Research › Search › Judgment

Allahabad High Court · body

2011 DIGILAW 1135 (ALL)

Amina Begum v. Chaturbhuj Sharma

2011-05-02

SHISHIR KUMAR

body2011
JUDGMENT Hon'ble Shishir Kumar,J. This is a defendant's second appeal arising out of a suit filed by the plaintiff-respondent for declaration as well as for possession after ejectment of the defendant-appellant. The suit giving rise to the above noted second appeal was filed by the plaintiff-respondent against the defendant-appellant for possession of the house in dispute treating them to be trespasser on the allegations made in the plaint. 2. In brief, it was pleaded that the plaintiff was the owner of the house no.86 situate in Mohalla- Chamanganj, Sipri Bazar, Jhansi which was occupied by Smt. Kulsoom Begum as a tenant who died. It was alleged that Smt. Kulsoom Begum had daughter who was residing separately in Mohalla- Sarafa Bazar along with her husband and as such she ceased to have any interest in the property in dispute. Defendant no.2 without any right is occupying the premisses as trespasser and, therefore, both are liable for ejectment. 3. The suit was contested by the defendant-appellant by filing the separate written-statement. The main defence was that the defendant-appellant is continuing as a tenant in the premises in dispute and the suit filed by the plaintiff against her was misconceived and is also barred by Section 20 of U.P. Act No. XIII of 1972. 4. On the basis of the pleadings of the parties, various issues were framed and parties were directed to adduce evidence. The main controversy was whether the defendant is a tenant of the premises in dispute or he is trespasser? In support of her case the defendant filed a certified copy of the municipal extract pertaining to the year 1979-87 in which under the orders of the Tax Superintendent, the name of the defendant-appellant was shown as a tenant. The said paper was 18-C filed before the Court. The court below has wrongly ignored the said paper on the ground that the same has been prepared during the pendency of the suit which is totally incorrect. The order of Tax Superintendent shows that the same was passed on 12.2.1987 whereas the instant suit was filed on 26.9.1987. It was also pointed out after making relevant inquiry that after giving notice to the plaintiff, the Tax Superintendent was pleased to record the name of the defendant-appellant as a tenant. The order of Tax Superintendent shows that the same was passed on 12.2.1987 whereas the instant suit was filed on 26.9.1987. It was also pointed out after making relevant inquiry that after giving notice to the plaintiff, the Tax Superintendent was pleased to record the name of the defendant-appellant as a tenant. The pass-book of the Savings Bank Account operated in Central Bank of India also shows the address as 86, Sipri Bazar, Jhansi. A ration card was also filed having address as 86, Sipri Bazar, Jhansi in the name of the defendant-appellant. The aforesaid documents are showing the occupation of the defendant in the premises in dispute but the trial court by means of the judgment and decree dated 18.8.1992 decreed the plaintiff's suit for the relief claimed. Being aggrieved by the aforesaid judgment and decree, the appellant filed an appeal in the Court of District Judge which was dismissed vide its judgment and decree dated 26.8.1994. Hence, the present appeal is being filed. 5. It was pleaded on behalf of the defendant-appellant that she is living continuously in the premises in dispute for the last several years as a tenant and plaintiff has obtained a wrong decree treating herself to be the trespasser. On behalf of the plaintiff-respondent, Paper No.51-C which is a document of Rent Control & Eviction Officer in Case No. 82 of 1981 Arvind Qureshi Vs. Ram Autar in which Smt. Zarina Begum has filed an affidavit and she as defendant in the said affidavit stated that Smt. Kusloom Begum till her life time was living with her and the landlord of House No.229 Sarafa Bazar, Jhansi has been got vacated by the landlord on 17.10.1984. The trial court on the basis of that has recorded a finding that Smt. Zarina Begum has admitted in her statement in Suit No.82 of 1981 that she was living in Sarafa Bazar till 17.10.1984. She wanted to clarify the aforesaid statement. A finding has been recorded that D.W.2 Smt. Zarina Begum only to make her case strong has given a wrong statement. From Paper No.51 C-1, it is clear that defendant no.2 Smt. Amina Begum was living in House No.229, Sarafa Bazar, Jhansi as tenant till 17.10.1984. From these documents and Paper No.25 C-2 and 26 C-2 it can clearly be inferred that defendant was living in the house from 1975 to 1980. From Paper No.51 C-1, it is clear that defendant no.2 Smt. Amina Begum was living in House No.229, Sarafa Bazar, Jhansi as tenant till 17.10.1984. From these documents and Paper No.25 C-2 and 26 C-2 it can clearly be inferred that defendant was living in the house from 1975 to 1980. After recording such finding the trial court has held that burden was upon the defendant that till death of Kusloom Begum, the defendant was living in the disputed house. The document as regards the ration card and voter list has not been filed on record. Therefore, it cannot be inferred that they were living in the said accommodation. As regards defendant no.2. a finding has been recorded that no rent was being deposited under Section 30 of Act No. XIII of 1972. If she was living as a tenant, then after refusal of the rent by the plaintiff-respondent, the rent should have been deposited under Section 30 of the Act but it has not been done by the defendant. So far as Zarina Begum is concerned, she does not come in inheritance of Sheikh Baboo and Kusloom Begum, therefore, she cannot be treated to be a tenant of the house in dispute. 