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2018 DIGILAW 505 (ALL)

RAJU SAVITA v. AMARNATH

2018-02-26

SURYA PRAKASH KESARWANI

body2018
JUDGMENT : Hon'ble Surya Prakash Kesarwani,J. Heard Sri Anil Kumar Pandey, learned counsel for the defendant-tenant/petitioner and Sri Santosh Kumar Srivastava, learned counsel for the plaintiff-landlord/respondent. 2. This petition under Article 227 of the Constitution of India has been filed praying to set aside the judgment dated 16.04.2014 in P.A. Case No.50 of 2008 (Amarnath vs. Raju Savita) passed by the Additional Judge Small Cause Court/Prescribed Authority, Agra and the judgment dated 21.12.2017 in Misc. Appeal No.63 of 2014 (Raju Savita vs. Amarnath) passed by the Additional District Judge, Court No.6, Agra. 3. Briefly stated facts of the present case are that House No.164B, situate in Survey No.52/301, Sultanpura, Agra Cantt., P.S. Sadar Bazar, Agra is owned by the plaintiff-respondent. The disputed shop is situate in the said house. According to the plaintiff-respondent, the father of the defendant namely Sri Bengali Ram was originally the tenant. After his death, the defendant being his son continued as a tenant in the disputed shop. The plaintiff respondent filed a P.A. Case No.50 of 2008 on the ground of bona fide need for starting business by his son Arjun. The said P.A. case was decreed by the Additional Judge Small Cause Court/Prescribed Authority, Agra vide impugned judgment dated 16.04.2014. Aggrieved with the said judgment, the defendant tenant filed a Misc. Appeal No.63 of 2014, which has been dismissed by the impugned judgment dated 21.12.2017 passed by the Additional District Judge, Court No.6, Agra. Aggrieved with this judgment, the defendant-tenant/petitioner has filed the present petition. 4. Learned counsel for the defendant-tenant/petitioner submits that the disputed shop has been allotted to him by the Cantonment Board, Agra vide allotment letter dated 29.06.2002. Thus he is tenant of the Cantonment Board, Agra and not the tenant of the plaintiff-respondent. There was no relationship of landlord and tenant between the plaintiff-respondent and the defendant-tenant and, therefore, the suit itself was not maintainable. In support of his submission, he referred to allotment letter dated 29.06.2002 and a letter of the Cantonment Board dated 27.04.2010 addressed to one Sri Narendra Nauhwar, who obtained it under the Right to Information Act, 2005. There was no relationship of landlord and tenant between the plaintiff-respondent and the defendant-tenant and, therefore, the suit itself was not maintainable. In support of his submission, he referred to allotment letter dated 29.06.2002 and a letter of the Cantonment Board dated 27.04.2010 addressed to one Sri Narendra Nauhwar, who obtained it under the Right to Information Act, 2005. On the strength of a letter dated 01.02.2018 addressed to one Sri Sudha Devi wife of the defendant tenant/petitioner issued by the Cantonment Board, Agra and filed today as Annexure-5 to the supplementary affidavit, it is submitted that the plaintiff-respondent has illegally constructed five shops adjoining to his house No.164B but on humanitarian grounds, those shops were not demolished and instead its allotment was made in favour of the occupant and damages charges are being realized. He admits that this paper has neither been filed in evidence before the Prescribed Authority nor before the Appellate Court but submits that since it has been certified by the Cantonment Board that the shop was allotted to the defendant-tenant and as such there is no relationship of landlord and tenant between the plaintiff-respondent and the defendant-tenant/petitioner. The plaintiff-respondent has filed a release application against another tenant which was dismissed by the Additional Judge Small Cause Court/Prescribed Authority, Agra by a judgment dated 10.04.2013. A copy of this judgment was filed before the Prescribed Authority and yet the prescribed Authority has allowed the release application of the plaintiff-respondent. 5. Learned counsel for the plaintiff-respondent supports the impugned judgments. 