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2012 DIGILAW 374 (ALL)

Suman Singh and another v. Bharat Lal and another

2012-02-09

SIBGHAT ULLAH KHAN

body2012
Sibghat Ullah Khan, J.;- Heard learned counsel for the parties. On 30.11.2011 when arguments were heard in these appeals and judgment was reserved only Second Appeal No.423 of 2008 was on the list. However learned counsel for both the parties stated that against the same judgments which were challenged through through Second Appeal No.423 of 2008, another Second Appeal i.e. Second Appeal No.463 of 2008 was also pending in which same learned counsel were appearing. Accordingly, file of the said second appeal was also summoned and arguments were heard in both the appeals. These second appeals arise out of O.S. No.296 of 2000 filed by Bharat Lal and his wife Smt. Shila Devi against Smt. Suman Singh and her husband Devendra Kumar Singh. Plaintiffs respondents alleged that they were tenants of the property in dispute on behalf of defendants appellants and they sought a decree for permanent prohibitory injunction seeking to restrain the defendants respondents from either interfering in the possession of the plaintiffs or evicting them forcibly except in accordance with law. The defendants appellants pleaded that plaintiffs respondents were not the tenants they were licencees and the licence had been terminated. Defendants also filed counter claim for possession. Additional Civil Judge, Junior Division, Court No.5, Varanasi through jdugment and decree dated 24.08.2007 dismissed the suit and decreed the counter claim of the defendants directing the plaintiffs to deliver possession to the defendants. Against the said jdugment and decree plaintiffs respondents filed Civil Appeal No.82 of 2007. Defendants appellants also filed Cross Appeal No.91 of 2007 as the trial court had not awarded any damages/ mense profits to them. The lower appellate court/ A.D.J., Court No.8 Varanasi allowed the appeal of the plaintiffs respondents and dismissed the appeal of the defendants. The suit was decreed and counter claim was dismissed. These appeals have been filed against the decree passed by the lower appellate court dated 22.01.2008. Plaintiffs claimed that initially Smt. Bhagirathi Devi was owner of the house in dispute and maternal grandfather of plaintiff No.1 Hari Prasad was tenant of the same at the rate of Rs.7/- per month and after the death of Hari Prasad tenancy was inherited by his son and daughter Pyari Devi and after the death of Pyari Devi plaintiff No.1, who was her son inherited the tenancy and the rent had been enhanced from Rs.7/- per month to Rs.30/- per month. Defendants purchased the property in dispute from Smt. Bhagirathi Devi. Defendants admitted that initially Hari Prasad was tenant of the house in dispute on behalf of the previous owner, however they asserted that Hari was not the same person who was maternal grandfather of plaintiff No.1. It was further asserted by the defendants that after the death of Hari his only son Lahbar became tenant, however he was in service in Orrisa, hence he vacated the house. It was further pleaded by the defendants that Smt. Pyari Devi mother of the plaintiff No.1 sold her house (another one) on 10.05.1994 for Rs.80,000/- and then requested the defendants to give the house in dispute to her on licence which was accordingly done by the plaintiffs. The lower appellate court held that in the very sale deed dated 10.05.1994 which was relied upon by the defendants, it was mentioned that Smt. Pyari Devi was residing in the house in dispute. Through the said sale deed Smt. Pyari Devi had sold some other house which belonged to her. It appears that after the dispute was raised between the parties, some well-wishers and officials got the dispute settled and according to the settlement it was agreed that by a particular date plaintiffs would vacate the house in dispute otherwise defendants would be entitled to take legal action. The compromise even if entered into could not authorise the defendants to forcibly evict the plaintiffs. The said compromise also did not amount to admission of the plaintiffs that they were licencees. Lower appellate court further held that defendants had stated that Lahbar was son of original tenant who was working at Orrisa and plaintiff also admitted that his mother's brother was Lahabar @ Suresh Kumar and he worked at Rourkela, Orrisa. Lahabar @ Suresh Kumar appeared as witness. He stated that after getting the employment in Orrisa he went there and in the house in dispute his father and his sister i.e. mother of plaintiff No.1 started residing as tenant. DW-1 admitted that the name of son of Hari was Suresh @ Lahabar. Photostat copy of the sale deed dated 10.05.1994 was filed by the defendant himself. The property which was sold by plaintiff on 10.05.1994 was purchased by his mother on 27.06.1987 copy of which was also filed before the trial court. DW-1 admitted that the name of son of Hari was Suresh @ Lahabar. Photostat copy of the sale deed dated 10.05.1994 was filed by the defendant himself. The property which was sold by plaintiff on 10.05.1994 was purchased by his mother on 27.06.1987 copy of which was also filed before the trial court. In the sale deed of 1987 also mother of the plaintiff stated her residence of the house in dispute. Lower appellate court from this fact rightly inferred that even in 1987 mother of the plaintiff No.1 was residing in the house in dispute. Prior to the sale deed dated 10.05.1994 mother of plaintiff No.1 had executed agreement for sale on 28.09.1993 and in that also she had shown her residence of the house in dispute. Death certificate of Hari Prasad maternal grandfather of plaintiff No.1 dated 11.2.1986 was filed in which residence was shown of the house in dispute. Death certificate of wife of Hari Prasad dated 17.04.1970 was also filed in which also her address was shown of the house in dispute. Certificate of a bank was also filed which was dated 21.02.1983 showing the address of the plaintiff No.1 of the house in dispute. Death certificate of mother of plaintiff No.1 dated 07.01.1994 was also filed, which showed her residence of the house in dispute. The compromise/ agreement dated 05.03.2000 was entered into in between the parties before S.H.O. concerned in which plaintiff promised to vacate the house by May, 2000. However in the said agreement it was not mentioned that plaintiffs were licencees. In the said agreement itself it was mentioned that in case plaintiff No.1 did not vacate by May 2000, defendant No.1 would be at liberty to initiate legal proceedings. Moreover even if a tenant after promising to vacate does not vacate, landlord cannot forcibly throw him out. If Rent Control Act is applicable then even such an agreement is not binding upon the tenant and he may be evicted only if any of the grounds for eviction as mentioned under Section 20 of U.P. Act No.13 of 1972 is made out. Findings recorded by the lower appellate court are findings of fact which are well reasoned and arrived at after taking into consideration entire evidence on record. The trial court without taking into consideration the entire evidence on record had held that plaintiffs were not the tenants. Findings recorded by the lower appellate court are findings of fact which are well reasoned and arrived at after taking into consideration entire evidence on record. The trial court without taking into consideration the entire evidence on record had held that plaintiffs were not the tenants. No question of law has wrongly been decided. Second appeals are therefore dismissed under Order XLI Rule 11, C.P.C.