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2011 DIGILAW 2535 (ALL)

Jitendra Kumar Dwivedi v. Munni Devi and others

2011-11-08

SHASHI KANT GUPTA

body2011
Shashi Kant Gupta, J.;- 1. The present writ petition has been filed against the judgement and order dated 6.8.2002 passed by the the Additional District Judge, Court No. 14, Agra in Civil Revision No. 12 of 2008 upholding the judgement and decree dated 5.12.2000 passed by the Judge Small Cause Court, Agra whereby the suit No. 90 of 1996 filed by the plaintiff respondent for arrears of rent and ejectment was decreed in his favour. 2. The facts of the case as set out in the writ petition, are recapitulated as follows: 3. The petitioner is the tenant of the premises in dispute. A suit, being suit no. 90 of 1996, for arrears of rent and ejectment was filed by the lanlord respondents against the petitioner, his father Sharda Prasad Dwivedi and brother Narendra Kumar Dwivedi. In the said plaint it was pleaded that the defendants committed default in paying rent from 7.9.1990, hence a registered notice under Section 106 of Transfer of Property Act ( in short 'T. P. Act') on behalf of the plaintiff was served upon the defendants on 16.3.1995 and when in spite of service of notice the defendants neither paid the arrears of rent nor vacated the premises in dispute, the plaintiff filed the said suit on 18.3.1996 for arrears of rent and ejectment. 4. The father of the petitioner Sharda Prasad Dwivedi appeared before the court on 24.9.1996 and thereafter on his request the matter was adjourned on several occasions and, ultimately, it was only on 22.1.1997 he filed his written statement and contested the suit alleging himself to be the owner of the disputed premises and denied the landlord- tenant relationship. In the meantime, service of notice was also effected upon the petitioner who also filed his written statement on 28.10.96 and deposited the alleged amount purported to be under section 20(4) of U.P. Act NO. 13 of 1972 ( in short the ' Act') and admitted the landlord and tenant relationship. 5.After hearing the learned counsel for the parties and considering the evidence led by the rival sides, the trial court held that the defendants have committed default in payment of rent. 13 of 1972 ( in short the ' Act') and admitted the landlord and tenant relationship. 5.After hearing the learned counsel for the parties and considering the evidence led by the rival sides, the trial court held that the defendants have committed default in payment of rent. The trial court further held that since the rent was not deposited by the defendants on the first date of hearing, the defendants are not entitled to the benefit of Section 20(4) of the Act and, therefore, the plaintiff respondents were justified in terminating the tenancy and the defendants are also liable to be evicted under section 20(f) of the Act for denying the title of the landlord. The trial court, thereafter, decreed the suit for arrears of rent and ejectment in favour of the landlord respondents by judgement and decree dated 5.12.200. 6. Being aggrieved and dissatisfied with the said order, a revision, being Civil Revision NO. 12 of 2008, was filed by the petitioners which too was dismissed on 6.8.2002 by the Addl. District Judge, court no. 14, Agra. 7. Learned counsel for the petitioners submitted that the impugned orders suffer from manifest error apparent on the face of record and the same are liable to be set aside by this court. He mainly argued that the amount under section 20(4) of the Act was deposited on the first date of hearing and, therefore, the courts below committed illegality in not giving benefit of the said section to the petitioner. He further submitted that any contention or admission made by his father has no binding effect upon the petitioner who has deposited the amount under section 20(4) of the Act on the first date of hearing. He further submits that, in fact, the petitioner had never denied the title of the landlord, as such any contention contrary to that by his father ( co tenant) is not binding upon him and merely on that basis no adverse reference can be drawn against the petitioner. 8. Per contra, learned counsel for the plaintiff respondents, refuting the allegations made by the petitioners, submitted that the orders passed by the courts below are just and proper and the same do not suffer from any illegality warranting any interference by this court. 8. Per contra, learned counsel for the plaintiff respondents, refuting the allegations made by the petitioners, submitted that the orders passed by the courts below are just and proper and the same do not suffer from any illegality warranting any interference by this court. He further submits that, in fact, the tenancy was inherited by the petitioner, his father Sharda Prasad Dwivedi and his brother Narendra Kumar Dwivedi as joint tenants of the disputed premises who were residing in the disputed premises jointly. 9.Heard learned counsel for the parties and perused the record. 10. It was not disputed that the the petitioner was in arrears of rent since 1990 and in spite of service of notice under section 106 of T.P. Act no rent was paid by the tenant. It has also not been disputed that the mother of the petitioner was the original tenant and after her death the tenancy was inherited jointly by the petitioner, his father Sharda Prasad Dwivedi and brother Narendra Prasad Dwivedi, as such the heirs and legal representatives of the deceased tenant are joint tenants and they inherited the tenancy as a single tenant and not as tenants- in - common. The suit was, admittedly, filed on 18.3.1996 and after service of summons the father of the petitioner appeared before the court on 24.9.1996 and after seeking several adjournments filed his written statement on 22.1. 