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2012 DIGILAW 92 (ALL)

AKILA v. NISAR AHAMAD

2012-01-10

ARUN TANDON

body2012
Hon'ble Arun Tandon,J.:- Small Causes Suit No. 14 of 1982 was filed by the plaintiff-respondent under Section 6 of the Specific Relief Act for his possession being restored over the property in question. The suit was contested by the present petitioner. It was admitted to the parties that the disputed property was owned by one Sri Abdul Rashid, the father of the present petitioner and further that Abdul Rashid had since shifted to Pakistan. According to the petitioner she was tenant of the premises and illegally dispossessed, therefore the suit. The defendant in turn claimed title over the property on the basis of the gift executed by her father. The Judge Small Causes framed 7 issues for determination including issue no. 6; as to whether the plaintiff was the tenant of the premises or not. After evidence was led by the parties, the trial court answered the issue, with regard the plaintiff being tenant of the premises as he had established his possession and his being illegally dispossessed, in favour of the plaintiff. The trial court further held that the defendant has failed to establish the gift deed. Accordingly, the suit was decreed vide order dated 22.08.1983. The plaintiff filed the revision under Section 25 of the Small Causes Court's Act, 1987. The revision has also been dismissed under order dated 08.04.1987. The findings recorded by the court below have been found to be based on appreciation of evidence, which need not be upset in revisional proceedings under Section 25 of the Small Causes Court's Act. Challenging the order so passed counsel for the petitioner submitted that the Supreme Court of India in the case of Mahabir Prasad Jain vs. Ganga Singh, reported in 1999( 37) ALR 742 has laid down that the possession of a servant or an agent will not in itself give a presumption of tenancy and that the possession of a servant/agent is on behalf of the master and therefore a suit on behalf of agent/servant under Section 6 of the Specific Relief Act would not be maintainable. It is contended that in the facts of the case despite a specific issue being framed by the trial court qua the plaintiff being a tenant of the premises at the rate of Rs. 5/- per month, no conclusive finding has been recorded on the said issue, although issue no. It is contended that in the facts of the case despite a specific issue being framed by the trial court qua the plaintiff being a tenant of the premises at the rate of Rs. 5/- per month, no conclusive finding has been recorded on the said issue, although issue no. 6 has been answered in favour of the plaintiff. He, therefore, submits that the orders impugned are illegal. According to the counsel for the petitioner before the revisional court it had specifically been contended that the plaintiff was not the tenant and therefore mere possession would not entitle him to a decree under Section 6 of the Specific Relief Act. The revisional court, even noticing the said plea, only on the basis of possession his dismissed the appeal and maintained the decree without recording any conclusive opinion as to whether the plaintiff was tenant of the premises or not. It is submitted that the revisional court has misdirected itself in recording a finding with regard to the right of the plaintiff to claim possession of the new house, which has been constructed in place of old house, without adverting to basic issue as to whether the plaintiff has been able to establish that he was tenant of the premises in question and therefore entitled to maintain the suit under Section 6. I have heard learned counsel for the parties and have examined the records. The Supreme Court of India in the case of Mahabir Prasad Jain ( supra) has specifically held that mere exclusive possession itself will not give any presumption of tenancy and further that a suit by an agent or by the servant under Section 6 against the master would not be maintainable. What logically follows is that a categorical finding had to be arrived at by the courts below as to whether in the facts of the case the plaintiff had been able to establish that he was the tenant of the premises in question. Mere possession will not lead to a presumption of tenancy. The revisional court has misdirected itself in coming to a conclusion that merely because the plaintiff has been able to establish his exclusive possession, he is deemed to be the tenant of the premises. Mere possession will not lead to a presumption of tenancy. The revisional court has misdirected itself in coming to a conclusion that merely because the plaintiff has been able to establish his exclusive possession, he is deemed to be the tenant of the premises. In view of the law laid down by the Supreme Court in the case of Mahabir Prasad Jain ( supra), the order passed by the revisional authority cannot be legally sustained. The revisional court is duty bound to examine as to whether in the facts of the case the plaintiff has been able to establish that he was the tenant of the premises in question or not. Since said aspect of the matter has completely been ignored by the revisional authority, the order passed by the revisional court dated 08.04.1987 is hereby set aside. Revision no. 122 of 1983 is restored to its original number. Let the same be decided after affording opportunity of hearing to the parties concerned by means of a reasoned order, preferably within six months from the date a certified copy of this order is filed before the revisional court, specifically in light of the judgment of the Supreme Court in the case of Mahabir Prasad Jain ( supra). Revision is allowed subject to the observations made.