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2015 DIGILAW 2720 (ALL)

Ram Khilauni v. Vimal Kumar

2015-09-02

SUNITA AGARWAL

body2015
JUDGMENT Mrs. Sunita Agarwal, J. Heard Shri Swapnil Kumar, learned counsel for the petitioner and Shri H.M. Srivastava, learned counsel for the respondent. 2. The instant revision arises out of SCC Suit No. 01 of 2004 for eviction on the ground of default in payment of rent. Damages for use and occupation of the building in question was also sought. The plaint case is that the defendant was tenant of the premises in question at the monthly rent of Rs. 1000/- per month and had defaulted in payment of rent since 01.07.1994. The notice dated 08.12.2003 was served upon him. Even after expiry of 30 days of the period provided in the notice, the rent was not tendered, hence, the cause of action for filing the suit arose. 3. In the written statement, the petitioner/defendant had categorically denied the existence of relationship of landlord and tenant. He submitted that he had entered into possession of the premises in question on the basis of an agreement for sale executed on 22.02.1989. It is further stated that the original suit no. 402 of 1992 for specific performance of agreement dated 22.02.1989 was pending consideration before the Civil Court. The defendant had never paid rent to the plaintiff and assertion in the plaint regarding default in payment of rent were false. 4. The plaintiff and defendant had entered into the witness box and were examined as PW-1 and DW-1. Two other witnesses were examined to support the case of the plaintiff. So far as the documentary evidence is concerned, it is recorded by the Court below that by list 26 C, the agreement for sale, the application and order passed in Misc. Case No. 137 of 1989 etc. were filed by the defendant. 5. On issue no. 1 and 2, relevant for deciding the landlord tenant relationship, the Court below has recorded that the statement of defendant was at variance regarding the date of occupation of the disputed property. It was further recorded that the possession cannot be said to have been delivered pursuant to the agreement for sale for the reason that there was no averment in the agreement itself regarding delivery of possession. The contention of the plaintiff that the defendant was tenant of the premises in question was accepted. 6. It was further recorded that the possession cannot be said to have been delivered pursuant to the agreement for sale for the reason that there was no averment in the agreement itself regarding delivery of possession. The contention of the plaintiff that the defendant was tenant of the premises in question was accepted. 6. So far as the pending suit for specific performance is concerned, it was held that it has no relevance for the present proceedings. The defendant cannot claim ownership on the basis of pendency of suit for specific performance. It was further recorded by the trial Court while deciding issue no. 1 and 2 that there was no rent deed which can prove the fact of tenancy. 7. The assertion of the plaintiff is that the defendant were in possession of the disputed premises prior to the execution of the agreement and had stopped paying rent after the agreement has been arrived. They did not even paid the sale consideration and as such the sale deed was not executed. 8. After consideration of oral evidences of the parties and the agreement for sale, it was concluded that the plaintiff had proved the relationship of landlord and tenant and hence issue no. 1 and 2 was decided in favour of the plaintiff. Issue no. 4, 5 and 7 were also decided accordingly against the defendant. 9. Challenging the findings recorded by the trial court, the specific contention of the learned counsel for the revisionist is that the documents pertaining to original suit No. 402 of 1989, which were filed before the Court below to prove the assertion of the defendant that there was no relationship of landlord and tenant have conveniently been ignored by the Court below. There is no reference of the documents namely paper no. 16Ga, 17Ga, 18GA, 19Ga, 20Ga and 21Ga in the judgment of the trial Court which were filed by the defendant. Out of these documents, paper no. 17Ga is the written statement in the suit for specific performance. The suit for specific performance was filed in the year 1992 and the written statement paper no. 17Ga was filed in the year 1995. While denying the agreement dated 22.02.1989 being agreement for sale, it was stated by the plaintiff that it was the mortgage deed and the possession had been taken by the defendant on the basis of that deed. 17Ga was filed in the year 1995. While denying the agreement dated 22.02.1989 being agreement for sale, it was stated by the plaintiff that it was the mortgage deed and the possession had been taken by the defendant on the basis of that deed. The contention is that the documentary evidences to prove that there was no relationship of landlord and tenant filed by the defendant pertain to a proceeding between the same parties relating to the same property referring to the same deed could not have been ignored by the Court below. 10. The submission of Shri H.M. Srivastava, learned counsel for respondent is that the relevant document to prove the fact of possession was agreement for sale wherein there was no averment of the delivery of possession. In absence of any such averment, it cannot be accepted that the possession has been delivered on the basis of said agreement. The plaintiff had proved by producing himself in the witness box and also by statement of PW-2 that the shop was given on rent to the defendant. 11. Heard learned counsel for the parties and perused the record. There is no dispute about the fact that the documents namely paper no. 16Ga, 17Ga, 18GA, 19Ga, 20Ga and 21Ga were filed before the Court below. There is no reference of these document in the order passed by the Court below while referring to the oral and documentary evidences filed by the parties, at internal page 4 of the judgment. These document could not have been ignored by the Court below as they touch the root of the controversy between the parties. The pleadings in a civil proceeding between the same parties with regard to the same property and the deed in question could not have been ignored. In this view of the matter, without entering into the merits of matter regarding interpretation of documents filed by the plaintiff, the matter is remitted back to the Court below to consider the documentary evidences and record a fresh finding on the issue of relationship of landlord and tenant. The order dated 12.1.2010 passed JSCC/Additional District Judge, Kasganj, District Kashi Ram Nagar is hereby set aside. 12. The revision is allowed.