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2018 DIGILAW 1821 (ALL)

Vijay Kumar Bhutani v. Mohini Devi

2018-08-20

VIVEK KUMAR BIRLA

body2018
JUDGMENT : 1. Heard Sri Ashish Kumar Singh, learned counsel for the revisionist and Sri Atul Dayal, learned counsel for the opposite party and perused the record. 2. Present revision has been filed challenging the impugned judgment and order decree dated 7.2.2018 passed by the Additional District Judge/Judge Small Causes Court, Muzaffar Nagar in SCC Suit No. 1/2009 (Mohini Devi vs. Vijay Kumar Bhutani and others). 3. By the impugned judgment and decree, SCC suit filed by the landlord-plaintiff (respondent herein) was allowed by the Court below. The suit was filed on the ground that the plaintiff is landlord of house no. 790, Gali No. 12 (old no. 5/4) Gandhi Colony, Muzaffar Nagar and the defendant-Vijay Kumar Bhutani is tenant in the aforesaid house consisting of three rooms, store, kitchen, bathroom, shed and courtyard at the rate of Rs. 3,000/-per month plus taxes and as such, provisions of UP Act 13 of 1972 are not applicable in the present case. A registered notice dated 3.7.2008 was sent through counsel, which was received by the defendant on 5.7.2008 and incorrect reply dated 4.8.2008 was given by him denying title of the landlord and claimed himself to be the owner of the property. It was further highlighted that in the earlier notice description of the property was not given properly, therefore, a fresh registered notice dated 9.8.2008 was given to the defendant, which was received by him 13.8.2008 and was incorrectly replied by tenant. Thereafter, he has not tendered any rent and arrears were claimed from 2.1.2006. The suit was contested by the tenant-defendant denying title of the landlord and claimed himself to be the owner of the property on the basis of adverse possession. It was claimed that earlier in the northern portion one Veer Prakash was in possession and in southern portion one Kalaraji was in possession, who vacated the portion in June, 1995. The defendant was the tenant in the house of one Sardar Dhawan at a distance of one house and when he was pressurized to vacate the premises immediately, the defendant, under compulsion, took over the possession of the property and shifted there. The defendant was the tenant in the house of one Sardar Dhawan at a distance of one house and when he was pressurized to vacate the premises immediately, the defendant, under compulsion, took over the possession of the property and shifted there. The defendant came in possession on 15.9.1995 and when it was objected to by Veer Prakash, he denied the same and on this Veer Prakash called his family members including the landlord and tried to dispossess him but his possession could not be disturbed and therefore, he is in adverse possession of the disputed property since 15.9.1995 and since, it is last more than 12 years his possession has not been disturbed and no proceedings to dispossess him have been undertaken, therefore, he has become owner of the property in question on the basis of adverse possession. It was further alleged that in such view of the matter the suit was barred by Section 23 of the Provincial Small Causes Courts Act, 1887. Large number of documents were filed before the trial Court by the landlord-plaintiff (opposite party herein) and in the shape of oral evidence plaintiff-Rajkumar was examined as PW1 and Jagdish Bindra was examined as PW-1 and two other witnesses, namely, Gurmeet Kaur and Kulbhushan also filed their affidavits. The defendant also filed several documentary evidences and was examined himself as DW-1 and Mohd. Abid was examined as DW-2 and affidavit of Yogesh Gupta was filed by the defendant. 4. The sole issue framed by the trial Court is as to whether there exists any relationship of tenant-landlord between the parties or the defendant is owner of the disputed property in question on the basis of adverse possession. It was found that that the plaintiffs are owner and landlord of the disputed property in question through registered Will dated 24.3.2011 executed by Mohini Devi and rate of rent is Rs. 3,000/-per month. Regarding his ownership, apart from his ownership which has never been questioned anywhere, the landlord has produced copies of the house tax and water tax to indicate that name of Rajkumar has been registered as landlord and rent deed dated 11.1.2016 in original executed between Rajkumar and Dheer Singh was also filed. Information letter issued by Gandhi Colony Co-operative Housing Society was also filed. No documentary evidence contrary to this was filed by the defendant. The defendant claimed his adverse possession w.e.f. 15.9.1995. Information letter issued by Gandhi Colony Co-operative Housing Society was also filed. No documentary evidence contrary to this was filed by the defendant. The defendant claimed his adverse possession w.e.f. 15.9.1995. In support of his case to prove that he is in possession, the defendant filed progress report of his daughter Chinky Bhutani for the year 1995-96 as paper no. 151-Ga. He also filed progress report of his son Ankush for the year 1996-97 wherein the year was not mentioned and also filed progress report of Chetna Bhutani and progress report of Kiran. The trial Court found that in all such progress report, the house number has been interpolated and has been written with different pen with ink whereas in support of his case, the plaintiff has filed voter list of the year 1999 being paper no. 105Ga, which indicates that the name of Vijay Kumar, defendant-revisionist, who was resident of house no. 791, was mentioned whereas the property in question is house number 