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2012 DIGILAW 96 (ALL)

Sardar Jagjit Singh v. Addl. District Judge, Court No. 12, Lucknow and others

2012-01-10

SHABIHUL HASNAIN

body2012
Shabihul Hasnain, J.;- By means of this writ petition, the petitioner-defendant of S.C.C. Suit no. 176 of 1996, challenges the judgment and order dated 20.9.2007 passed by Judge Small Causes Courts Act, Lucknow decreeing the S.C.C. suit filed by the defendant no. 3- plaintiff against the petitioner- defendant as well as the order dated 19.8.2009 passed by Addl. District Judge, Lucknow dismissing the revision filed by the petitioner. The facts of the case in brief are that the respondent No.3- plaintiff Km. Priti Kaur, claiming herself to be owner-cum-landlady of building known as 'Chuhar Sing Building' No.279/54/24, situate in Mohalla Pandariba, Police Station-Naka Hindola, City Lucknow having purchased the same from Smt. Yuwan Priti Dhillon, widow of the late Major Harpreet Singh Dhillon by a Registered Sale deed dated September 10, 1991, filed the S.C.C. suit for eviction, arrears of rent and damages against the defendant/petitioner-Sardar Jagjit Singh before Judge Small Causes, Lucknow and thus the ownership thereof, has been transferred in favour of the plaintiff in exchange for a price of Rs.1,50,000/- paid by a Registered instrument of Sale dated 10.9.1991 as said above and the petitioner- defendant became the tenant of the plaintiff on a monthly rent of Rs.132.50, in respect of the tenant on the ground floor portion of the aforesaid building, which was being paid by the petitioner- defendant to the previous landlord till transfer of the aforesaid building, which is governed by the provisions of the U.P. Urban Building Act, 1972. It has been averred that the petitioner- defendant is living on the ground floor portion of the aforesaid building. The premises in occupation of the petitioner- defendant consists of five living rooms, two kotharis, two covered verandahs, one garage (at the back), one court-yard, one kitchen, flush latrine and one bath-room. It has further been said that on 10.9.199, the date of purchase of the property, defendant no.3- plaintiff herself duly informed the petitioner- defendant the factum of the purchase of the aforesaid building by her and, thereafter, continued to request the petitioner- defendant to pay rent to her. The previous owner-cum-landlord also gave an intimation to the petitioner- defendant to the effect that the aforesaid building had been transferred by sale, by them, to the defendant no.3- plaintiff, on 10.9.1991 and the petitioner- defendant was required to pay subsequent rent of the property leased to the defendant- plaintiff. The previous owner-cum-landlord also gave an intimation to the petitioner- defendant to the effect that the aforesaid building had been transferred by sale, by them, to the defendant no.3- plaintiff, on 10.9.1991 and the petitioner- defendant was required to pay subsequent rent of the property leased to the defendant- plaintiff. On 12.10.1995 the plaintiff, through her counsel, sent to the defendant, an intimation in writing, by registered post, acknowledgment due, intimating to him about the transfer of ownership of the aforesaid building in her favour and requesting him to pay to the plaintiff', the entire rent in arrear, amounting to Rs.6,492.50 at the rate of Rs.132.50 per month, for the period 10.9.1991 to 9.10.1995. The said notice of intimation was duly served upon the defendant on 17.10.1995, but the petitioner failed to pay the rent. The arrears of rent amounting to Rs.6,890.00 were outstanding against the defendant since 10.9.1991 (the date of purchase of the aforesaid building by the plaintiff from the previous owners-cum-landlords) up to 9.1.1996 and the plaintiff demanded from the defendant a sum of Rs.6,890.00, being the rent in arrears, to her, but he again failed to pay the rent to the plaintiff. The plaintiff, through her counsel, served upon the defendant, a registered post, acknowledgment due notice dated January 24/27, 1996 thereby demanding from the defendant a sum of Rs.6,890/- towards the arrears of rent, for the period, 10.9.1991 to 9.1.1996, due from the defendant within one month of the date of service upon him of the said notice of demand. The said notice of demand was duly served upon the defendant on 31.01.1996, but the defendant failed to pay the said arrears of rent to the plaintiff within one month from the date of service upon him of the said notice of demand. The plaintiff, through her counsel, thereafter, served upon the defendant a registered post, acknowledgment due, notice dated April 18, 1996 terminating the tenancy of the defendant and calling upon him to vacate and deliver up the vacant and peaceable possession of the ground floor portion of the aforesaid building under his tenancy and possession to the plaintiff on the expiration of thirty days next after the said notice in writing has been delivered to him. The said notice was duly served upon the defendant on 19.04.1996, but to no effect. The tenancy of the defendant stood determined on 19.05.1996. The said notice was duly served upon the defendant on 19.04.1996, but to no effect. The tenancy of the defendant stood determined on 19.05.1996. It has been averred that the defendant neither paid to the plaintiff the arrears of rent nor did he vacate the premises in his occupation, hence this suit for his eviction, etc. from the premises in suit. The defendant has contested the suit on the ground that the alleged notices were issued to the defendant in spite of the facts that the plaintiff was made aware of the facts by him that he is not a tenant of the suit premises. He asserted that the claim of the defendant-3- plaintiff is fraudulent and misleading as alleged by her; no cause of action arose to the plaintiff to file the suit as she never exhibited her title to the suit property in any Court of law or had not established her rights in any Court as she knew her purchase was fraudulent. The defendant has taken a plea that the property in suit belonged to Smt. Harbansh Kaur wife of Late Col. M.S. Dhillon, resident of Chauhar Singh Building, Pandariba, Lucknow, and the mother of the defendant Smt. Gyan Kaur was the tenant thereof. Smt. Harbans Kaur never treated any one as tenant since she was intending to sell the property. Km. Swaran Kaur the sister of the petitioner- defendant offered to purchase the property in suit and had advanced a sum of Rs.10,000/- which was duly accepted by said Smt. Harbans Kaur for which a receipt No.MSD=1404/7th October, 1985 was