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2017 DIGILAW 2701 (ALL)

Bano v. Ashad Ulla Khan (Since Died)

2017-11-22

VIVEK KUMAR BIRLA

body2017
JUDGMENT : Vivek Kumar Birla, J. No one is present on behalf of the petitioner even in the revised call of supplementary fresh cases. Thrice on the request of learned counsel for the petitioner, the matter was deferred but today he is not present. 2. The present petition has been filed challenging the order dated 27.4.2015 passed by the Court of Additional Judge Small Causes Court No. 2, Kanpur Nagar in SCC Suit No. 267 of 2011 (Ashad Ullah Khan v. Smt. Bano) as well as impugned order dated 26.7.2017 passed by Additional District Judge, Court No. 15, Kanpur Nagar in Small Causes Revision No. 63 of 2015 (Smt. Bano v. Ashad Ullah Khan). 3. Facts of the case, in brief, are that a SCC suit was filed by one Ashad Ullah Khan (now dead) against the tenant (petitioner herein) for rent and eviction on the ground that the house no. 95/91 Ameenganj, Talaqmahal, Kanpur Nagar was purchased by him from earlier owner vide registered sale dated 25.3.2010 and the defendant is tenant of one quarter no. 97, which has been constructed over 35.95 sq. meter, which is a khapral shed, at the rate of Rs. 100/- per month. It was alleged that the defendant has not paid rent since 21.12.1985 to its earlier landlord also and after the house has been purchased by the plaintiff, she is not paying any rent. A notice dated 28.9.2010 was sent to the defendant but she refused to accept the same and despite of the notice no rent was paid and therefore, the suit for rent and eviction was filed claiming rent from 14.11.2008 to 28.10.2011 and the balance rent being time barred and as such, the same was not claimed. A notice dated 28.9.2010 was sent to the defendant but she refused to accept the same and despite of the notice no rent was paid and therefore, the suit for rent and eviction was filed claiming rent from 14.11.2008 to 28.10.2011 and the balance rent being time barred and as such, the same was not claimed. The suit was contested by the defendant by filing a written statement claiming that initially the owner of the property in question was one Hind Estate and at present Kanpur Development Authority (KDA) is the owner and the purchase of the property by the present landlord was also disputed on the ground that as after 1981-82 the Hind Estate has been declared as a 'Malin Basti' and therefore, no property can be purchased or sold in this basti and therefore, the sale deed executed in favour of the plaintiff is illegal and has no legal force and therefore, the present landlord cannot claim himself to be the landlord of the property in question and as such, suit itself is not maintainable and therefore, no relief for her eviction can be granted. 4. It was claimed that earlier also the rent was paid to the landlord and earlier owner was paid rent in cash upto 2010 and that since several landlords have changed, therefore, she is going to undertake proceedings under Section 30(2) of the UP Act 13 of 1972 and as such, she is not a defaulter and suit is liable to be dismissed. The plaintiff in support of his case filed copy of registered notice, tax assessment order, original sale deed and the plaintiff appeared as PW 1. In documentary evidence, the defendant filed photocopy of identity card, ration card, letter issued by the KDA, a gazette issued by the Government and several other letters and as defendant DW 1 affidavit of Smt. Bano she however, never came forward for cross examination. 5. Six issues were framed by the trial Court. Regarding issue no. 1 as to whether there exists landlord and tenant relationship, the same was found to be established and it was found that the defendant has not produced any evidence to indicate that the KDA is the owner of the property or that it has been declared as 'malin basti'. The photostat copies filed by the defendant were rejected as they were not admissible in evidence. The photostat copies filed by the defendant were rejected as they were not admissible in evidence. It was found that on the basis of the registered sale deed executed in favour of the landlord, owner on the house was registered by the Nagar Ayukt in municipal record and therefore, it was found that there is relationship of tenant and landlord between the parties. On the issue of notice, it was found that the notice was a valid notice as the same has returned with the endorsement of refusal. On issue no. 3 regarding rate of rent, the defendant never came forward for cross-examination and never filed any documentary evidence in support of her argument that the rate of rent is Rs. 7.25 paise per month and therefore, it was held that rate of rent is Rs. 100/- per month. On issue no. 4 regarding arrears of rent, it was found that since the defendant has not produced any documentary evidence to prove that any payment has been made by her and the payment allegedly made by her in cash was not proved, therefore, it was found that there was a default in making payment of rent to the tune of Rs. 3,450/- from 14.11.2008 to 28.10.2011. The issue regarding default was also decided in favour of the landlord. Under such circumstances as noted above, the relief for rent and eviction was granted to the landlord. 