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2012 DIGILAW 1039 (ALL)

Gulfam v. Akhtari Begum and others

2012-05-02

SHASHI KANT GUPTA

body2012
Shashi Kant Gupta, J.;- 1. This writ petition is directed against the order dated 23.7.2002 passed by Additional District Judge, Court No. 4, Agra in Revision No. 263 of 1997 (Gulfam Vs. Shaukat Hussain) and Revision No. 1 of 1998 (Shaukat Hussain Vs. Gulfam) and the order dated 6.11.1997 passed by Judge Small Cause Court, Agra whereby the suit filed for arrears of rent and ejectment was decreed. 2. Brief facts of the case as set out in the writ petition are as follows; 3. The predecessor-in-interest of the respondents namely Shaukat Hussain, filed a Suit No. 248 of 1992 against the petitioner for arrears of rent and ejectment from the shop in dispute on the ground of default in payment of rent as well as encroaching upon the adjoining shop illegally by breaking the wall between the two shops. The petitioner filed its written statement denying and disputing the allegations made in the plaint. The petitioner further denied the existence of relationship of landlord and tenant between the parties and claimed himself to be the owner of the shop on the basis of some agreement to sale alleged to have been executed by Shaukat Hussain in favour of the petitioner. The trial court after perusing the pleadings and evidence available on record decreed the suit for arrears of rent/damages but declined to pass decree for ejectment on the ground that the property in dispute was not identifiable. 4. Being aggrieved and dissatisfied with the impugned order, the petitioner as well as the Respondents-landlords filed separate revisions which were numbered as Revision No. 263 of 1997 (Gulfam Vs. Shaukat Hussain) and Revision No. 1 of 1998 (Shaukat Hussain Vs. Gulfam) respectively. The revisional court by judgment and order dated 6.11.1997 dismissed the revision No. 263 of 1997 filed by the petitioner and allowed the Revision No. 1 of 1998 whereby the suit for arrears of rent and ejectement against the petitioner was decreed in toto. Hence, the present writ petition. 5. Learned counsel for the petitioner has submitted that the orders passed by the court below are illegal and arbitrary, and are based on a complete misreading of the case and misconception of the legal position relevant to the matter, and has not considered the evidence available on record in right perspective. Hence, the present writ petition. 5. Learned counsel for the petitioner has submitted that the orders passed by the court below are illegal and arbitrary, and are based on a complete misreading of the case and misconception of the legal position relevant to the matter, and has not considered the evidence available on record in right perspective. He further submitted that the court below has erred in holding that the landlord and tenant relationship was existing between the parties. It was further submitted that the property in dispute is a waqf property and Saukat Hussain was not the landlord of the disputed property. 6. Per contra, learned counsel for the respondents submitted that the findings recorded by the court below are based on material available on record and is in accordance with law, therefore, no interference is called for. 7. Heard Sri B. D. Mandhyan, Senior Counsel assisted by Sri Om Prakash, learned counsel for the petitioner and Sri Santosh Kumar, learned counsel for the respondents and perused the record. 8. The main contention of the learned counsel for the petitioner was that the landlord and tenant relation ship was not existing between the parties. 9. This contention of the learned counsel for the petitioner does not have any force and is liable to be rejected outrightly. The record of the case shows that petitioner himself in his oral testimony has stated that agreement to sale was executed by the landlord Saukat Hussain in favour of the petitioner for a consideration of Rs. 25,000/- but subsequently sale deed was not executed by Shaukat Hussain. Meaning thereby that the petitioner himself admitted Shaukat Hussain as the owner of the disputed property. More so, the petitioner failed to produce any such agreement to sale before the court below to establish his claim. 10. The courts below have rightly held on the basis of the material available on record that there exists a relationship of landlord and tenant between the parties. The petitioner himself admitted that he was a tenant of the shop in dispute on behalf of one Rama Shanker and Rama Shanker admitted the claim of Shaukat Husain to be the owner/landlord of the property in dispute. The petitioner himself admitted that he was a tenant of the shop in dispute on behalf of one Rama Shanker and Rama Shanker admitted the claim of Shaukat Husain to be the owner/landlord of the property in dispute. Apart from this, there are receipts on record, which were duly proved by the landlord and as such on these materials the courts below rightly held that there exists a relationship of landlord and tenant. 