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2018 DIGILAW 473 (ALL)

Kamla Devi v. Additional District Judge

2018-02-21

SURYA PRAKASH KESARWANI

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JUDGMENT : Surya Prakash Kesarwani, J. 1. Heard Sri Kamla Prasad Tiwari, learned counsel for the defendants-petitioners and Sri Rishikesh Tripathi, learned counsel for the Plaintiffs-respondents/landlord no. 2. 2. This Petition under Article 227 of the Constitution of India, has been filed praying to set aside judgment dated 25.11.2017 and the decree in S.C.C. Revision No. 29 of 2014, Jagdish Kumar Tiwari v. Smt. Kamla Devi and Others passed by the Judge Small Causes (Court No. 1), Jhansi. 3. Briefly stated facts of the present case are that undisputedly one Ram Gopal and Sri Badri Prasad had jointly purchased house No. 587/33 and 587/34, mohalla Maseehaganj (Nalganj) near Sarswati Inter College, Sipari Bazar, Jhansi by registered sale deed dated 23.4.1962 (Paper No. 41-Ga). The husband of the defendant-petitioner no. 1 and father of the defendant-petitioner nos. 2, 3 and 4, namely Sri Pratap Singh was inducted as a tenant in the aforesaid house No. 587/34, Sipari Bazar, Jhansi at a monthly rent of Rs. 6/- which was subsequently increased to Rs. 7.50 per month. 4. According to the plaintiffs/landlords-respondents an oral partition took place between Ram Gopal and Badri Prasad. The partition was acted upon. Sri Badri Prasad died some time in the year 1980. His wife Smt. Bhoori Devi, in view of the partition, sold her house No. 587/33 to one Sri Ramesh Chandra Srivastava by registered sale-deed dated 24.8.1997 (Paper No. 43-Ga). The aforesaid Sri Pratap Singh, the original tenant died. The tenancy was succeeded by his heirs and legal representatives, who are the defendants-petitioners herein. 5. According to the owner and landlord Sri Ram Gopal Tiwari, the rent was not being paid by the defendants-petitioners/tenants and as such he issued a notice dated 17.1.1997 requiring the defendants-petitioners to pay the arrears of rent from 1.1.1967. The notice was returned and as such the aforesaid landlord again issued a notice dated 17.12.1997 to the defendants-petitioners/tenants demanding arrears of rent and determining the tenancy. This notice was served upon the defendants-petitioners on 19.12.1997. Since, the notice was not complied with and as such the aforesaid landlord Sri Ram Gopal Tiwari filed Suit No. 08 of 1998, Ram Gopal Tiwari v. Smt. Kamla Devi and Others. 6. During pendency of the suit, the aforesaid landlord Ram Gopal Tiwari died. This notice was served upon the defendants-petitioners on 19.12.1997. Since, the notice was not complied with and as such the aforesaid landlord Sri Ram Gopal Tiwari filed Suit No. 08 of 1998, Ram Gopal Tiwari v. Smt. Kamla Devi and Others. 6. During pendency of the suit, the aforesaid landlord Ram Gopal Tiwari died. He was substituted by his legal heirs and representatives namely Smt. Ram Kali (wife), Sri Mahesh Kumar, Ghanshyam Tiwari, Jagdish Kumar Tiwari and Sri Kailas Narayan (sons). The defendants-petitioners filed written statement dated 3.7.1998 in which they admitted that both the houses bearing municipal nos. No. 587/33 and 587/34, mohalla Maseehaganj (Nalganj) near Sarswati Inter College, Sipari Bazar, Jhansi, were owned by Sri Ram Gopal Tiwari and Badri Prasad. 7. The main dispute raised by the defendants-petitioners/tenants in their written statement, was that no legal partition took place between the plaintiff-landlord namely, Sri Ram Gupal Tiwari and the heirs of the co-owner late Sri Badri Prasad and that the rent is not in arrears from January 1967, but from 20.12.1983. Accordingly, the defendants- petitioners/tenants deposited the arrears of rent with the trial court from December 1983 to April 1998 amounting to Rs. 1,600/- so as to get the benefit of Section 20(4) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act,1972 (hereinafter referred to U.P. Act 13 of 1972). The aforesaid suit was decreed by the trial court vide judgment dated 29.7.1999. 