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2012 DIGILAW 931 (ALL)

Babu Lal v. Mohammad Anis

2012-04-18

SHASHI KANT GUPTA

body2012
Shashi Kant Gupta, J.— 1. This writ petition is directed against the judgement and order dated 06.02.2012 passed by the Additional District Judge, Court No. 10, Kanpur Nagar in S.C.C. Revision No. 102 of 2010 upholding the order dated 22.10.2010 passed by Judge Small Causes Court in S.C.C. Suit No. 189 of 2007, whereby the suit of the plaintiff for arrears of rent and ejectment filed on the ground of default in payment of rent and denial of title of the landlord was decreed. Brief facts of the case are as follows:- 2. The suit property was purchased by the plaintiff/respondent vide sale deed dated 19.05.2007 from one Smt. Naseema Begam. The plaintiff/respondent issued a notice under Section 106 of T.P. Act to the petitioner/tenant demanding the arrears of rent and terminating the tenancy of the petitioner. The notice was followed by a S.C.C. Suit No. 189 of 2007 for arrears of rent and ejectment. It was stated in the plaint that the property in dispute was purchased by the plaintiff on 19.05.2007 and despite notice of demand issued by the plaintiff to the petitioner, rent was not paid by the petitioner. The petitioner filed its written statement denying and disputing the allegation made by the plaintiff/respondent in the plaint and further denied the existence of the landlord-tenant relationship between the parties. 3. The Trial Court after considering the material available on record decreed the suit in favour of the landlord. Feeling aggrieved and dissatisfied with the judgement and order passed by the Trial Court, the petitioner filed a S.C.C. Revision, which was dismissed by order dated 06.02.2012. Hence the present writ petition. 4. Learned counsel for the petitioner has vehemently submitted that the finding recorded by the Court below is illegal, arbitrary and based on complete misreading of the case and misconception of legal possession and has not considered the evidence on record in right prospective. It was further submitted that the respondent was not the owner of the disputed premises, in fact the property in dispute was owned by one Mohammad Siddiq, who created a Wakf of the disputed property. 5. It was further submitted that the respondent was not the owner of the disputed premises, in fact the property in dispute was owned by one Mohammad Siddiq, who created a Wakf of the disputed property. 5. Per contra, learned counsel for the plaintiff/respondent has supported the impugned order passed by the Court below and submitted that the petitioner has neither in his pleadings nor in his oral testimony has stated that the disputed property was a Wakf property and it was only during the course of the argument before the Trial Court, it was for the first time stated by the petitioner that the disputed property was a Wakf property. 6. Heard Senior Counsel for the petitioner Sri M.A. Qadeer, Sri Anil Kumar Srivastava, learned counsel for the respondent and perused the record. 7. The respondent claimed himself to be the owner/landlord of the disputed premises on the basis of the registered sale deed dated 19.05.2007 executed by Smt. Naseema Begum. The said sale deed has not been challenged by any one. The quinquennial assessment of the Nagar Mahapalika for the year 1978-87 shows the name of the petitioner Babu Lal as a tenant in the disputed property. It was also notable that the registered Gift deed was executed by the erstwhile owner Mohammad Siddiq in favour of his son Mohammad Ibrahim on 19.09.1968. A bare perusal of the written statement of the petitioner would show that it was mainly pleaded by the petitioner that the property in dispute was a Nazul property, over which the superstructure was built by him. The petitioner failed to prove that the property in dispute was either a Nazul property or the superstructure was built by him. Therefore, in the circumstances, the Court below was fully justified in discarding the contention of the petitioner that the property in dispute was a Nazul property and he was the owner of the superstructure over it. Learned counsel for the petitioner submitted that the disputed property was a Wakf property, as such, the Act No. XIII of 1972 is not applicable in the matter. The question now sought to be raised was neither pleaded by the petitioner in its written statement nor proved by oral testimony nor adduced any cogent and convincing evidence in this regard. Therefore, his contention deserves to be rejected out rightly. 8. The question now sought to be raised was neither pleaded by the petitioner in its written statement nor proved by oral testimony nor adduced any cogent and convincing evidence in this regard. Therefore, his contention deserves to be rejected out rightly. 8. Both the Courts below have recorded a finding of fact holding that the petitioner has committed default in payment of rent and also denied the title of the plaintiff/respondent, who had purchased the property from Smt. Naseema Begum. The said finding arrived at by the Courts below is based on record. 9. Both the courts below have given cogent, convincing and satisfactory reason while passing the order in favour of the landlord. The finding recorded by the courts below are neither perverse nor based on any extraneous or irrelevant material. This court under Article 226 of the Constitution of India can not substitute its own opinion for the opinion of the courts below. Unless it is found that the conclusion drawn by the lower court is erroneous being contrary to the mandatory provisions of law or based on inadmissible evidence or arrived at findings without evidence. 10. I do not find any illegality or infirmity in the impugned orders. In the result this petition is accordingly dismissed. 11. After the judgment was dictated, learned counsel for the petitioner urged that at least six months time may be granted to him for vacating the premises in question. The learned counsel for the landlord did not raise any objection to it. 12. As urged by the learned counsel for the petitioner, six months' time is granted to the petitioner to vacate the premises in dispute provided the petitioner 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 landlord without inducting any third person within a period of six months from today and will deposit the entire decretal amount including the damages within one month from today and further continue to deposit a sum of Rs.500/- per month as damages for use and occupation of the disputed premises before the Trial Court for immediate payment to the landlord up to the date of delivery of the vacant possession of the disputed premises as indicated herein above. 13. 13. In the event of default of any of the aforesaid conditions, the landlord will be at liberty to proceed to evict the petitioner, if necessary by coercive process with the aid of police force. _