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2018 DIGILAW 291 (ALL)

Surya Prakash Sharma v. Netra Pal Singh

2018-02-02

SURYA PRAKASH KESARWANI

body2018
JUDGMENT : Surya Prakash Kesarwani, J. 1. Heard Sri P.K. Jain, learned Senior Advocate assisted by Sri Abu Bakht, learned counsel for the defendants-revisionists and Sri Surendra Bir Maurya, learned counsel for the plaintiffs-respondents. 2. This revision under Section 25 of the Provincial Small Causes Court Act,1887, has been filed by the defendants-revisionists/tenants praying to set aside the order dated 16.1.2018 in S.C.C. Suit No. 4 of 2014, Netrapal Singh v. Surya Prakash Sharma and Another passed by the Additional District Judge/Judge Small Cause Court, Gautam Budh Nagar. 3. Briefly stated facts of the present case are that certain shops were constructed by the father of the plaintiffs-respondents namely, Sri Sohan Pal, situate at Naya Bans, Sector 15, Noida, district Gautam Buddh Nagar. As per evidence of DW-1, Sri Surya Prakash dated 1.1.2016, these shops were reconstructed in the year 1986-87. Out of which the shop No. 25 was let out in the year 1988 at monthly rent of Rs. 300/- while shop No. 26 was let out on 1.1.1990 at monthly rent of Rs. 700/-. Thus, total rent for two shops on 1.1.1990 was Rs. 1000/- was per month, which according to the plaintiffs-respondents was enhanced from time to time and ultimately it was enhanced to Rs. 25,000/- from January 2012. In his aforesaid evidence the DW-1 admitted that the size of shop No. 25 is 9 feet x 16 feet and size of shop No. 26 is 7 feet x 20 feet. Thus, total area of these two shops is about 306 Sq. feet. 4. Both the defendants-revisionists were the joint tenant of the disputed shops. The original owner and landlord Sri Sohan Pal died on 22.2.2010. The plaintiffs-respondents being his heirs and legal representatives, became the owner and landlord of the disputed shops. There is no dispute with regard to the landlord and tenant relationship between the plaintiffs-respondents and the defendants-revisionists. The plaintiffs-respondents filed S.C.C. Suit No. 04 of 2014 alleging that the defendant-revisionists have paid the agreed monthly rent of Rs. 25,000/- since 1.2.2012 till December 2013 and thus, on account of default in payment of rent, the aforesaid S.C.C. suit was filed which has been decreed by the impugned judgment dated 16.1.2018 passed by the Additional District Judge/Judge Small Causes Courts, Gautam Buddh Nagar. 5. 25,000/- since 1.2.2012 till December 2013 and thus, on account of default in payment of rent, the aforesaid S.C.C. suit was filed which has been decreed by the impugned judgment dated 16.1.2018 passed by the Additional District Judge/Judge Small Causes Courts, Gautam Buddh Nagar. 5. Aggrieved with the aforesaid judgment and decree the defendants-revisionists have filed the present revision under Section 25 of the Provincial Small Causes Court Act, 1887. 6. Sri P.K. Jain, learned Senior Advocate appearing for the defendants-revisionists/tenants submits that the rent of both the shops was Rs. 1,000/- and Rs. 25,000/- and as such the provisions of U.P. Act 13 of 1972 were applicable, but the court below has proceeded to hold that the provisions of U.P. Act 13 of 1972 are applicable. He submits that this finding is incorrect and, therefore, the impugned judgment of the court below deserves to be set aside. 7. No other point has been argued before me. 8. Learned counsel for the plaintiffs-respondents supports the impugned judgment. 9. I have carefully considered the submissions of learned counsels for the parties and perused the record. 10. Learned counsel for the defendants-revisionists has confined this argument only on two questions as under: (i) Whether under the facts and circumstances of the case, the rent of the disputed shops has been correctly held to be Rs. 25,000/-? (ii) Whether under the facts and circumstances of the case, the provisions of U.P. Act 13 of 1972 are applicable? 11. The first question as afore-noted is concluded by findings of fact recorded by the court below, which is based on consideration of relevant evidences on record. 