6. The revision filed by the defendant was also rejected and the assertions made by the defendant were discussed in detail and it was found that there is no illegality in the findings recorded by the trial Court. 7. Earlier when this matter was argued by the learned counsel for the petitioner, his submission was that since the entire area where the property in question exists was declared as 'Malin Basti', the sale deed dated 25.3.2010 could not have been executed in favour of the present landlord and therefore, he cannot claim himself to be landlord and the KDA continues to be landlord of the property in question and hence the suit itself was not maintainable. It was pointed out that some co-tenants have moved an application before the concerned authority for seeking permission to repair the house, which was granted by the Secretary and as per the information received under Right to Information Act, the house in question is under notification of slum area. It was pointed out that some co-tenants have moved an application before the concerned authority for seeking permission to repair the house, which was granted by the Secretary and as per the information received under Right to Information Act, the house in question is under notification of slum area. Submission, therefor, is that the impugned orders are not sustainable in the eye of law. 8. I have considered the submissions made earlier and the grounds taken in the petition and perused the record. 9. It is not in dispute that the defendant filed only photo state copies of the documents, which are not admissible in evidence and further, she never came forward for cross-examination. In revision one affidavit was filed by the landlord at page 85 of the paper book, which clearly indicates that for the same house no. 95/91 the Court below has held that the aforesaid house was never acquired as 'Malin Basti'. In writ petition no. 9515 of 1982, the order of 'Malin Basti' was set aside by the Court and the copies of the judgments were placed before the revisional Court. 10. A perusal of page 108 of the paper book, which is information issued under the Right to Information Act, indicates that acquisition is only of the land and the owner of the house continues to be remain owner of the house and facts of unauthorized sale of land only has been taken into consideration. As such, the landlord continues to be the owner of the construction, which is purchased by him through a sale deed, which is duly registered and have also been registered in the revenue record. The plaintiff was the landlord of the house, which was let out to the petitioner herein. Insofar as the default part is concerned, nothing contrary to the assertions made by the landlord came forward from the tenant and therefore, findings on default requires no interference. 11. All such findings have been appreciated on the basis of documentary and oral evidence on record and therefore, I do not find any legal infirmity in the orders impugned herein. 12. A reference may be made in this regard to the Constitutional Bench judgment of the Hon'ble Apex Court in the case of Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh (2014) 9 SCC 78 according to which no interference is warranted in such findings of fact. 12. A reference may be made in this regard to the Constitutional Bench judgment of the Hon'ble Apex Court in the case of Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh (2014) 9 SCC 78 according to which no interference is warranted in such findings of fact. It is also settled law that jurisdiction under Article 227 of the Constitution of India is akin to revisional jurisdiction and the scope of interference in the findings of fact is also very limited. 13. In such view of the matter, I do not find any good ground to interfere in the judgment and order of the court below in the present petition and the same is accordingly dismissed. 14. However, having considered the facts and circumstances of the case, subject to filing of an undertaking by the petitioner-tenant before the Court below, it is provided that: (1) The tenant-petitioner shall handover the peaceful possession of the premises in question to the landlord-respondent on or before 31.5.2018. (2) The tenant-petitioner shall file the undertaking before the Court below to the said effect within two weeks from the date of receipt of certified copy of this order; (3) The tenant-petitioner shall pay entire decretal amount within a period of two months from the date of receipt of certified copy of this order; (4) The tenant-petitioner shall pay damages @ Rs. 500/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 31.5.2018 or till the date she vacates the premises, whichever is earlier and the landlord is at liberty to withdraw the said amount; (5) In the undertaking the tenant-petitioner shall also state that she will not create any interest in favour of the third party in the premises in dispute; (6) Subject to filing of the said undertaking, the tenant-petitioner shall not be evicted from the premises in question till the aforesaid period; (7) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically. (8) In case the house is not vacated as per the undertaking given by the petitioner, she shall also be liable for contempt. 15. No order as to costs.