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Allahabad High Court · body

2016 DIGILAW 3068 (ALL)

Kamta Prasad Agrawal v. Aprajita Dutta

2016-09-07

PANKAJ MITHAL

body2016
JUDGMENT Pankaj Mithal, J. – The plaintiff revisionist, who claims himself to be the landlord, is seeking revision of the judgment and order dated 10.02.2010 passed by the Additional District Judge, Court No.2, Varanasi dismissing S.C.C. Suit No.10 of 2004, under Section 25 of the Provincial Small Causes Court Act, 1887 (hereinafter referred to as the Act). 2. The dispute is regarding a small residential portion of two rooms on the eastern part of the first floor of house No.D-37/49 (area 3420 sq. feet) situate in Mohalla Baradev, Varanasi City. The suit of the plaintiff revisionist for rent and eviction against the defendant respondent has been dismissed by the court below on the ground that he had failed to establish the relationship of landlord and tenant. 3. In view of the above, the only point arising for consideration is whether there exist any relationship of landlord and tenant between the parties in respect of the above portion. 4. I have heard Sri Ashish Srivastava, learned counsel appearing for the plaintiff revisionist and Sri Vishnu Kumar Singh, learned counsel for the defendant respondent. 5. Learned counsel for the plaintiff revisionist has argued that the house in dispute was the property of Pashupati Nath Tiwari, Smt. Seema Devi and Lokpati Tiwari, who leased out the same to the plaintiff revisionist vide registered lease deed dated 13.04.1996 for a period of 30 years with specific permission to realise rent from the various tenants occupying different portions of the said house. 6. Thus, plaintiff revisionist has been recognised as a lessor and landlord entitle and to realise rent from the tenant including the defendant respondent. 7. One of the owners of the property Lokpati Tiwari PW2 by his examination-in-chief has proved that the defendant respondent was the tenant, who was paying rent and as such with the execution of the aforesaid lease deed, she became liable for payment of rent to the plaintiff revisionist. 8. The court below has misconstrued the above evidence in holding that the defendant respondent is not the tenant rather may have acquired rights therein of her own. 9. Sri V.K. Singh, learned counsel for the defendant respondent has defended the order of the court below by suggesting that the findings recorded in the impugned judgment and order are factual in nature which do not require any disturbance by reappraisal of the evidence under Section 25 of the Act. 9. Sri V.K. Singh, learned counsel for the defendant respondent has defended the order of the court below by suggesting that the findings recorded in the impugned judgment and order are factual in nature which do not require any disturbance by reappraisal of the evidence under Section 25 of the Act. He further submits that there is no evidence on record to prove the tenancy of the defendant respondent. 10. A bare reading of the plaint and the facts stated in the impugned judgment reveals that the plaintiff revisionist is claiming himself to be the landlord on the basis of the registered lease dated 13.04.1996 the execution of which is not disputed. 11. The aforesaid lease deed is part of the evidence and is on record as paper No.16 Ga. The execution of the said lease has not been disputed by the defendant respondent in her written statement but has contended that its executors had no right to execute it for the reason that she has perfected rights over it by adverse possession. 12. The aforesaid lease deed vide clause 4 clearly states that the plaintiff revisionist would be entitle to realise rent of the different portions from the various tenants in occupation thereof and to issue receipts to them and to take proceedings if necessary for their eviction. The aforesaid Clause of the lease deed reads as under: - "4- ;g fd 'kiFkdrkZ 'kiFkiwoZd c;ku djrk gS fd Jh egkohj izlkn frokjh ds nsgkUr ds i'pkr~ muds vo;Ld nks iq=x.k Jh dSyk'kifr frokjh o Jh i'kqifr frokjh mijksDr edku uacj Mh0 37@49 ds ekfyd gq;s vkSj dSyk'kifr frokjh o i'kqifr frokjh vo;Ldx.k dk uke E;qfuLiy cksMZ cukjl ds vlslesUV jftLV~kj esa cgSfl;r ekfyd ntZ gqvk FkkA" 13. The aforesaid lease has been proved by one of its executors Lokpati Tiwari as PW2. The said witness in his statement in unequivocal terms stated on the south portion of the first floor Nagendra Nath Singh, Advocate is a tenant in three rooms and in the northern two rooms defendant respondent continues to be a tenant and that she had been paying rent of Rs.900/- per month. There existed relationship of landlord and tenant between him and the defendant respondent. 14. There is no evidence in rebut the above statement except for some discrepancy as to the commencement of the tenancy of the defendant respondent. 15. There existed relationship of landlord and tenant between him and the defendant respondent. 14. There is no evidence in rebut the above statement except for some discrepancy as to the commencement of the tenancy of the defendant respondent. 15. The aforesaid lease deed and the statement of PW2 ex facie establishes that the relationship of landlord and tenant existed between PW2 and the defendant revisionist and the same relationship continued with the plaintiff revisionist as he was given right to realise rent from all the tenants. 16. In view of the above and in the absence of any agreement of tenancy or rent receipts, the relationship of landlord and tenant between the plaintiff revisionist and the defendant respondent stand ex facie established. 17. The court below has referred to the above lease deed and has accepted that it authorises plaintiff revisionist to realise rent from the tenants and that the said lease deed stands proved by PW2. 18. However, the court below in view of the slight discrepancy in the statement of the PW2 regarding the date of induction of the defendant respondent as tenant and that the municipal records do not record her to be a tenant, held that the relationship of landlord and tenant does not stand proved. 19. The discrepancy in the statement of PW2 appears to be that in examination-in-chief he had stated that the defendant respondent was inducted as a tenant in the year 1994 whereas in the cross-examination it was stated that the tenancy commenced in the year 1983-84. 20. The above error is stated to be on account of typing mistake and it has been contended that the stand of PW2 all through had been that the defendant revisionist was inducted as tenant in the year 1983-84. 21. As far as non-recording of the name of the defendant revisionist as tenant and occupant of one of the portions of the said house that is not very material for the reason that entries in the municipal record are only for the fiscal purposes to enable it to realise taxes in respect of the property either from the owner or from the occupant. 22. The contention that the defendant respondent has acquired rights by adverse possession is completely foreign to the issue involved in the suit. 22. The contention that the defendant respondent has acquired rights by adverse possession is completely foreign to the issue involved in the suit. The law is settled in a summary proceedings before the Small Causes Court for eviction of a lessee after determination of lease by the lessor the question of title for ownership cannot be gone into and that such a suit has to be decided only on the basis of the relationship of landlord and tenant if any existing between the parties. 23. In view of the aforesaid facts and circumstances and the evidence as referred to above, I am of the opinion that the court below has miserably failed to appreciate the evidence in the right perspective and has misconstrued and twisted it to the advantage of the defendant respondent. 24. Accordingly, the impugned order dated 10.02.2010 is set aside and the matter is remanded to the court below for decision afresh in accordance with law on the basis of the evidence on record. 25. The revision is allowed with no order as to costs. Revision allowed.