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Allahabad High Court · body

2012 DIGILAW 687 (ALL)

Ram Pher (dead) v. XIth Additional District Judge, Faizabad and two others

2012-03-21

SHABIHUL HASNAIN

body2012
Shabihul Hasnain, J.— This writ petition is directed against the judgment and order dated 7.8. 1999 passed by Addl. District Judge, Faizabad dismissing the revision filed by the petitioner, against the order dated 2.9.1996 passed by Judge, Small Causes, Faizabad decreeing the suit filed by Ram Dularey- opposite party no. 3, for ejectment and arrears of rent with respect to house in dispute. In short the facts of the case are that plaintiff- opposite party no. 3 claiming himself to be land of house no. 9/5/57 situated at Mohalla Taksal, Faizabad through a registered sale deed dated 17.8.1983 filed a suit for ejectment and arrears of rent. Plaintiff informed the petitioner about the purchase of the house vide sale deed dated 17.8. 1983. The petitioner had been the tenant of the house since before the said sale deed, as alleged by the plaintiff-opposite party no.3, @ Rs.40/- per month. It was alleged by the plaintiff-opposite party no.3 in the suit that the respondent- petitioner did not pay the rent since the time of previous owners of the said house. The tenancy in this case is admitted. The only the amount of rent is in dispute. A notice dated 5.3. 1992 is said to have been issued to the petitioner-respondent, who has replied the said suit while disputing the rater of rent, saying that he is tenant @ Rs.5/- per month from the life of his father and not Rs.40/- as alleged by the plaintiff- opposite party no. 3 in his notice dated 5.3. 1992. It has been averred that since the petitioner- respondent, despite the service of notice upon him, did not pay arrears of rent as per condition of notice, hence he filed the suit for ejectment and arrears of rent. The suit was contested by the petitioner- respondent on the ground that earlier the house in question was taken by his mother on rent @ Rs.2/- per month, and lateron it was increased to Rs.4/- per month and the rent was being paid to the erstwhile owners of the house in dispute. On receiving the notice, the rent along with the reply of notice was sent to the plaintiff, but he did not accept the same. He had filed the written statement along with the arrears of rent. On receiving the notice, the rent along with the reply of notice was sent to the plaintiff, but he did not accept the same. He had filed the written statement along with the arrears of rent. The issues framed by the trial court were to the effects; whether the rate of rent of the dispute house is Rs.40/- per month, as has been averred in the plaint; whether after the sale deed dated 17.8.1983, despite of demand made by the plaintiff, any rent was paid by the petitioner- respondent; whether rent sent through money order by the petitioner- respondent was refused by the plaintiff, as has been said in the written statement, if yes, its effect; whether the petitioner- respondent got the house sub-letted or made any alteration in the house in dispute and whether the notice sent by the plaintiff- opposite party no. 3 was valid; the relief. In nutshell, the disposal of this writ petition rests upon the quantum of rent and its default by the petitioner- respondent. The tenancy in this case is admitted. So far the proof of the rate of rent is concerned, before the trial court, there is no mention in the sale deed about the same, as has been admitted by the plaintiff. The plaintiff has also not filed any material before the trial court to establish the rate of rent, as has been held by the trial court. On the other hand, the petitioner- respondent, in his cross-examination made by the plaintiff, has admitted the rate of rent as Rs.5/- per month. The trial court further held that from the reply submitted by the petitioner- respondent, which has been scrutinized by the trial court, it is clear that the rent was Rs 5/- per month. The trial court rightly said that it was for the plaintiff to have established the rent to be @ Rs.40/- per month. The plaintiff has admitted in his statement that the petitioner- respondent did not pay the rent in his presence, to the previous owners. He has declared the rent on hearsay, being the information given by one Sukhnandan Prasad. From the material on record, the trial court held that rate of rent is Rs.5/- instead of Rs.4/- as alleged by the petitioner- respondent and further that the neither petitioner- respondent pay the rent till date to the opposite party no. He has declared the rent on hearsay, being the information given by one Sukhnandan Prasad. From the material on record, the trial court held that rate of rent is Rs.5/- instead of Rs.4/- as alleged by the petitioner- respondent and further that the neither petitioner- respondent pay the rent till date to the opposite party no. 3- plaintiff nor he has received the rent. The rent is payable and is in arrear from 17.8. 1983. On the question of refusal of rent by the plaintiff, it was held by the trial court that it appears that the plaintiff could have refused to accept the money order, since it was sent @ Rs.4/- and not @ Rs.5/- as has been declared while deciding issues no. 1 and 2 and since the rent was not tendered @ Rs. 5/- then it can be presumed that on receiving the notice, which is not disputed, the petitioner- respondent did not pay the complete rent, therefore the suit was rightly filed by the petitioner. It was found that the plaintiff could not be able to prove that any alteration has been made by the petitioner- respondent in the house in question or there is any sub-letting by him. Therefore, since the petitioner has not paid the rent @ Rs.5/-, he committed default and further has not deposited the rent along with interest, on the first date of hearing of the suit, the plaintiff was entitled to receive the arrears of rent. In view of this matter, the trial court has rightly decreed the suit filed by the plaintiff- opposite party no. 3 for ejectment and arrear of rent. While deciding the amount of rent, the trial court as well as the revisional court both, have gone through the copies of statement of one Kishan Lal, recorded in suit no. 260/83 Surendra Kumar vs. Ram Pher( the petitioner of this petition), filed by the plaintiff, in which Ram Pher was respondent no. 1, in which Kishan Lal has admitted that earlier the rent of his portion was Rs.3/- and thereafter it was changed to Rs. 4/- and thereafter, it was increased to Rs.5/-. There are also on record the receipts of Nagar Palika, with regard to assessment and the rate of rent. 1, in which Kishan Lal has admitted that earlier the rent of his portion was Rs.3/- and thereafter it was changed to Rs. 4/- and thereafter, it was increased to Rs.5/-. There are also on record the receipts of Nagar Palika, with regard to assessment and the rate of rent. Both the courts after taking into consideration the entire material available on record, have rightly reached to the conclusion about the rate of rent as Rs.5/-. There lies nothing on record either to establish the amount of rent as alleged by the petitioner- respondent, or to up-set findings of fact recorded by the two courts below on the question of the rate of rent, and its default. In view of the above, the concurrent findings of facts recorded by both the courts below cannot be interfered with. Thus,the writ petition is liable to be dismissed. The writ petition is dismissed. _