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Allahabad High Court · body

2014 DIGILAW 2556 (ALL)

Imtiyaz Hussain v. Rohullah Marufi

2014-08-21

PANKAJ MITHAL

body2014
JUDGMENT Pankaj Mithal,J. The suit of the respondents for the eviction of the petitioner from the premises in dispute was dismissed by the Small Causes Court on 8.11.2005. The said judgment and order has been set aside in revision under Section 25 of the Provincial Small Causes Court Act, 1887 by the judgment and order dated 24.8.2007 and the suit has been decreed. 2. The petitioner, aggrieved by the revisional judgment and order decreeing the suit for his eviction, has filed this petition. 3. The suit was filed by the respondents for eviction of the petitioner after determining his tenancy vide notice dated 30.9.1996 for default in payment of rent, material alteration and denial of title. The respondents alleged that the petitioner is a tenant in the premises in dispute which is a house as detailed at the foot of the plaint. 4. The petitioner contested the suit, inter alia, on one of the grounds that he is tenant of one of the rooms only and the rest of the premises in his occupation has devolved upon him by inheritance. There is no default in payment of rent of the tenanted room. There is no material alteration in respect of the room and the petitioner has not denied the title of the respondents so far as the said room is concern. 5. The court of Small Causes dismissed the suit holding that the petitioner is tenant of the room only in connection with which there is no default in payment of rent. The said tenanted room has not been altered and any alteration in the other portion would not entail his eviction. The petitioner has not denied the title of the respondents in respect of the said tenanted room. 6. The aforesaid judgment and order has been set aside and the suit has been decreed with the finding that the petitioner is tenant of the entire premises in dispute. The tenancy is not confined to one room. The petitioner is liable to eviction for denying title of the respondents. He has defaulted in payment of rent of the premises and that the alteration made by him in the part of the premises other than the room materially affects its utility and diminishes its value. 7. I have heard Sri Atul Dayal, learned counsel for the petitioner and Sri H.N.Singh, Senior Advocate assisted by Sri R.U.Khan, learned counsel for the respondents. 7. I have heard Sri Atul Dayal, learned counsel for the petitioner and Sri H.N.Singh, Senior Advocate assisted by Sri R.U.Khan, learned counsel for the respondents. 8. The argument is that the petitioner has inherited the premises in dispute, except the tenanted room from her mother Fasihun Nishan upon whom it had devolved from her forefathers, namely, Amanullah and Ehsanullah. Therefore, any construction therein or setting up of ownership in respect thereof would not amount to either material alteration or denial of title in connection with the tenanted room. The tenancy of the petitioner in respect of the room had commenced in 1946 on a rent of Rs.3/- per month which was later increased to Rs.20/- per month. There is no default in payment of rent at the above rate. 9. The aforesaid argument has been countered by asserting that the property in dispute was the exclusive property of Waqaullah which devolved upon the respondents. Smt. Fasihun Nishan, the sister of Waqaullah had no connection with it so as to inherit any part of it. It was not the property of their ancestors which could have devolved even partly upon Smt. Fasihun Nishan. The petitioner himself has admitted to be the tenant of the entire premises in dispute in an affidavit in one of the miscellaneous cases and in the municipal record as produced by him he has simply been shown as a tenant and not owner of any part of it. 10. The moot question which surfaces for adjudication is whether petitioner is tenant of only one room comprising the premises or of the entire premises. 11. The parties to the suit are related. The grand-father of the respondent, Waqaullah and the mother of the petitioner Smt. Fasihun Nishan were brother and sister. 12. The petitioner accepts himself to be a tenant of one room since 1946 which belongs to the respondents. He took this room on rent as the portion in which he was leaving was not sufficient for his family. He contends that he occupies one room as a tenant and rest portion as the owner. 13. There is no evidence on record to establish that the premises in dispute was originally the property of the ancestors of Waqaullah and Smt. Fasihun Nishan. He contends that he occupies one room as a tenant and rest portion as the owner. 13. There is no evidence on record to establish that the premises in dispute was originally the property of the ancestors of Waqaullah and Smt. Fasihun Nishan. In the absence of evidence to the above effect, no part of the premises in dispute can devolve upon or inherited by Smt. Fasihun Nishan which may entitle the petitioner to claim any ownership on it. It is not the case of the petitioner that any portion of the property in dispute has been settled in favour of her mother Smt. Fasihun Nishan. 