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2012 DIGILAW 1646 (ALL)

Bhoori (Smt. ) v. Maulana Mohd. Yaqub & Anothers

2012-07-24

SUDHIR AGARWAL

body2012
Hon'ble Sudhir Agarwal,J. Heard Sri Chetan Chatterjee, learned counsel for the petitioner and perused the record. 2. This petition is directed against the order dated 16th of August, 2011 passed by Judge, Small Causes Court, Saharanpur in SCC Suit No. 68 of 2003 decreeing the suit for eviction and recovery of arrears of rent and revisional order dated 30th of May, 2012 passed by Additional District Judge, Court No. 11, Saharanpur dismissing revision. 3. Firstly, counsel for the petitioner submitted that both the courts below have not considered her submission that it is only a vacant land which was leased out to petitioner's ancestors long back and the construction thereon was not made by landlord and, therefore, the impugned judgments are liable to be quashed. Secondly, it is contended that property in dispute was sold to respondent no. 3 during the pendency of suit and, therefore, suit was not maintainable in view of Section 109 of the Code of Civil Procedure. 4. The courts below have considered the above submissions and from the judgment of the revisional court, it is evident that petitioner herself has given contradictory statement in her oral statement. On the one hand she stated that when she came after marriage in the "present house", the building was not constructed and they use to reside in Angan and on the other hand, she stated that the land was vacant at that time and they use to reside by putting down a polythene sheet. Existence of an Angan in open land is inconceivable where there is no construction. Similarly in subsequent part of oral statement, she admitted that the rent of "disputed building" was paid to Mohd. Yaqub and receipt are also in her possession but it is admitted fact that no such receipt was ever produced before the courts below. These statements of petitioner have been referred and considered by both the courts below and they have discarded to believe petitioner's contention that the house was constructed by the petitioner's husband and his brothers. 5. Both the courts below have recorded concurrent findings of fact and in absence of any perversity, there is no reason to interfere with the impugned orders. 5. Both the courts below have recorded concurrent findings of fact and in absence of any perversity, there is no reason to interfere with the impugned orders. So far as the transfer of property in question during the pendency of suit is concerned, it is not in dispute that tenancy of petitioner was terminated by landlord and he has proceeded for eviction by filing a suit hence the rights to persue the suit are succeeded to the petitioner. 6. In view of above, no error apparent on the face of record is shown warranting interference with the impugned orders. 7. Dismissed. _