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2009 DIGILAW 2305 (ALL)

MOHAN LAL v. KANCHEDI LAL RATHORE

2009-05-22

PRAKASH KRISHNA

body2009
JUDGMENT PRAKASH KRISHNA, J.--This is landlord's petition. It arises out of S.C.C. Suit No.3 of 1996 filed against the respondent tenant for recovery of arrears of rent and ejectment in respect of Shop No. 460 situate at Civil Lines, Rani Bagh, Lalitpur. The suit was instituted on the pleas inter alia that the respondent is a tenant on a monthly rent of Rs. 100/- and is in arrears of rent since 1.11.1995 whose tenancy has been terminated by a notice dated 18.12.1995 served on 26.12.1995. It was further pleaded that the defendant tenant illegally by removing the wooden partition wall has taken the possession of the other portion of the shop, which was earlier in occupancy of the petitioner landlord. By way of replication ejectment was also sought for on the ground of denial of title of the landlord. The suit was contested on the pleas inter alia that there is no default in payment of rent and that the enant has not encroached upon the other portion of the shop. In addition to other pleas it was pleaded that the present suit is not maintainable as the accommodation in question is an old construction and has been let out to the defendant tenant without there being any allotment order by the District Magistrate. In other words, the letting having taken place in violation of sections 11 and 13 of the U.P. Act No. 13 of 1972, the suit is not maintainable. The parties led evidence in support of their respective cases. The following seven issues were struck by the Trial Court on the basis of the pleadings of the parties :- 1. Whether rent-note was executed between the parties ? If not, its effect ? 2. What is the length and width of the shop in the tenancy and the rate of rent ? 3. Whether the defendant is defaulter, hence liable to be evicted ? 4. Whether the defendant denied the landlordship of the plaintiff, therefore, is he liable to be evicted ? 5. Whether the defendant removed the partition and took illegal possession over the total areas and is liable to be evicted ? 6. Whether the solitary landlordship is not of the property in dispute and as the second landlord was not made party to the suit, therefore, is the suit not maintainable ? 7. 5. Whether the defendant removed the partition and took illegal possession over the total areas and is liable to be evicted ? 6. Whether the solitary landlordship is not of the property in dispute and as the second landlord was not made party to the suit, therefore, is the suit not maintainable ? 7. Whether the provisions of U.P. Act No. 13 of 1972 apply to the shop in dispute, and the suit is not maintainable ? 2. The suit was decreed by the judgment and decree dated 31.5.2001. The said decree was carried in revision being SCC Revision No.4 of 2001 before the District Judge, Lalitpur who by the judgment and order dated 18.10.2001 has allowed the revision, set aside the judgment and decree of the Trial Court and dismissed the suit on the finding that in view of the Full Bench decision of this Court in the case of Nootan Kumar v. Second Additional District fudge. Challenging the legality and validity of the aforesaid order, the present writ petition has been filed. 3. Heard learned Counsel for the parties and perused the record. So far as the question of maintainability of suit and applicability of the Full Bench decision of Nootan Kumar (supra) is concerned, it is no longer in dispute that the said decision of Full Bench has been reversed by the Apex Court in the case of Nootan Kumar and others v. Additional District fudge and others.1 The learned Counsel for the respondent very fairly accepts the position. In view of the authoritative pronouncement of the Apex Court, the judgment of the Court below holding that the suit is not maintainable, cannot be allowed to stand. This part of the judgment is, therefore, set aside and reversed and it is held that the suit as framed is maintainable. 1. 2002 (49) ALR 251 (SC)=2002 (2) ARC 645 (SC). 4. Under Issue No. 1, it was found by the Trial Court that the property in dispute was let out to the respondent tenant in pursuance of the rent agreement dated 7.1.1984. The execution of the said rent agreement was denied by the respondent tenant. The parties led evidence in support of their respective cases. 4. Under Issue No. 1, it was found by the Trial Court that the property in dispute was let out to the respondent tenant in pursuance of the rent agreement dated 7.1.1984. The execution of the said rent agreement was denied by the respondent tenant. The parties led evidence in support of their respective cases. The Trial Court after making analysis of the evidence of the parties as also taking into consideration the report of the handwriting expert, reached to the conclusion that the said rent agreement was executed by the respondent tenant. The said finding has also been confirmed by the Revisional Court. In this view of the matter, the finding recorded by the Two Courts below under Issue No.1 stands confirmed. 