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2011 DIGILAW 613 (UTT)

SHANTI SHARMA v. ANIL KUMAR GUPTA

2011-09-28

B.S.VERMA

body2011
JUDGMENT (Stay Application No. 10206/2011) By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the impugned order dated 31.8.2009 and 27.5.2011 (contained as Annexure No. 7 and 10 to the writ petition). By judgment dated 31.8.2009, the learned Judge, Small Cause Court/III Additional Civil Judge (Senior Division) Dehradun (for short J.S.C.C.) has decreed S.C.C. Suit No. 31 of 1984 filed by the plaintiff-respondents Anil Kumar Gupta, Sushil Kumar Gupta and Naveen Kandari, which was filed for eviction, possession and for recovery of arrears of rent and damages against the defendant Durga Prasad Pande (since deceased) substituted by his legal heirs Capt. Wishwakant Pandey and others. By the order dated 27.5.2011, the learned revisional court has dismissed the revision filed by the petitioner Smt. Shanti Sharma against the judgment and decree dated 31.8.2009. 2. Relevant facts giving rise to the present writ petition, according to the petitioner, in brief, are that the plaintiffs-respondent nos. 1 to 3 herein filed a suit for eviction and for recovery of arrears of rent and damages against the defendant Durga Prasad Pandey (since deceased) alleging that the plaintiffs are the owner and landlord of the building known as High Land Cottage bearing Municipal No. 4/102 and 4/101-227-228 (for short property in dispute) situate at Mussoorie, district Dehradun. The property in dispute was given on annual rent @ Rs. 350/- to the defendant. The property in dispute belonged to late Jyoti Bhusan Gupta, who had died in the year 1974 and after his death the said property came to the share of the plaintiffs Anil Kumar and Sushil Kumar Gupta. The plaintiffs have a right to file the suit. The rent of the property in dispute was attached for recovery of income tax by the Income Tax Department and now the plaintiffs have already deposited the entire outstanding income tax. The tenancy of the defendant was terminated by the plaintiffs by notice dated 4.9.1971, but the defendant has neither paid arrears of rent nor vacated the property in dispute nor gave possession thereof to the plaintiffs. According to the plaintiffs, the defendant had not paid any rent since 1.4.1958 but the plaintiffs have only claimed rent for the period of last three years. The occupation of the petitioner on the property in dispute is illegal since the tenancy had already been terminated. 3. According to the plaintiffs, the defendant had not paid any rent since 1.4.1958 but the plaintiffs have only claimed rent for the period of last three years. The occupation of the petitioner on the property in dispute is illegal since the tenancy had already been terminated. 3. The defendant Durga Prasad Pande (since decased) contested the suit by filing his written statement contending therein that the defendant has acquired rights and title on the basis of his adverse possession and that the declaratory suit No. 169 of 1984 is pending in the court of Civil Judge, Dehradun. The suit of the respondents is not maintainable. 4. During the pendency of the suit, the sole defendant Durga Prasad Pande had died. He has been substituted by his legal heirs Smt. Shanti Sharma and others. 5. On the pleadings of the parties the learned J.S.C.C. framed as many as five issues/points for determination. The learned J.S.C.C. after hearing the parties came to the conclusion that the defendant had defaulted in payment of rent and that the defendant had failed to establish his adverse possession. It was further held that the defendant has fallen in arrears of rent since 20.6.1956. It was further held that the tenancy of the defendant stood determined by notice dated 4.9.1971 and that the defendant had not complied with the said notice. Ultimately, the learned J.S.C.C. decreed the suit of the plaintiff-respondents by judgment and decree dated 31.8.2009. 6. Aggrieved, the petitioner Smt. Shanti Sharma filed revision before the District Judge, which was registered as S.C.C. Revision No. 12 of 2009. The learned revisional court did not find favour with the revisionist-petitioner and by a detailed order dated 27.5.2011 dismissed the revision and upheld the judgment and decree dated 31.8.2009, which gave rise to the present writ petition. 7. The main ground challenge raised in this writ petition is that the suit of the plaintiff-respondent is not maintainable because the same has not been brought within a period of 12 years of the limitation and that the two courts below have lost sight of this important aspect that the possession of the defendant became hostile against the landlord owner. 8. This Court in exercise of writ jurisdiction cannot sit like a court of appeal and cannot re-appreciate or reevaluate the evidence so as to arrive at a different conclusion. 8. This Court in exercise of writ jurisdiction cannot sit like a court of appeal and cannot re-appreciate or reevaluate the evidence so as to arrive at a different conclusion. Only perversity in the impugned order can be seen to find out whether there is a case of mis-reading of evidence by the courts concerned. 9. In the case “Ranjeet Singh Vs. Ravi Prakash” [(2004) 3 S.C.C. page 682], the Apex Court has observed inter alia in paragraph 4 of the judgment that ‘An error which needs to be established by lengthy and complicated arguments or by indulging in a long-drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also, it has been held in Surya Dev Rai that the jurisdiction was not available to be exercised for indulging in reappreciation or evaluation of evidence or correcting the errors in drawing inferences like a court of appeal.” 