with Provincial Small Causes Court Act, 1887, as amended by State of Uttar Pradesh) against the original defendant Shiv Kumar, before the Judge Small Causes Court, Haridwar. Said suit was initially dismissed by the trial court vide judgment and order dated 22.09.1980 and the same was affirmed by the revisional court vide order dated 23.07.1981. Both the orders i.e. 22.09.1980 and 23.07.1981, challenged by the landlords before the Allahabad High Court by filing civil misc. writ petition No. 10992 of 1981. Said writ petition was decided vide order dated 23.04.1999, a copy of which is annexure-3 to this writ petition. In said writ petition, Allahabad High Court, passed between the parties in earlier round of litigation (in S.C.C. Suit No. 19 of 1973) was binding on them and as such, it held that Shiv Kumar was the tenant and Ram Kishan was the landlord. The present landlords (Krishan Gopal and others) are the transferees of said Ram Kishan. Statement of deceased/defendant Shiv Kumar, recorded on 31.07.1980, contained in admission that he was the tenant in premises in question for some 20-22 years. It is also not disputed that during the pendency of the aforesaid writ petition (No. 10992 of 1981) Shiv Kumar died and in his place present petitioner - Chandra Shekhar Gaur was substituted. The Allahabad High Court vide its order dated 23.04.1999, passed in writ petition No. 10992 of 1981, remanded the case to the trial court for deciding suit No. 42 of 1978 afresh. The Allahabad High Court vide its order dated 23.04.1999, passed in writ petition No. 10992 of 1981, remanded the case to the trial court for deciding suit No. 42 of 1978 afresh. Consequently, Judge small Cause Court, passed impugned decree dated 31.05.2000, whereby the suit was decreed against present petitioner-Chandra Shekhar Gaur. Said decree is affirmed vide order dated 07.08.2003, passed by revisional court (Additional District Judge/Ist Fast Track Court) in civil revision No. 32 of 2000. Hence this petition. 4. Learned counsel for the petitioner argued before this Court that the petitioner is not the tenant and the trial court as well as the revisional court have committed error of law in treating him tenant of respondents No. 3 to 7. I have gone through the impugned orders, passed by the courts below. The finding recorded by the trial court is well discussed and based on evidence adduced by the parties, and submissions made by substituted defendant are considered at length only thereafter the finding has been recorded. This Court, in exercise of its writ jurisdiction, is not inclined to interfere with the finding of the facts, which are based on the well discussed evidence adduced before the trial court. The revisional court has also concurred with the finding recorded by the trial court. Apart from this, it is also pertinent to mention here that in the earlier round of litigation before the Allahabad High Court, in writ petition No. 10992 of 1981, it has been held that the parties cannot retreat from what they or their predecessor in title had admitted in the compromise decree, passed in SCC suit No. 19 of 1973. In said decree, Ram Kishan, has been held to be landlord and Shiv Kumar to be tenant. The present petition is brother of Shiv Kumar, who has been substituted in his place after he started living in the premises in question in place of Shiv Kumar. It is also proved on the record that the present landlords have derived the title from the original landlord Ram Kishan. Once that relationship is established on record, it is not open for the parties to plead and prove otherwise. 5. Shri N.S. Negi, learned counsel for the petitioner, submitted that the property in suit is owned by deity Gauri Shankar Mahadev Ji and is managed by Wakf/Trust, created by Ganga Prakash. Once that relationship is established on record, it is not open for the parties to plead and prove otherwise. 5. Shri N.S. Negi, learned counsel for the petitioner, submitted that the property in suit is owned by deity Gauri Shankar Mahadev Ji and is managed by Wakf/Trust, created by Ganga Prakash. In this connection, having considered the submission of the learned counsel for the petitioner, it is sufficient to say that ownership and landlordship of a house are two different status. The property even if vests in the deity Gauri Shankar Mahadev Ji, since the rent of the premises was payable to the plaintiffs/respondents, they hold a status of the landlord, as against the occupants, who are living in the premises as tenants. The case of defendant No. 1/1 (present petitioner) is that he is Shivayat Sarbakar (Manager) of the property of diety Gauri Shankar Mahadev Ji. But the finding recorded by the courts below after discussing the evidence, shows that earlier Shiv Kumar was the tenant of original landlord Ram Kishan and after death of Shiv Kumar, it is the petitioner (brother of Shiv Kumar), who is living as tenant in the premises in suit. 6. For the reasons as discussed above, this Court does not find any force in the writ petition. The same is liable to be dismissed. The writ petition is dismissed with the observation that petitioner is allowed to vacate the premises in question within a period of one month from today.