8. Aggrieved with the aforesaid judgment, the defendants-petitioners filed S.C.C. Revision No. 115 of 1999, which was allowed vide judgment dated 3.3.2003 and the matter was remanded to the trial court to pass a judgment afresh after affording opportunity of hearing to the parties. 9. Aggrieved with this judgment, the plaintiff-landlord/respondent filed Writ-A No. 18514 of 2003, Ram Gopal Tiwari v. Smt. Kamla Devi and Others, which was dismissed by this Court by order dated 3.9.2012. On remand, the aforesaid S.C.C. Suit No. 08 of 1998 was dismissed by the Judge Small Cause Court by judgment dated 16.12.2013. 10. Aggrieved with this judgment, the plaintiffs-landlord/respondents filed S.C.C. Revision No. 29 of 2014, Jagdish Kumar Tiwari v. Smt. Kamla Devi and Others, which was allowed by the impugned judgment dated 25.11.2017 passed by the Additional District Judge (Court No. 1), Jhansi, and the suit has been decreed. 11. 10. Aggrieved with this judgment, the plaintiffs-landlord/respondents filed S.C.C. Revision No. 29 of 2014, Jagdish Kumar Tiwari v. Smt. Kamla Devi and Others, which was allowed by the impugned judgment dated 25.11.2017 passed by the Additional District Judge (Court No. 1), Jhansi, and the suit has been decreed. 11. Aggrieved with this judgment the defendants-petitioners/tenants have field the present petition under Article 227 of the Constitution of India. 12. Learned counsel for the defendants-petitioners/tenants submits that the revisional court committed a manifest error of law to record the finding that the arrears of rent were not paid in full and consequently, the defendants-petitioners/tenants are not entitled to the benefit of Section 20(4) of U.P. Act 13 of 1972. He submits that as per plaint, the arrears of rent was merely Rs. 267/- while the defendants-petitioners/tenants have deposited a sum of Rs. 1,600/- on the first date of hearing. Therefore, the revisional court committed a manifest error of law to hold that the defendants-petitioners/tenants are not entitled to the benefit of Section 20(4) of the Act. He further submits that no partition took place between the plaintiffs-landlord/respondents Ram Gopal Tiwari and the heirs of Badri Prasad Tiwari. Therefore, Ram Gopal Tiwari or his heirs are not the landlord of the disputed house. He submits that this Court by order dated 3.9.1912 in Writ-A No. 18514 of 2003, Ram Gopal Tiwari v. Smt. Kamla Devi and Others, specifically directed the trial court to formulate an additional issue on the aspect of partition but that was not done by the trial court and, therefore the impugned judgment of the revisional court cannot be sustained. 13. Learned counsel for the plaintiffs-landlord/respondents the impugned judgment. 14. I have carefully considered the submissions of the learned counsels for the parties and perused the record of the petition before me. 15. In his written statement the defendant-tenant/petitioners have admitted that the disputed house No. 587/33 and another house No. 587/34, Sipari Bazar, Jhansi, were owned by Sri Ram Gopal Tiwari and late Badri Prasad. They also admitted that they were inducted as tenant at a monthly rent of Rs. 6/-. They admitted the rent to be due from 20.12.1983. Thus, there is no dispute that the plaintiff-landlord/respondent, namely, the deceased Ram Gopal Tiwari was the co-owner of the disputed house Nos. 587/34 and another house No. 587/33, Sipari Bazar, Jhansi. 16. They also admitted that they were inducted as tenant at a monthly rent of Rs. 6/-. They admitted the rent to be due from 20.12.1983. Thus, there is no dispute that the plaintiff-landlord/respondent, namely, the deceased Ram Gopal Tiwari was the co-owner of the disputed house Nos. 587/34 and another house No. 587/33, Sipari Bazar, Jhansi. 16. Admittedly, the defendants-petitioners are the tenant of the disputed house. According to them the rent was paid up to 20.12.1983. Thus, the landlord-tenant relationship stands established between the plaintiff-landlord and the defendants-/tenants. 