11. It has also come on record that in respect to the shop in dispute there was earlier litigations between Rama Shanker and Shaukat Hussain and the shop in dispute was occupied by the petitioner on behalf of Rama Shanker. The said Rama Shanker filed a suit No. 626 of 1988 against Shaukat Husain for grant of prohibitory injunction restraining Shaukat Husain from dispossessing him from the property in dispute measuring 200 Sq. Yards, which included the shop in dispute. Another Suit No. 475 of 1989 was also filed by Rama Shanker against Shaukat Husain for the grant of a decree of specific performance of a contract of sale of the property including the disputed property alleged to have been executed by the Shaukat Husain. 12. From the allegations made in the two plaints, it is apparent that Rama Shanker was not the owner of the property in dispute, but he was claiming relief of specific performance against Shaukat Husain admitting him to be owner of the suit property including the disputed property. Both the suits continued and ultimately resulted in a compromise decree. In Suit No. 475 of 1989 a compromise was entered into between Rama Shanker and Shaukat Husain as a result both the suits were dismissed. In the said compromise, Rama Shanker accepted Shaukat Husain to be the owner of the suit property including the disputed property. 13. The perusal of the record further reveals that in support of the contract of tenancy the respondents filed receipts bearing signatures of the petitioner. Those signatures have been proved by the respondents, though denied by the petitioner. The petitioner examined his own expert and the respondents also examined their expert. The reports of both the experts were duly considered by the trial court and it accepted the report of the expert of the respondents. Those signatures have been proved by the respondents, though denied by the petitioner. The petitioner examined his own expert and the respondents also examined their expert. The reports of both the experts were duly considered by the trial court and it accepted the report of the expert of the respondents. Besides this, it is notable that the petitioner himself admitted that he was paying rent to Rama Shanker and Rama Shanker admitted the claim of the Respondents to be the owner and landlord of the property in dispute. Thus, on the basis of the appraisal of evidence, the trial court found that there exists a relationship of landlord and tenant between the respondents and petitioner and the said finding is a finding of fact and is binding on the petitioner. 14. The revisional court on the basis of cogent evidence on record held that the property was fully identifiable and in fact the petitioner after breaking the middle wall of the two shops had encroached upon the adjoining shop. The courts below also recorded a finding that property in dispute was not a waqf property. Findings of the court below on these issues are based on record and does not warrant any interference. 15. Both the courts below have recorded a finding of fact holding the Respondent to be the owner and landlord of the property in question. Both the courts below have held that the relationship of landlord and tenant was existing between the parties and also recorded a finding of fact that the petitioner was a defaulter in payment of rent and, therefore, was liable for arrears of rent with damages and ejectment. The said finding are based on record. 16. The revisional court has given cogent, convincing and satisfactory reasons while passing the impugned order. Reasons mentioned therein are good enough to satisfy the order and no fault can be found with the approach adopted by the courts below. This Court, while exercising its power under Article 226 of the Constitution of India, can not substitute its opinion for the opinion of the court below unless it is found that the conclusion drawn by the courts below is manifestly illegal and perverse. All the conclusions on the facts of the case are based on record. 17. This Court, while exercising its power under Article 226 of the Constitution of India, can not substitute its opinion for the opinion of the court below unless it is found that the conclusion drawn by the courts below is manifestly illegal and perverse. All the conclusions on the facts of the case are based on record. 17. In view of above, I do not find any illegality, infirmity or perversity in the impugned order which may warrant any interference. 18. In the result, the writ petition fails and is dismissed. 19. Lastly, learned counsel for the petitioner urged that at least four months' time may be granted to him for vacating the said shop. The learned counsel for the landlord did not raise any objection to it. 20. As urged by the learned counsel for the petitioners, four months' time is granted to the petitioner to vacate the premises in dispute provided he gives his undertaking in the form of an affidavit before the prescribed authority within one month from today specifically stating therein that he will handover the peaceful possession of the said accommodation to the respondents without inducting any third person within a period of four months from today and will pay the entire arrears of rent including the rent at the current rate upto the date of delivery of the possession, as indicated herein above. 21. In the event of default of any of the aforesaid conditions, the respondents will be at liberty to evict the petitioners with the aid of the police force.