6. I have carefully considered the submissions of the learned counsel for the parties and perused the record of the petition before me. 7. It is undisputed that the disputed shop was constructed by the plaintiff-respondent. It was let out by him to one Sri Bengali Ram, the father of the defendant-tenant in the year 1996. Rent receipts being paper No.52ga/1 to 8, 53ga/ 1 to 8, 54ga/ 1 to 7, 55ga/ 1 to 5 evidencing payment of rent by Sri Bengali Ram and Paper No.55ga/ 2 to 4 and 6 to 38 being rent receipts for payment of rent by the defendant-tenant, were filed in evidence. Rent receipts being paper No.52ga/1 to 8, 53ga/ 1 to 8, 54ga/ 1 to 7, 55ga/ 1 to 5 evidencing payment of rent by Sri Bengali Ram and Paper No.55ga/ 2 to 4 and 6 to 38 being rent receipts for payment of rent by the defendant-tenant, were filed in evidence. The plaintiff respondent also filed in evidence paper No.7ga, 18ga and paper No.10ga being Photostat copy of house tax and water tax assessment for the year 2002-2005, paper No.58ga/2 being particulars of Land Register relating to House No.154B, Sultanpura, Agra received by his father Sri Vishambhar Nath by partition deed dated 01.04.1958 situate in survey No.52/301, measuring 3819 square feet. Paper No.66ga/2 being receipt for payment of house tax and water tax by Vishambhar Nath and Paper No.66ga/1 being receipt for payment of house tax and water tax dated 17.01.2012 by the plaintiff respondent. Paper No.60ga is the affidavit of Anil Prakash Rawat, which was filed in evidence in which it has been stated that in the month of August, 1996 Sri Bengali Ram father of the defendant-tenant has taken the disputed shop on rent from the plaintiff-respondent at a monthly rent of Rs.300/- and the aforesaid Bengali Ram and the plaintiff-respondent have executed a rent deed which was kept by Bengali Ram. Paper No.38ga is the affidavit of one Sri Rajan Maisi, which was filed in evidence and in which it has been stated that the plaintiff-respondent is the house owner in which shops are situated and earlier the aforesaid Bengali Ram took the disputed shop on rent from the plaintiff-respondent and, thereafter, his son namely the defendant-tenant has continued. The rent receipts for payment of rent by the earlier tenant namely Sri Vinod Kumar were also filed in evidence by the plaintiff-respondent. The defendant tenant took the stand that the disputed shop was allotted to him in the year 2002 by the Cantonment Board and he is paying rent of Rs.300/- to the Cantonment Board. He also denied the execution of any rent agreement between his father and plaintiff-respondent. He stated that the disputed property is situated in Survey No.52/394. He took the stand that the receipt for payment of rent receipt showing the payment of rent by his father Bengali Ram, filed by the plaintiff-respondent in evidence are forged. However, he has not filed any evidence to establish that the receipts are forged. He stated that the disputed property is situated in Survey No.52/394. He took the stand that the receipt for payment of rent receipt showing the payment of rent by his father Bengali Ram, filed by the plaintiff-respondent in evidence are forged. However, he has not filed any evidence to establish that the receipts are forged. He has also not filed opinion of any handwriting expert in this regard. On these facts, the trial court and the appellate court recorded a finding of fact that the plaintiff-respondent is the landlord of the disputed shop and the defendant is his tenant. The relationship of landlord and tenant was found to be in existence based on consideration of several evidences on record. Even as per his own case as argued before this court on the strength of a Photostat copy of the alleged letter of the Cantonment Board dated 01.02.2018 filed as Annexure-SA-5 to the supplementary affidavit, it is evident that the disputed shop was constructed by the plaintiff-respondent. The case which the defendant-tenant wants to set up at this stage before this court, is that although the shop was constructed by the plaintiff-respondent and it was let out but the construction was illegal and, therefore, it has been given by the Cantonment Board to the occupant on damages on humanitarian ground instead of demolishing it. 8. No evidence whatsoever could be filed by the defendant-tenant to establish that either the disputed shop was not constructed and let out by the plaintiff-respondent or that there was a valid allotment by the Cantonment Board in his favour. The papers which are being relied and which have been filed along with the supplementary affidavit as aforementioned, were not filed in evidence before the courts below. That apart, the alleged allotment letter dated 29.06.2002 filed as Annexure-1 to the petition, shows that licence of a stall/ shop at Sultanpura, Agra Cantt. was given by the Cantonment Baord, Agra to the defendant at a monthly licence fee of Rs.300/- subject to execution of a licence agreement on a non-judicial stamp of Rs.100/- within seven days