14. The assessment of the municipality (paper no.52 Ga) which was produced by the petitioner himself proves that the premises in dispute was recorded in the name of Waqaullah alone. The entries in the revenue records prima facie prove that Waqaullah was the exclusive owner. The defence witnesses accepted that the property of Asfaqullah who is brother of Waqaullah is distinct and separate. It means that the aforesaid two brothers had separate properties. There is no evidence on record to prove that the property recorded in the name of Waqaullah had devolved upon him from his ancestors or that it was originally the property of his ancestors. Thus, no right or title in any part of it can be acquired by Smt. Fasihun Nishan, the sister of Waqaullah. 15. In view of the above, the revisional court rightly held that the petitioner has no semblance of title in respect of any part of the premises in dispute. 16. The petitioner admits the affidavit (paper no.28-Ga) which was said to have been filed in P.A. Case No.73 of 1983. The execution of the said affidavit is admitted to the petitioner and that he had signed it after reading the same. The petitioner by the said affidavit admits that he is living as a tenant in the portion shown in the map by yellow colour. The map said to be attached describes in the yellow colour the entire premises in dispute. The one room portion alone is not shown in yellow colour in the said map which means that the petitioner accepts himself to be the tenant of the entire premises. 17. The map said to be attached describes in the yellow colour the entire premises in dispute. The one room portion alone is not shown in yellow colour in the said map which means that the petitioner accepts himself to be the tenant of the entire premises. 17. The contention that the map attached to the said affidavit does not bear the signatures of the petitioner or the suggestion that the said map has been changed is too remote a story to be accepted. The reason being that the affidavit clearly states that the petitioner is tenant of the portion shown in yellow colour in the attached map which means that the petitioner was concious of the fact that the affidavit has an attachment in the form of a map. The execution and signature on the affidavit is accepted to him and, therefore, consequentially the map which forms part of it is also admissible to him as there is no material to show that the map has been replaced or that the affidavit at the time of its execution had no map or a different map attached to it. 18. The aforesaid admission is a clinching proof of the fact that the petitioner is tenant of the entire premises in dispute and not only of one room portion. 19. The revisional court apart from the above, has also drawn inference that the petitioner is tenant of the entire premises in dispute and is not owner of any part of it from the admitted fact that no part of the property had devolved upon any other sister of Waqaullah and as such there appears to be no reason for devolvement of any part of it upon Smt. Fasihun Nishan. 20. The revisional court also held that the rent of Rs.3/- per month in the year 1946 could not have been of only one room but for the entire premises in dispute as Rs.3/- per month as in those days the said amount would have been too much for a single room. 21. The inference drawn by the revisional court and the findings recorded thereof are based upon evidence on record and the findings being those of fact are apparently beyond the scope of judicial review in exercise of extra ordinary jurisdiction. 22. 21. The inference drawn by the revisional court and the findings recorded thereof are based upon evidence on record and the findings being those of fact are apparently beyond the scope of judicial review in exercise of extra ordinary jurisdiction. 22. The revisional court has not committed any illegality in returning the above findings as it has found that the court below was perverse in holding that the petitioner was tenant of only one room. Findings of the court below were based upon misreading of the evidence on record. In Shyam Lal Vs. Rasool Ahmad 2002 (5) AWC 4250 (SC) it has been observed that the revisional court under Section 25 of the Act if assigns convincing reasons for arriving at a finding different from the one recorded by the court below than no exception to it can be taken in law. Thus, the reversal of finding on the above aspect by the revisional court for the reasons recorded by it does not suffer from any error or law. 23. Once it is accepted that the petitioner was the tenant of the entire premises in dispute, the eviction is inevitable as constructions amounting to material alteration have been raised by the petitioner in the premises in dispute and that he has denied the title/ownership of the respondents in respect of the portion other than one room referred to above. 24. Thus, when the tenancy was validly determined as found by the court below, the petitioner is liable for eviction on the ground of material alteration and denial of title, leaving aside the ground of default in payment of rent. 25. In view of the above, there is no merit in the petition and the same stands dismissed with no orders as to costs.