executed by her grand son Vikram Dhillon, but for reason not known to the petitioner- defendant the sale was not completed thereafter. Smt. Harbans Kaur was in need of money, so she called for the balance consideration of the sale money from Km. Swaran Kaur, who paid the money on the assurance given by the owner as evident from the certificate given by the said owner on 15.11.1990 which indicate that Km. Swaran Kaur be deemed to be in possession of Ground Floor w.e.f. 7th October, 1985 in her own rights and her possession shall stand protected without any interference from any of her legal representatives and assignee. Smt. Harbans Kaur died without completing the sale-deed in favour of Km. Swaran Kaur and nobody claimed any right in the property and so Km. Smt. Harbans Kaur died without completing the sale-deed in favour of Km. Swaran Kaur and nobody claimed any right in the property and so Km. Swaran Kaur was holding the suit premises in her own rights under the documents executed by Smt. Harbans Kaur in her life time without any interference from any quarter; Km. Swaran Kaur, the sister of the defendant died on 8.7.1995, and the defendant had been in possession under the rights held by his said sister and after her death he enjoys independent rights and not as tenant of any body, however, the plaintiff' got the notice of demand issued on 12.10.1995 and served on the defendant, then he came to know that the defendant is being claimed as tenant of the suit property by plaintiff, so the defendant informed her that he is not a tenant and if she proceeds or persists in her demand or files any suit, it shall be defended at her costs. Since the defendant is a law abiding citizen and a retired Government Servant do not want to involve himself in litigation on account of his inability having a fractured leg and awaited to see the assertion of the right of the plaintiff in Court of law. It has been averred that the plaintiff also did not get any right under the alleged sale obtained fraudulently by her without her vendors establishing their rights in Court of law and it is absolutely a false statement that the previous owner cum landlords gave any intimation to the defendant about the sale to the plaintiff's. The suit filed by her is only an abuse of the process of law to get her title established, therefore, the suit filed by the plaintiff is fraudulent in nature and had been filed with malafide intention and without establishing their title in a Court of law and is liable to be dismissed with costs, especially when the defendant is holding not any right under the vendor of the plaintiff and he has been wrongly impleaded in this case as tenant; there exist no relationship of landlord and tenant on face of record, therefore, this Court has no jurisdiction to entertain the suit against the defendant. The following questions of law were framed by the lower court: 1.Whether the plaintiff is the owner/landlord of the property in question and whether the defendant is the tenant of the property in question ?. 2.Whether the suit is barred by Section-23 of P.S.C.C. Act? 3.Whether the defendant is entitled to the benefit of Section 53-A of T.P.Act ? 4.Whether the defendant is defaulter of payment of rent ? 5.Whether the notice under Section 106 T.P.Act and notice of the transfer of property were effected on defendant, if yes, then its effect ? The trial court, after appraising the oral and documentary evidence on record, adduced by both the parties, recorded an absolutely correct finding that that defendant no.3- plaintiff is the owner and landlord of the disputed property and hence it was held that the suit of the plaintiff is not barred by the provision of Section 23 of the P.S.C.C and therefore, the defendant is not liable to get the benefit of Section 53 of the T.P. Act. The trial court after scrutinizing the claim of the plaintiff as well as of the defendant, held the defendant, defaulter in paying the rent to the plaintiff as it was also found correct that the notice under Section 106 of the T.P. Act, regarding alienation of property was served upon the defendant and thus, the tenancy of the defendant stood terminated and the plaintiff is liable to be evicted, to pay arrears of rent and damages to the plaintiff and thus, decreed the suit. The revision filed by the petitioner was also dismissed by the Court below affirming the findings recorded by the trial court on all the courts. I have heard the learned counsel for the parties and have gone through the findings recorded by the courts below. To me, the concurrent findings of facts recorded by the two courts, cannot be disturbed in ordinary course of nature unless and until, the error apparent on the face of record is made out. Both the Courts below have gone into detail while appraising the oral and documentary evidence of both the parties and have rightly relied upon the evidence of the P.W. 1 and 2 adduced by the plaintiff in his defence. Both the Courts below have gone into detail while appraising the oral and documentary evidence of both the parties and have rightly relied upon the evidence of the P.W. 1 and 2 adduced by the plaintiff in his defence. They have supported the case of the plaintiff regarding purchase of property by the plaintiff from its owner Sarvajeet Singh and production of the copy of sale deed before the Court below, earlier to their cross-examination in the suit, therefore, it was rightly held the cross-examination of both these witnesses were done after the copy of the sale deed was brought on record and the objection raised by the defendant with regard to title of the suit property and purchase of the same by Km. Swaran Kaur, on the basis of the testimony of the witnesses adduced by the plaintiff, rightly did not find favour to the Courts below and has thus, rightly held the plaintiff to be the owner of the property in suit on the basis of the sale deed as alleged by the plaintiff and since the owner ship of the suit property is established by the two Courts, there appears to be nothing on record to establish to the contrary, and thus the subsequent pleas taken by the plaintiff also stand proved and all the issues framed by the trial court has rightly been decided as has also been accepted by the revisional Court. The findings of facts recorded, after analyzing the entire evidence on record, by both the courts below cannot be disturbed in the facts and circumstances of the present case. Consequently, the writ petition challenging the orders passed by the courts below, has no force and is liable to be dismissed. The writ petition is dismissed.