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2010 DIGILAW 3767 (ALL)

Ravi Kumar Agarwal v. Virendra Kumar Gupta

2010-12-21

DEVENDRA PRATAP SINGH

body2010
JUDGMENT : Hon'ble Devendra Pratap Singh, J. 1. Heard Sri M.K. Gupta along with Sri Swapnil Kumar for the petitioner and Sri B.D. Mandhyan, learned Senior Advocate along with Sri Satish Mandhyan for the respondent. 2. This petition by the landlord is directed against a revisional order dated 3.9.2007 allowing a revision of the respondent-tenant against a decree of eviction. 3. The petitioner-landlord instituted a Small Cause Court suit no. 112 of 2002 inter-alia with the allegation that the petitioner is the owner and landlord of premises no. 6/20,, Putaria Mahal, Jamuna Kinara, Agra (here-in-after referred to as the disputed premises) wherein Sri Ganga Prasad was the original tenant at Rs.31.50p. of the entire first and second floor for residential purposes and after his death, his sons Bishambhar Prasad and Mahesh Prasad inherited joint tenancy but both had constructed their own house within Municipal Limit of Agra yet they did not vacate the premises and in order to collect premium and rent, they have illegally sublet the portions of the premises of the first and second floor by inducting three subtenants and apart from that, they have made material structural alterations and additions thereby disfiguring the premises and diminishing its value and utility without any written consent of the landlord. It was also alleged that even the meagre rent was not being paid and despite notice dated 2.4.2002, they had not vacated the premises, forcing them to file the suit. 4. Three sets of written statements were filed, one by Bishambhar Prasad and other by Mahesh Prasad and the subtenants filed their joint written statements. Bishambhar Prasad in his written statement alleged that after the death of his father, he only became tenant as the other brother Mahesh Prasad was residing in U.S.A. and he is paying rent to the landlord, factum of construction of the house at Vaibhav Nagar was denied but construction of house by Mahesh Prasad was admitted. It was admitted that the subtenants were in occupation since 1946 and they are paying rent, but the material alterations were denied. Sri Mahesh Prasad filed his own written statement stating that he was living in USA and after the death of Ganga Prasad only Bishambhar Prasad became the tenant but he admitted construction of a house at Vaibav Nagar and that the subtenants were in occupation prior to 1946. Sri Mahesh Prasad filed his own written statement stating that he was living in USA and after the death of Ganga Prasad only Bishambhar Prasad became the tenant but he admitted construction of a house at Vaibav Nagar and that the subtenants were in occupation prior to 1946. The subtenants filed their joint written statements reiterating the allegations of Bishambhar Prasad. 5. After considering the stand taken by the parties, the Judge, Small Cause Court framed as many as 6 issues for determination and held that both Bishambhar Prasad and Mahesh Prasad succeeded to the joint tenancy on the death of the original tenant. It also held that the subtenancy was without consent and created after 1946. It found that there was default but the arrears of rent were deposited on the first date of hearing, however, it refused to give any benefit of section 20 (4) of the U.P. Act No. 13 of 1972 on the ground that the tenants have built a house at Vaibhav Nagar. On the question of material alteration, it found that large scale material alterations have been made without any permission and which had not only diminished its value and utility but has endangered the very existence of the premises. On these findings it decreed the suit. 6. The resultant revision has been allowed recording contrary finding on all the issues which is under challenge before this Court. 7. Learned counsel for the petitioner has urged that the revisional court has erred in law in re-appreciating the evidence on record which was beyond its jurisdiction. In support thereof, he has relied upon a Division Bench decision of this Court rendered in the case of Laxmi Kishore & another vs. Har Pratap. 8. Before the Court proceeds to consider the argument, it would be appropriate to consider the parameters laid down by the aforesaid Division Bench with regard to the revisional power under Section 25 of the Provincial Small Causes Court Act. The Division Bench has held that if the revising authority finds that there is no evidence to sustain a finding on a particular issue of fact, it can ignore that finding and also those findings which are based on inadmissible evidence and in such cases it would be justified in deciding the question of fact itself or remit it to the court below. However, it has no jurisdiction to reassess or reapprise the evidence in order to determine the issue of fact itself. Relying upon the dictum of the Apex Court in the case of Malini Ayyappa Naicket (Dead) vs. Seth Manghraj Udhavdas, it has also held that a wrong decision on facts is also a decision in accordance to law and the revisional court cannot substitute its own conclusion. 9. On the question of material alteration, after considering the evidence of the parties, the trial court found that admittedly the tenants had made alterations in view of the floods of 1978 and the storm of 1980, but it went on to find that the alleged alterations were made without the consent in writing of the landlord and no permission was sought or notice given even under Section 29 (2) of the U.P. Act No.13 of 1972. It also found that the tenants had enclosed the projection which was in the nature of balcony by putting up a stone slab supported by 7 iron girders. The revisional court interfered with this finding basically on the ground that the landlord had not proved by evidence that the tenants have used 7 girders to support the stone slab over the balcony and as such assumed jurisdiction to interfere. 