1997 and the petitioner filed his written statement on 25.10.1998 and deposited the alleged amount purported to be under section 20(4) of the Act on 24.10.1998 i.e. after one year and three months of the date of first hearing. Both the courts below have recorded categorical findings of fact that the alleged amount was not deposited on the first date of hearing. The courts below have held that the first date of hearing was 17.7. 1997 but the alleged amount under section 20(4) of the Act was deposited on 24.10.1998 i.e. after more than 15 months. It is also pertinent to mention here that the father of the petitioner, who is, admittedly, a joint tenant of the premises in dispute, had filed his written statement on 22.1.97 and denied the relationship of landlord and tenant between the parties. The courts below taking a lenient view in the matter instead of treating 22.1. It is also pertinent to mention here that the father of the petitioner, who is, admittedly, a joint tenant of the premises in dispute, had filed his written statement on 22.1.97 and denied the relationship of landlord and tenant between the parties. The courts below taking a lenient view in the matter instead of treating 22.1. 1997 as the first date of hearing, treated 17.8.1998 as the first date of hearing and even on that date no amount under section 20(4) of the Act was deposited by the defendants. 11. The law is, now, well settled that after the death of original tenant his heirs/legal representatives become only joint tenants and not tenant- in ? common. In this connection the learned counsel for the plaintiff landlord relied upon the decision in Harish Tanton Vs. Addl. District Judge, Allahabad and others : 1995 ( 1) ARC 220 (SC) wherein it was held by the Apex court that after the death of the original tenant, his heirs/legal representatives become only joint tenants and not tenant - in- common and they do not inherit the tenancy rights as tenants in common. It is a single tenancy which devolves on the heirs and there is no division of the premises or of the rent payable. 12. In view of the above, it is clear that the petitioner and his father Sharda Prasad Dwivedi, being joint tenants of the disputed premises, the tenancy rights devolve on them jointly and any act of the father of the petitioner has binding effect upon the petitioner. 13. The courts below have also held that the father of the petitioner had filed written statement categorically denying the title of the landlord and claimed himself to be owner/landlord. However the said contention was rejected by the courts below after a detailed discussion in the order. The courts below further held that the father of the petitioner was simply a joint tenant of the disputed premises and inherited the tenancy right from the original tenant Prem Kumari, as such the courts below were fully justified in holding that, since the father of the petitioner denied title of the landlord, the petitioner was liable to be ejected under section 20 (2)(f) as well as under section 20(2)(a) of the Act. 14. 14. The Courts below, on the basis of the materials available on the record, recorded a finding of fact that the petitioners have committed default in payment of the rent. The findings so recorded by the courts below are just and proper and I do not find that the courts below committed any illegality or perversity in recording the said findings. 15. This court in the case of Church City Junior High School Shiksha Samiti and another Vs. Mahendra Kumar Jain and others : 2006(1) AWC 53 has held in para 2 as follows: " In my opinion, the facts of Ghoorery Lal (supra) are applicable with full force to the facts of the present case so far as the denial of the title is concerned. Learned cousnel for the petitioner relied upon the decision of this Court in Hari Ram Sahu Vs. Dr. Ramesh Chandra Agarwal, 2004(3) AWC 2737 : 2004(56) ALR 310, wherein this Court has upheld the decision of the trial court that the tenant in case of Hari Ram Sahu is entitled for the benefit of Section 20(4) of the Act has been upheld by the revisional court. It is apparent that the case relied upon by the learned counsel for the petitioner is not applicable and the case of Ghoorey lal has application with full force. In the teeth of the finding that the tenant has denied the title of the landlord which has not been demonstrated to be either perverse or erroneous in law. I do not find that the petitioner can succeed on this account also. This argument is rejected." 16. The courts below, after meticulously examining the entire materials on record, have given a cogent, convincing and satisfactory reasons while decreeing the suit of the plaintiff in his favour. Since the findings recorded by the courts below are neither perverse nor based on any extraneous consideration or irrelevant material, this Court, while exercising its power under Article 226 of the Constitution of India, can not substitute its opinion for the opinion of the courts below unless it is found that the conclusion drawn by the courts below is manifestly illegal and perverse. The courts below have recorded a categorical finding that the petitioners have committed default in payment of the rent. 17. The courts below have recorded a categorical finding that the petitioners have committed default in payment of the rent. 17. In view of what has been discussed, herein above, I do not find any illegality, infirmity or perversity in the impugned orders which may warrant any interference by this Court. 18. In the result, the writ petition fails and is dismissed.