of the receipt of the letter and deposit of three months licence fees and Rs.10,000/- as damages charges. Neither any such licence agreement was filed in evidence before the court below nor before this court. Neither any such licence agreement was filed in evidence before the court below nor before this court. That apart, this allotment letter is with respect to a shop at SY.NC 52/394 (known as House No.164), Sultanpura, Agra Cantt. Thus, even if it is assumed that the alleged allotment letter dated 29.06.2002 relates to licence of the disputed shop, it is of no consequence as no evidence for complying with the conditions mentioned in the said letter has been filed before the courts below. The findings recorded by the court below that the disputed shop was let out by the plaintiff-respondent to the defendant petitioner at a monthly rent of Rs.300/- and that the defendant is the tenant, 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. 9. It is settled law that in an eviction suit filed by a landlord against the defendant-tenant, the landlord and tenant are the only necessary parties. The plaintiff-landlord in such a suit is required to plead and prove only two things to enable him to claim a decree for eviction against his tenant from the tenanted suit premises. The first thing is that the plaintiff-landlord has to prove that there exists a relationship of the landlord and tenant between the plaintiff and the defendant and secondly, the grounds on which the plaintiff-landlord has sought defendant-tenant's eviction under the Rent Act exists. When these two things are proved, eviction suit succeeds. The the question of title to the suit premises is not germane for the decision of a eviction suit. The reason being, if the landlord fails to prove his title to the suit premises but proves the existence of relationship of the landlord and tenant in relation to the suit premises and also proves existence of the grounds on which the eviction is sought, the eviction suit succeeds. In the present set of facts, it has been proved by the plaintiff-landlord/respondent that the disputed shop constructed by him was let out by him to the original tenant Sri Bengali Ram, after whose death the defendant-tenant/petitioner being his son continued as a tenant of the disputed shop. Relationship of landlord and tenant between the plaintiff-landlord/respondent and the defendant-tenant/petitioner was established. Relationship of landlord and tenant between the plaintiff-landlord/respondent and the defendant-tenant/petitioner was established. The defendant-tenant/petitioner has completely failed to file in evidence an alleged lease-deed of the disputed shop by the Cantonment Board in his favour. The P.A. Case was filed by the plaintiff-landlord/respondent on account of bona fide need of which he established. Therefore, the courts below have not committed any manifest error of law to allow the P.A. Case No.50 of 2008. The findings recorded by the courts below on the question of bona fide need and comparative hardship are findings of fact based on consideration of relevant evidences on record and, therefore, it cannot be interfered with in jurisdiction under Article 227 of the Constitution of India. Under the circumstances and keeping in view the limited scope in rent cases as held by Hon'ble Supreme in the case of Kanaklata Das and otehrs Vs. Naba Kumar Das and others, (2018) 2 SCC 352 (Paras-11 to 11.6), I find that the impugned judgments do not suffer from manifest error of law. 10. The judgment in P.A. Case No.49 of 2008 dated 10.04.2013 relates to some other person/tenant namely Sri Rajkumar Khshwaha. Perusal of the said judgment shows that except filing an affidavit in evidence, no other evidence was filed by the landlord to establish that the defendant in that case has paid any rent to the plaintiff-landlord accepting him as landlord. The Appellate Court in the appeal filed by the defendant tenant/petitioner herein considered the said judgment of the Prescribed Authority in P.A. Case No.50 of 2008 and observed that it has no effect in the appeal before it since the said case has been decided on the basis of the pleadings and evidences filed by the parties in that case. Thus, I do not find any manifest error of law in the observation made by the Appellate Court to distinguish the judgment and order passed by the Prescribed Authority in the aforesaid P.A. Case No.50 of 2008 relating to another person. 11. In view of the above discussion, I do not find any merit in this petition. Consequently, the petition fails and is hereby dismissed.