790. He also filed paper no. 183-Ga from which it is clear that in the year 2001 Sardar Dhawan has written a letter for transferring the house no. 791-5/5 in the name of some other person, which clearly indicates that the aforesaid house was vacated in the year 2000, which was admittedly being occupied by the tenant-defendant (revisionist herein), who claims that he was forced to go out of the said house in the year 1995 and had taken forcible possession of the disputed property on 15.9.1995. The trial Court also found that in case any person has forcibly occupied the house in the year 1995, there was no occasion for the landlord not to object upto 2008 and it is only in the year 2008 when electricity connection of the defendant was disconnected by the plaintiff and proceedings under Section 107/116 Cr.P.C. were initiated, which is also clear from the documentary evidence, it cannot be said that the defendant was in adverse possession. In support of his argument, the plaintiff has also produced photocopy of the rent receipts on the counterfoils whereof signature of the revisionist exists although the same have been denied as forged. Paper no. In support of his argument, the plaintiff has also produced photocopy of the rent receipts on the counterfoils whereof signature of the revisionist exists although the same have been denied as forged. Paper no. 100Ga/3 has also been filed by the plaintiff, which is a photocopy of the application dated 17.6.2008 given by the defendant-revisionist Vijay Kumar himself stating therein that he is tenant in the house in dispute for the last 15-16 years and his electricity connection has been illegally disconnected by the plaintiff. 5. Submission of the learned counsel for the revisionist is that since the tenant-landlord relationship was specifically denied and plea of being owner on the ground of adverse possession was specifically raised, the suit was barred by Section 23 of Provincial Small Causes Courts Act, 1887 and thus, the impugned order is wholly without jurisdiction as the Judge Small Causes Court has no jurisdiction to go into the question of adverse possession. He next submits that the plaintiff could not prove tenant-landlord relationship. It is further submitted that the date of commencement of tenancy has not been specifically given in the plaint. It is lastly submitted that it was the case of the plaintiff that rent receipts bear signature of his father, however, a finding has been recorded by the trial Court that rent receipts did not bear the signature of the father of the plaintiff. In support of his arguments, learned counsel for the revisionist has placed reliance on the judgments of this Court rendered in the case of Mst. Bhagmani Devi (D) through L.Rs. vs. VIIIth Addl. District Judge, Varanasi and others, 2012 (1) AWC 179 and in Jitendra Kumar and others vs. N.B. Singh and others, 1982 ARC 387. 6. Per contra, Sri Atul Dayal, learned counsel for the opposite parties has submitted that the sole claim of the defendant-revisionist is based on photocopies of the progress report/result card of his children, which cannot be accepted as a piece of evidence. He further submits that even the interpolation and overwriting, which was apparent on the face of documents, was also noted by the trial Court and was, thus, rightly rejected. He further pointed out that when the electricity connection was disconnected, in his report lodged to the police station the defendant-revisionist himself stated that he is tenant in the disputed property for the last more than 15-16 years. He further pointed out that when the electricity connection was disconnected, in his report lodged to the police station the defendant-revisionist himself stated that he is tenant in the disputed property for the last more than 15-16 years. He thus submits that no evidence is required to prove that there was a landlord-tenant relationship and the case of the defendant that he is owner on the ground of adverse possession has no legs to stand. He further pointed out that the voter list of the year 1999 clearly indicates that the defendant-revisionist has been shown as resident of house no. 791 whereas the disputed house number is 790 and therefore, clearly he has not taken over any forcible possession in the year 1995. It was further pointed out that the document being paper no. 183-Ga clearly indicates that owner of that house no. 791, where the defendant was earlier tenant, has applied for allotment of the house in the year 2000 on the ground that the defendant-revisionist has vacated the same. He next submits that to take plea of adverse possession, the ownership of landlord has to be admitted and the possession has to be exclusive in nature whereas admittedly, on the same property both the plaintiff and defendant are in possession, therefore, the element of adverse possession has not been made out. It was next submitted that the law does not require that date of commencement of tenancy be given in the plaint. By drawing attention to the affidavit of the defendant, in cross-examination of the defendant at page 102 it was highlighted that on the death certificate of his mother dated 28.10.2013, the defendant-revisionist has admitted that new no. 790 has been added but he is not aware who has added the same. He further pointed out that the document being paper no. 183-Ga is dated 14.7.2001. It was further submitted that the counterfoils bear the signature of the defendant-revisionist and in case he is disputing as forged document, he never asked for any handwriting expert. He next submits that there is no dispute about the fact that Act is not applicable in the present case and there is no dispute about the service of notice. He however submitted that denial of title of landlord is sufficient for the purpose of eviction. 