6. After recording such finding, the trial court has decreed the suit for declaration and has directed that defendant is a trespasser and, therefore, she should be ejected from the premises in dispute. Aggrieved by the aforesaid order, the appeal has been filed. One of the issues raised on behalf of the appellant is that the courts below has committed an error apparent on the face of the record that Smt. Kusloom Begum in her life time and after her death, she was living in another House No.299 Sarafa bazar, Jhansi and in the disputed house they were not in possession of the said accommodation with the permission of the plaintiff. Smt. Kulsloom Begum cannot be said to be a legal tenant in the house in dispute. A finding has been recorded that the mother of defendant Smt. Kusloom Begum was the tenant and rent was being paid to Ram Autar Sharma and he was giving the receipt in the name of Kusloom Begum. Smt. Kusloom Begum and Shiekh Baboo have never taken the house on rent from the plaintiff and they have not paid any rent to the plaintiff-respondent. Smt. Kusloom Begum and Shiekh Baboo have never taken the house on rent from the plaintiff and they have not paid any rent to the plaintiff-respondent. Smt. Chandi Bai in her life time has executed a will in favour of the plaintiff and, therefore after her death, he became the owner of the property in dispute. After the death of Chandi Bai if any rent has been taken, that has been taken on behalf of the plaintiff. The appellate court has recorded a finding that Smt. Kusloom Begum has never taken the house in dispute on rent from the plaintiff. A finding has also been recorded that the plaintiff-respondent has filed documents 63-C and 65-C which are receipts in which Smt. Kusloom Begum has been shown as tenant. On the basis of the pleadings of the parties, the appellate court has recorded a finding that on the basis of the record, it is proved that both the defendants have accepted the plaintiff as landlord and owner of the property 7. As regards the contention raised by the appellant that earlier suit was got dismissed without permission, a specific finding on the basis of the relevant record has been recorded which has been quoted in the judgment of the appellate court that the earlier suit was dismissed with permission to file a fresh suit. Therefore, the contention of the appellant cannot be accepted that the second suit is barred by principle of res-judicata. The contention raised by the counsel on behalf of the appellant before the court as regards the fact that after the death of Sheikh Baboo, the rent was being paid by Smt. Amina Begum in view of the fact that her mother Kusloom Begum was left alone and Amina Begum and her husband was looking after Smt. Kusloom Begum but from the record it is clear that rent-receipt was being issued in favour of Smt. Kusloom Begum by the father of the plaintiff Sri Ram Autar Sharma. The burden was upon the defendant to prove that she was a joint tenant in the property in dispute. A finding of fact has been recorded that if after the death of original tenant, if his widow and daughter are not in possession of the property in dispute, then there will be a presumption that it has become vacant. The burden was upon the defendant to prove that she was a joint tenant in the property in dispute. A finding of fact has been recorded that if after the death of original tenant, if his widow and daughter are not in possession of the property in dispute, then there will be a presumption that it has become vacant. Admittedly, the original tenant died in 1947 leaving behind widow and two daughters. Daughters were married but as she left the house in question after marriage, she cannot be treated to be a tenant. Plaintiff has admitted this fact that till the death of Smt. Kusloom Begum she was living as tenant upto 1980. If her daughter Smt. Amina Begum was living in another accommodation, from the record it is clear that Smt. Amina Begum after the death of Sheikh Baboo, she was not living in the said accommodation and she was not living with her mother ordinarily. 8. Burden was upon the defendant to prove that after the death of Sheikh Baboo they were living as tenant in the said accommodation. The document filed on behalf of the defendant cannot be believed in view of the fact that before 1980 no document has been filed on behalf of the defendant to show that they were living as a tenant in the said accommodation. Copy of the ration card as well as voter list has not been field. As regards the house rent receipt, it is apparent that the entry is dated 12.2.1987. This document cannot be believed in view of the fact that the husband of Smt. Zarina Begum was an employee of the Nagar Palika, therefore, this document cannot be taken in to consideration. Further a finding of fact has been recorded that after the death of Kusloom Begum, Smt. Amina begum was never in possession of the house in dispute but she was living in House No.229 Sarafa Bazar, Jhansi with his daughter as well as son-in-law and she was not being treated as tenant after 5.5.1980. 9. A further finding has been recorded that the defendant has come with a case that as the rent was refused by the plaintiff-respondent, she sent it through Money Order. After refusal of the money order by the plaintiff, it was being deposited under Section 30 of the Act. 9. A further finding has been recorded that the defendant has come with a case that as the rent was refused by the plaintiff-respondent, she sent it through Money Order. After refusal of the money order by the plaintiff, it was being deposited under Section 30 of the Act. Defendant has not filed any document to show therein that defendant no.1 at any point of time has sent any money order and that was refused. No document to that effect has been submitted. If the tenancy has come to an end in the year 1980, then if she again occupied the house in question in 1984, she cannot be treated to be a tenant. Her position will be treated to be of an unauthorised occupant or she can be said to be a trespasser. A finding of fact has also been recorded that till 5.5.1980, Smt. Amina Begum was joint tenant with Smt. Kusloom Begum but she herself has left the tenancy, therefore, subsequently, if she occupied the premise, then it can easily be treated to be unauthorised occupant, therefore, it was not necessary to give a notice under Section 106 of the Transfer of Property Act or under U.P. Act No. XIII of 1972 because at that time, there was no relationship of the landlord and tenant. 10. The respondents have placed reliance upon a judgement reported in 1991 vol.-2, ARC Page 49. In para 17 of the judgment it has been held that if after the death of tenant, if the heirs have taken possession or living in other accommodation, the property in question will be deemed to be vacant. 11. In view of the aforesaid facts and circumstances, I am of opinion that finding recorded by the courts below are findings of fact and cannot be interfered with by High Court on reassessment of evidence under Section 100 of the Code of Civil Procedure. The appeal lacks merit and is hereby dismissed. No order is passed as to costs.