5. The Issue No.2 relates to the length and width of the shop in tenancy and the rate of rent. This issue was decided by the Trial Court in favour of the landlord holding that the shop in question was initially let out on a monthly rent of Rs. 200/-. Subsequently, a portion of the said shop was vacated and its possession was handed over to the petitioner landlord. Consequently, the rent was reduced from Rs. 200/- to Rs. 100/-. At this juncture, it may be noted that in the rent agreement it is mentioned that the shop is being taken on a monthly rent of Rs. 200/-. The execution of the said rent agreement has been found to be proved. The case of the respondent tenant; on the other hand, was that he was in occupation of the entire shop since the very beginning on a monthly rent of Rs. 100/- which was disbelieved by the Trial Court. The dimensions of the entire shop is 20' x 14'. The case of the landlord was that after sometime, half of the shop in question was vacated and its possession was handed over to the landlord and the tenancy was confined to the shop measuring 10' x 14'. A wooden partition wall was fixed. The shop initially had to doors. In the month of September, 1985, half portion towards North was vacated and the rent was reduced to Rs. 100/- from Rs. 200/-. The Trial Court also found so. A wooden partition wall was fixed. The shop initially had to doors. In the month of September, 1985, half portion towards North was vacated and the rent was reduced to Rs. 100/- from Rs. 200/-. The Trial Court also found so. However, the said finding was reversed by the Revisional Court on the ground that merely from the reduction of rent of the shop, it cannot be said that the tenant retained the southern portion of the shop and vacated the northern portion of the shop. The said finding of the Revisional Court cannot be allowed to stand for the reasons more than one. Firstly, it was essentially a question of fact which was based on the appreciation of evidence. It was not open to the Revisional Court while exercising its jurisdiction under section 25 of the Provincial Small Causes Courts Act to reappreciated the evidence. Even otherwise also, the Trial Court has found that in the rent agreement, rent of the shop has been mentioned as Rs. 200/-. The said shop was taken on rent initially for a period of four months and the rent at the rate of Rs. 200/ - per month was paid. The tenant continued to pay the rent @ Rs. 200/-. The case of the landlord is that the tenant subsequently removed the partition wall and took the possession of the entire shop. A First Information Report at Kotwali, Lalitpur was lodged in this regard on 3.11.1995 and a Case Crime No. 1036 of 1995 under sections 352, 504, 506 and 427, I.P.C. was registered against the tenant respondent. The tenant respondent illegally took the possession of the articles amounting to Rs. 10,000/-. The Revisional Court failed to consider this aspect of the case and has abruptly reached to the conclusion that the finding recorded by the Small Causes Court is perverse and against the evidence on record. The finding of the Revisional Court cannot be sustained and the finding of Trial Court on this issue is restored back and it has held that the respondent tenant by removing the intervening wooden wall unauthorisedly took the possession of the northern portion of the shop in dispute. 6. The Revisional Court has devoted much time in recording the date of construction of the disputed shop which was not at all relevant for the purpose of the present case. 6. The Revisional Court has devoted much time in recording the date of construction of the disputed shop which was not at all relevant for the purpose of the present case. The present suit was filed beyond the period of 10 years from the date of first assessment and therefore, provisions of the U.P. Act No. 13 of 1972 are applicable to the premises in question. It has unnecessarily laboured to find out the date of construction of the shop in quest on. 7. The Revisional Court has not addressed the other issues relating to the default in payment of rent, denial of landlordship of the plaintiff and the effect of non impleadment of Jagdish Saran Agrawal, the co-landlord. It would be appropriate if the Revisional Court is directed to record the findings on the other issues, first, it may be noted that the learned Counsel fur the parties referred certain decisions in support of their respective cases. However, it is not appropriate for this Court to adjudicate the other issues as they have not been adjudicated upon by the Revisional Court. 8. In the result, the writ petition succeeds and is allowed in part. The judgment and order of the Revisional Court as stated above, is hereby set aside. The matter is restored back to the Revisional Court to rehear and redecide the revision afresh in the light of the observations made above preferably within a period of six months from the date of production of certified copy of this order. The Revisional Court is expected to decide only such issues which were left undecided earlier. 9. In view of divided success of the parties, no order as to costs. Petition Allowed.