17. In the case of Om Prakash v. Mishri Lal, (2017) 5 SCC 451 (Para-32), Hon'ble Supreme Court held that where the house is owned by several co-owners and the suit is filed only by one of the co-owners, it shall be maintainable, if other co-owners do not object to it. 18. The facts of the case clearly shows that the suit was instituted by the plaintiff-landlord in the year 1998, but none of the heirs and legal representatives of the co-owner, namely late Sri Badri Prasad Tiwari have raised any objection to the ownership and land-lordship of the plaintiff-landlord with respect to the disputed house. This fact coupled with the sale deed executed by the wife of Sri Badri Prasad and the oral evidence of the plaintiff-landlord clearly proves that there was partition between Ram Gopal Tiwari and Badri Prasad Tiwari and as a consequence thereof, the plaintiff-landlord namely Ram Gopal Tiwari is the landlord of the disputed house. 19. The trial court, pursuant to the remand direction as well as the directions of this Court in Writ-A No. 18514 of 2003, Ram Gopal Tiwari v. Smt. Kamla Devi and Others considered the case and recorded a finding of fact that there was a partition of the disputed house between the co-owners. 20. The next submission of the learned counsel for the defendants-petitioners/tenants regarding benefit of Section 20(4) of the aforesaid Act, has also no substance. 21. In paragraph-6 of the plaint, the plaintiff-landlord has clearly stated that the rent is due from 1.1.1967 to 19.1.1998, which comes to Rs. 2,686/- but since, the rent from 1.1.1967 to 1.2.1995 is barred by limitation and as such the claim is being filed for rent from 2.2.1995 to 19.1.1998. 22. 21. In paragraph-6 of the plaint, the plaintiff-landlord has clearly stated that the rent is due from 1.1.1967 to 19.1.1998, which comes to Rs. 2,686/- but since, the rent from 1.1.1967 to 1.2.1995 is barred by limitation and as such the claim is being filed for rent from 2.2.1995 to 19.1.1998. 22. In paragraph-15 of the written statement, the defendants-petitioners/tenants have clearly admitted the rent to be due from December 1993 to April 1998 and as per their admission they deposited a sum of Rs. 1,600/- so as to take benefit of Section 20(4) of the Act. 23. The trial court while passing the judgment dated 16.12.2013 in S.C.C. No. 08 of 1998 has not noticed the evidences on record as to the rent admittedly due. Thus, the findings recorded by the Judge Small Cause Court in the aforesaid judgment dated 16.12.2013, that the entire rent due was deposited by the defendants-tenants/petitioners on the first date of hearing so as to get protection of Section 20(4) of the Act, was perverse. Consequently, the revisional court by the impugned judgment dated 25.11.2017 in S.C.C. Revision No. 29 of 2014, has set aside this finding after referring to documentary evidences on record regarding deposit of rent etc. which were completely ignored by the Judge Small Cause Court. The revisional court found that as per evidences on record, the entire amount of rent for use and occupation of the building due from the defendants-petitioners/tenants together with interest was Rs. 2060.40, while the defendants-petitioners/tenants had deposit merely Rs. 1,600/- on the first date of hearing. Thus, a sum of Rs. 460.40 was short deposited. Therefore, the defendants-petitioners/tenants are not entitled to the benefit of Section 20(4) of the Act. The findings so recorded by the court below is a finding of fact based on consideration of relevant evidences on record and, therefore it cannot be interfered with under Article 227 of the Constitution of India. 24. The submission of the learned counsel for the defendants-petitioners/tenants that the trial court has not considered the issue of partition, is wholly incorrect, inasmuch, the trial court has specifically considered this issue and after referring to the evidences on record, found that there was partition. 25. In view of the above discussions, I do not find any merit in this petition. Consequently, the petition fails and is hereby dismissed with costs of Rs. 10,000/-