10. In the plaint, the plaintiffs have alleged to the following effect in regard to the balcony : "6. (i)......... (ii) Similarly, the defendants have closed the open balcony which opens towards the main Jamuna Kirana Road, on the east of the House and for this purpose have constructed a pucca brick wall on the Eastern open side of the Balcony. It is note worthy that the balcony is in the form of projection of about 3 ft. long stone slabs and by putting the heavy weight of the wall of about 12 ft. high on th stone slabs, the defendants have endangered the entire chhajja (the balcony) because the projection of the stone slabs was never intended to bear the heavy load of a pucca bricks wall. Moreover the balcony has been closed with the intention of including the open space of the balcony as part of the rooms so that the area of the room may be enlarged. Moreover the balcony has been closed with the intention of including the open space of the balcony as part of the rooms so that the area of the room may be enlarged. However, such a construct on towards the frontage of the building which has opening on the main Jamuna Kirana Agra Road has not only disfigured the premises but has also diminished the value and utility of the premises as stated above." And went on to allege that this material alteration was made without permission or consent or notice. The tenants in their written statement have not denied the aforesaid constructions but in the following paragraphs, they have admitted the constructions using 7 steel girders which is to the following effect : "In para No. 7 (ii) it is incorrect to say that the stone slabs are supported only by the wall. The fact is that beside the support of the wall, it also has the support 7 (seven) steel girders which run across the length of the chajjas at every 2 ½ ft. These full length girders are strongly embedded in the concrete of the floor. This has contributed significantly to the strength of the structure as well as made it more aesthetic and dependable so 20 years have now passed without any problem at all." And in paragraph 8, the tenant has admitted that no written permission was necessary in the following words : "That para No.8 of the plaint wrongly numbered as 7, is not admitted and is denied. The defendants have not made any addition or alteration and constructions as alleged. In any aspect of the case, no written permission was necessary. The truth of the matter is that in 1978 due to unprecedented heavy floods in Jamuna river, the property was submerged to the extent of 14 feet of water and the defendant No. 1 had to spend huge amount in repairing the property and saving the property from total collapse." 11. These allegations have been proved by the respective parties. Thus, the revisional court committed a manifest error of law which is evident on the face of it in holding that there was no evidence to prove that the tenants had used steel girders to support the stone slabs over the projected balcony. These allegations have been proved by the respective parties. Thus, the revisional court committed a manifest error of law which is evident on the face of it in holding that there was no evidence to prove that the tenants had used steel girders to support the stone slabs over the projected balcony. It is admitted to the parties that the building was an extremely old one and the balcony was only a projection without any support and adding weight of the slabs on it, would be putting huge pressure on the floor of the balcony. 12. Apart from that, the balcony overlooking the river has its own charm and by enclosing it, not only its utility but its facade was completely changed without the consent of the landlord. Even otherwise, the Apex Court in the case of Vipin Kumar vs. Roshan Lal Anand has observed that the value or utility of the building has to be examined from the stand point of the landlord and not the tenant. Further, the revisional court has not at all applied its mind to the finding recorded by the trial court with regard to the requirement of Section 29 of the Act. Thus, the argument of the learned counsel for the petitioner is bound to be accepted. 13. On the question of joint tenancy the trial court found that there was no denial of the affidavit of the landlord that Mahesh Prasad used to come to India and stay in the house after every six months. It considered the fact that registered summons and notices in the case were duly served at the address of the disputed premises which was personally received by Mahesh Prasad who had not only filed his written statement but had also filed counter affidavits and appeared for cross examination. The trial court found that a telephone connection was installed in the disputed premises in the name of Mahesh Prasad and rent receipts were issued in his name and payments made. It also found that municipal water connection was also in the name of both the brothers. After considering all these aforesaid evidences, it found that though Mahesh Prasad was working in the U.S. but he continued to occupy the disputed premises and therefore, was a joint tenant. It also found that municipal water connection was also in the name of both the brothers. After considering all these aforesaid evidences, it found that though Mahesh Prasad was working in the U.S. but he continued to occupy the disputed premises and therefore, was a joint tenant. However, the revisional court on the same evidence has drawn a different conclusion without holding that the conclusion drawn by the trial court was either based on no evidence or inadmissible evidence or in fact had overlooked such evidence. This approach of the revisional court was apparently illegal in view of the decision of the Apex Court in Naicket's case (supra). 14. Since the argument on these two issues itself has been accepted, the petition is bound to be allowed and the other points urged on behalf of the petitioner would become academic. 15. For the reasons above, this petition succeeds and is allowed and the impugned order dated 3.9.2007 is hereby quashed and that of the trial court is restored. 16. In the circumstances of the case, no order as to costs.