12. The main defence taken by the defendants-revisionists is the alleged rent deed and rent note being Paper No. 50-Ga and 51-Ga. Both are unregistered. The rent deed (Paper No. 50-Ga) is shown to be an agreement for tenancy for 90 years for the period from 1.2.1988 to 30.1.2078. The second alleged rent deed is shown to be an agreement for tenancy for 90 years for the period from 1.1.1990 to 31.12.2080. Both these papers are unregistered, which were denied by the plaintiffs-respondents and it was stated that both the papers are forged. The plaintiffs-respondents also stated that these papers do bear the signature of his father Sri Sohan Pal. They have also filed a report of hand-writing experts. Sri Rajesh Verma (PW-4). Both these papers are unregistered, which were denied by the plaintiffs-respondents and it was stated that both the papers are forged. The plaintiffs-respondents also stated that these papers do bear the signature of his father Sri Sohan Pal. They have also filed a report of hand-writing experts. Sri Rajesh Verma (PW-4). The plaintiffs-respondents have clearly set up a case that rent of Rs. 1,000/- w.e.f. 1.1.1990 for the disputed shops was enhanced gradually by mutual oral agreement from time to time and on 1.1.2012 it was enhanced to Rs. 25,000/- per month. By list 48-Ga, the defendants-revisionists have filed rent receipts for the period up to 7.8.1993. This shows that receiving of rent was being given by the plaintiffs-respondents/landlord to the defendants-revisionists, but they have filed any rent receipt for the period subsequent to August 1993 to support their stand that the rent continued to be Rs. 1000/- only even in the year 2012. 13. In his evidence PW-3 (Plaintiff No. 1) has stated that the rent from the month of January 2012 became Rs. 25,000/-.The defendants-revisionists have cross examined this witness on this point. The size of the disputed shops have already been mentioned above which reveals that the area of the two shops is 306 Sq. feets which are situate in Sector-15 Noida, Gautam Buddh Nagar, which is a prime location in NOIDA. The DW-1 in his evidence dated 1.1.2016 has admitted these shops to be at a distance of about 300 meters from Metro Station. The plaintiffs have also led evidence of one Om Veer Amana (PW-2), a nearby shop keeper, who stated that he took his shop in the year 2013 and now the rent of it is Rs. 42,350/- per month. These facts support the rental of the disputed shops as stated by the plaintiffs-respondents. 14. In the impugned judgment, the court below has disbelieved the evidence of the defendant-revisionist No. 2 (DW-3), who is co-tenant and brother of the defendant- revisionist No. 1. He stated that he does not know that the rent of the disputed shops is Rs. 19,000/- per month. He was found to be unable to state the rent of the shop. 15. On consideration of the evidence on record including the evidences as briefly mentioned above, the court below recorded a finding of fact that the rent was enhanced on oral agreement and it was enhanced to Rs. 19,000/- per month. He was found to be unable to state the rent of the shop. 15. On consideration of the evidence on record including the evidences as briefly mentioned above, the court below recorded a finding of fact that the rent was enhanced on oral agreement and it was enhanced to Rs. 25,000/- per month in January 2012. The findings so recorded by the court below in the impugned judgment is a finding of fact, based on consideration of relevant evidences on record. Therefore, it cannot be interfered with in revision under Section 25 of the Provincial Small Causes Court Act. 16. So far as the second question is concerned, the answer to the first question, as mentioned above leads to an irresistible conclusion that the rent being Rs. 25,000/- per month, the provisions of U.P. Act 13 of 1972 are not applicable. That apart, in his own evidence dated 1.1.2016, the DW-1 (the defendant-revisionist No. 1) has himself stated that the shops were constructed in the year 1987. Thus, even otherwise, the provisions of U.P. Act 13 of 1972 are not applicable in view of the provisions of Section 2(2) of the Act. 7. In view of the above discussions, I do not find any merit in this revision. Consequently, the revision fails and is, hereby dismissed.