10. The Apex Court in the case of Shamshad Ahmad and others Vs. Tilak Raj Bajaj (Deceased) through L.Rs. and others [(2008) 9 Supreme Court Cases, 1] while dealing with Articles 226 and 227 of the Constitution of India has observed as under :- “38. Though powers of a High Court under Articles 226 and 227 are very wide and extensive over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction, such powers must be exercised within the limits of law. The power is supervisory in nature. The High Court does not act as a court of appeal or a court of error. It can neither review nor reappreciate, nor reweigh the evidence upon which determination of a subordinate court of inferior tribunal purports to be based or to correct errors of fact or even of law and to substitute its own decision for that of the inferior court or tribunal. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts and inferior tribunals within the limits of law.” 11. The powers are required to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts and inferior tribunals within the limits of law.” 11. Learned counsel for the petitioner has vehemently contended that the tenancy of the defendant Durga Prasad Pandey had been terminated after a period of six months of the notice dated 4.9.1971 and not from the date of notice. The petitioner has annexed copy of the notice as Annexure No. 1 to the writ petition. Since the suit has been filed after 12 years, therefore, the suit is not maintainable. In support of his contention, the learned counsel for the petitioner has placed reliance upon the case of Hakim Ziaul Islam Vs. Mohd. Rafi [AIR, 1971, Allahabad, Page 302], wherein it has been held that a notice which terminates tenancy in present and demands possession of rented premises within one month of the receipt thereof is not the same thing as a proper notice to quit manifesting intention of terminating tenancy “on expiry of month from receipt thereof” within meaning of Section 111(h) read with Section 106 of the Transfer of Property Act, 1882. 12. I have considered the argument of the learned counsel for the petitioner. 13. So far as the plea of adverse possession raised in the written statement filed by the defendant in his written statement is concerned, the argument of the learned counsel for the petitioner has no force for the simple reason that in the judgment and decree dated 31.08.2009, the trial court has elaborately dealt with the plea raised by the defendants in this case. 14. On behalf of the defendants, D.W.2-Capt. Vishwakant Pandey, who is son of the defendant Durga Prasad Pandey, has filed his affidavit 120C/4 before the trial court. At page 12 of the impugned judgment, the trial court has observed that D.W.2 in the cross-examination has clearly stated that his father had requested the plaintiffs Anil Kumar and Sushil Kumar to sell the disputed property on moderate sale consideration and that the defendants are still ready to purchase the property in dispute at reasonable rate even on the date of evidence. This observation made in the trial court judgment while dealing with issue No. 1 clearly goes to show that the defendants claim themselves to be the tenants and their plea of adverse possession for the purposes of the present case have got no substance. A person claiming adverse possession would not state that he is ready to purchase the disputed property on reasonable rate. This is inter alia a very strong circumstance against the case of the petitioner. 15. So far as the notice of termination filed by the petitioner is concerned, the two Courts below have elaborately dealt with this point in their judgments. I have also perused the notice dated 4.9.1971. The trial court has framed point no. 3 on this plea and has dealt with the same at page nos. 15-16 of the judgment. In the case before the Allahabad High Court, the tenancy was month to month and in the notice it was stated thus “Your tenancy of the aforesaid house is determined with effect from today.” But in the case at hand, the language of the notice is quite distinct and the defendant was called “to pay to my clients the entire arrears mentioned above and to vacate the said premises after occupying the same for six month.” It is admitted case of the parties that the tenancy of the defendant Durga Prasad Pandey was annual. Therefore, the defendant was rightly asked to vacate the said premises after expiry of six months. The case-law relied upon by the petitioner is distinguishable. There is concurrent finding of fact recorded by the two courts below against the defendant-petitioner. 16. Having considered the submissions of the learned counsel for the petitioner and having gone through the entire material placed before this Court, I am of the view that the plea of adverse possession raised by the petitioner has been rightly declined by the two courts below and the objection of the petitioner against the notice of termination does not call for any interference by this Court in writ jurisdiction. I do not find any perversity in the impugned orders. The writ petition being devoid of merit is liable to be dismissed at the admission stage. 17. The writ petition is dismissed summarily. I do not find any perversity in the impugned orders. The writ petition being devoid of merit is liable to be dismissed at the admission stage. 17. The writ petition is dismissed summarily. However, to do complete justice, the petitioner is granted one year’s time to vacate the disputed premises and to deliver its vacant and peaceful possession to the landlords-respondent nos. 1 to 3, provided the petitioner furnishes a written undertaking to that effect before the learned J.S.C.C. within a period of ten weeks from today. In case of default, the landlords would be at liberty to get the disputed premises vacated in accordance with law. 18. All pending applications also stand disposed of.