7. He next submits that there is no dispute about the fact that Act is not applicable in the present case and there is no dispute about the service of notice. He however submitted that denial of title of landlord is sufficient for the purpose of eviction. 7. The crux of the argument of learned counsel for the opposite parties is that: the denial of title is not bona fide; plea of adverse possession could not be substantiated; all such incidental issues can be considered by the Judge Small Causes Court; it is proved by documentary evidence that till the year 1999 the defendant-revisionist was resident of house no. 791 and got the present house no. 790 in the year 2000; there is no requirement of law to plead the date of commencement; and that the notice was duly served and replied and since rent is Rs. 3,000/-per month, therefore, the Act is not applicable and the service of notice is sufficient. 8. In support of his arguments, learned counsel for the opposite parties has placed reliance on the judgments rendered in the cases of Majati Subbarao vs. PVK Krishna Rao, (1989) 4 SCC 732 ; Dharam Raj Singh vs. IXth Additional District Judge, 2006 (4) AWC 3987; Dagabdabai (Dead) By LRs vs. Abbas @ Gulab Rustum Pinjari, (2017) 4 SCC 65; Bapusaheb Chimasaheb Naiknimbalkar (Dead Thr LRs) and anohter vs. Mahesh Vijaysinha Rajebhosale & others, (2017) 7 SCC 769 ; Badri Khatik vs. Narain Singh, 1946 AIR (Pat) 185; Ram Nath vs. Neeta, 1962 AIR (All) 604; Rakesh Kakkar vs. Subodh Mohan, 2005 (23) LCD 109; and in Shamim Akhtar vs. Iqbal Ahmad, (2000) 8 SCC 123 . 9. I have considered the rival submissions and perused the record. 10. On perusal of the record, I find that the argument of learned counsel for the opposite parties has force and findings of the lower Court are based on documentary evidence. Apart from other evidences that have already been discussed while recording findings by the trial Court and also recording the arguments of learned counsel for the opposite parties, suffice it to note that on rent receipts it was found that the tenant has signed the same and the other counterfoils also bear the signatures of other tenants and the duration of which the rent has been received, has also been issued. Apart from that the document being paper no. Apart from that the document being paper no. 100Ga/3, which is admittedly an application dated 17.6.2008 given by the defendant-revisionist to the Station House Officer, PS Kotwali Nai Mandi he himself has mentioned that he is tenant in the disputed house for the last 15-16 years. It may also be noticed that the present suit was filed in the year 2009 and the above noted document is of the year 2008, however, to dispute his signatures on the aforesaid document (paper no. 100Ga/3), he initiated proceedings under Section 156(3) Cr.P.C. on 16.7.2012 that is after about four years, which clearly, as rightly held by the Court below, was an afterthought and cannot be relied on. The documents that were submitted by the defendant were only the photocopies of the progress report of his children wherein there had been interpolation and overwriting by a different pen with different ink and was thus rightly rejected by the trial Court. The voter list of the year 1999 prepared about four years as adverse possession has been claimed since 1995 also clearly indicates that he was resident of house no. 790. 11. A supplementary affidavit has been filed placing on record rent receipts and counterfoils, which are part of the record. The trial Court has recorded that the counterfoils bear the signatures of the defendant. On bare glace of the same and signatures thereof with naked eyes, it appears that signature in the affidavit filed in support of the application, prima facie, indicates that they were apparently signed by the revisionist. However, without going into that I find that there is no perversity, illegality or jurisdictional error in the judgment and decree dated 7.2.2018 passed by the Additional District Judge/Judge Small Causes Court, Muzaffar Nagar in SCC Suit No. 1/2009 (Mohini Devi vs. Vijay Kumar Bhutani and others), which is perfectly based on documentary evidence. 12. 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. 13. 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. Vs. Dilbahar Singh (2014) 9 SCC 78 according to which no interference is warranted in such findings of fact. 13. 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. Vs. 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. 14. Present revision is bereft of merit and accordingly dismissed. 15. However, having considered the facts and circumstances of the case, subject to filing of an undertaking by the revisionist-tenant before the Court below, it is provided that: (1) The tenant-revisionist shall handover the peaceful possession of the premises in question to the landlady-opposite party on or before 30.10.2018. (2) The tenant-revisionist 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-revisionist 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-revisionist shall pay damages @ Rs. 7,500/-per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 30.10.2018 or till the date he vacates the premises whichever is earlier and the landlady is at liberty to withdraw the said amount; (5) In the undertaking the tenant-revisionist shall also state that he 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-revisionist 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 shop is not vacated as per the undertaking given by the tenant-revisionist, he shall also be liable for contempt.