Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 718 (ALL)

HAZARI LAL v. ADDITIONAL DISTRICT JUDGE LUCKNOW

2018-03-27

MAHENDRA DAYAL

body2018
JUDGMENT : Mahendra Dayal, J. I have heard Shri Shesh Verma, learned counsel for the petitioner and Shri Manoj Dubey, learned counsel for the respondents and also perused the record. 2. The tenant-petitioner having lost from both the courts below, has preferred this writ petition for quashing of the judgment and order dated 14.9.2001, passed by the Judge, Small Causes Lucknow and the judgment and order dated 28.10.2006, passed by the Additional District Judge, Lucknow in SCC Revision No. 126 of 2001. 3. The respondent No. 3 (since deceased) filed a suit for ejectment and arrears of land against the petitioner with the allegation that he was landlord in respect of two kotharies, in which the petitioner was tenant. According to him the portion under occupation of the petitioner was allotted to him under family settlement. The petitioner was tenant in respect of two kotharies on monthly rent of Rs. 20/-. The petitioner failed to pay rent with effect from 1.7.1972 and till 31.12.1972 he fell into arrears of rent amounting Rs. 118/-. A notice demanding arrears of rent and terminating tenancy was issued on 6.8.1973, which the petitioner wilfully did not accept. Thereafter another notice demanding arrears of rent was sent on 13.11.1975 which was served upon the petitioner on 27.11.1975. The petitioner inspite of receiving the notice, neither paid the rent nor vacated the premises in his occupation. Till the time of filing suit a sum of Rs. 938/- became due but since the rent with effect from 1.7.1972 to 31.5.1973 became barred by limitation therefore the respondent No. 3 claimed only Rs. 720/- as arrears of rent. 4. The petitioner filed his written statement and stated that apart from the two kotharies, he was also tenant in respect of vacant land with tin-shed. It was also pleaded that the suit was bad for non-joiner of necessary parties. It was also said that the father of the petitioner was tenant on a monthly rent of Rs. 7.50/- only and the rent claimed by the landlord at the rate of Rs. 20/- per month was not correct. It was also said that inspite of repeated request, the rent receipt was not issued by the landlord. The notice dated 1.1.1973 was never served upon the petitioner. Another notice dated 18.11.1975 was also never served upon the petitioner, thus tenancy of the petitioner was not terminated. 20/- per month was not correct. It was also said that inspite of repeated request, the rent receipt was not issued by the landlord. The notice dated 1.1.1973 was never served upon the petitioner. Another notice dated 18.11.1975 was also never served upon the petitioner, thus tenancy of the petitioner was not terminated. It was also said that in the suit filed by the landlord, he obtained forged signatures of summons issued by the petitioner and also managed to get ex parte decree, which was set aside on this ground. 5. The landlord filed reply of the written statement denying the averments made in the written statement. The two kotharies in the tenancy of the petitioner were let out on monthly rent of Rs. 7.50/- per kothari and after enforcement of U.P. Act No. 13 of 1972, the rent was enhanced and the rent in respect of both the kotharies was increased to Rs. 20/- per month. A notice to this effect was also sent to the father of the petitioner. 6. The learned Judge Small Causes on the basis of pleadings of the parties framed 4 points of determination and recorded a finding that the respondents were the landlord and the petitioner was their tenants. It was also held that the notice dated 13.11.1975 was duly served upon the petitioner and the petitioner committed default in payment of rent. With these findings the suit was decreed. 7. The petitioner feeling aggrieved by the judgment and decree of the Small Causes Court, preferred SCC Revision No. 126 of 2001, which was also dismissed on 28.10.2006. 8. Shri Shesh Verma, learned counsel for the petitioner has submitted that the suit in respect of the part of the premises was not maintainable. It is an admitted fact that apart from two kotharies, Chabutara that tin-shed in front of two kotharies, was also in the tenancy of the petitioner. This fact has been admitted by the respondents in their examination before the court below. Thus the tenancy could not have been splitted by the landlord. No suit in respect of the Chabutara and the tin-shed was filed by the landlord and therefore the suit in respect of part of the premises was not maintainable. This fact has been admitted by the respondents in their examination before the court below. Thus the tenancy could not have been splitted by the landlord. No suit in respect of the Chabutara and the tin-shed was filed by the landlord and therefore the suit in respect of part of the premises was not maintainable. In support of his arguments, the learned counsel for the petitioner has relied upon a Supreme Court decision reported in 1988 AIR Supreme Court Page 1365, Mohan Singh v. Devi Charan. In this case the Hon'ble Supreme Court has held that the landlord cannot split the unity and integrity of the tenancy and recover possession of a part of the demised premises from the tenant. 9. It is next submitted by the learned counsel for the petitioner that no notice dated 13.11.1975 was served upon the petitioner but both the courts below recorded an erroneous finding that the notice was sufficiently served upon the petitioner. The petitioner has specifically denied his signatures on the acknowledgment card and as such it was the obligation of the landlord to have compared the same with the signature of the petitioner. It has also been argued that when on one occasion, it was found that the landlord obtained ex-parte decree on the basis of the forged signature of the petitioner on the summons, the courts below ought to have examined the signature on the acknowledgment card cautiously, because the landlord was in the habit of manipulating the signatures. It has also been argued by the learned counsel for the petitioner that the rate of rent in respect of tenanted accommodation was only Rs. 10/- per month and there was no evidence to the effect that the rent was ever enhanced to Rs. 20/- per month. The judgment and order passed by the courts below, are therefore erroneous and are liable to be set aside. 10. The learned counsel for the respondents landlord on the other hand argued, that so far as the finding with regard to rate of rent and service of notice is concerned, the same is based on appreciation of evidence and is finding of fact. This Court while exercising jurisdiction under Article 227 of the Constitution of India cannot re-appreciate the evidence and record contradictory finding of fact. This Court while exercising jurisdiction under Article 227 of the Constitution of India cannot re-appreciate the evidence and record contradictory finding of fact. It has also been argued that if the ex parte decree has been set aside on the ground that the signature on summons were not of the petitioner, it will not lead to the conclusion that even in the acknowledgment card the signature of the petitioner was forged. Mere denial by the tenant that the signature on the acknowledgment card were not his signature, is not sufficient. The courts below have appreciated the evidence and have come to the conclusion that the notice was sufficiently served upon the petitioner. The petitioner himself deposited the rent in the court at the rate of Rs. 20/- when he applied for setting aside the ex parte decree and there was also evidence to show that the rent was enhanced to Rs. 20/- per month, therefore, this finding being finding of fact, cannot be disturbed in writ jurisdiction. There is also a concurrent finding of both the courts that the petitioner committed default in payment of rent and was thus a defaulter. This finding is also based on appreciation of evidence. 11. So far as the question of split of tenancy is concerned, the argument of the learned counsel for the petitioner has no force because appertinent land or Chabutara in front of Kothari or room is a part of tenament. If it is said that a tenant is in the tenancy of a house, it is presumed that the tenanted portion includes not only the structure but also appertinent land necessary for the use of house. It is not the case of the petitioner that tin-shed was also let out to him along with kothari. It appears that in the tenancy of the petitioner, Chabutara was there upon which he raised tin-shed but it does not mean that it created a separate tenancy or was not concluded with two kotharies. The courts below have rightly come to the conclusion that the Chabutara with tin-shed was covered and was part of the tenancy alongwith two kotharies and there was no splitting of tenancy by the landlord. 12. In view of the discussions made herein above, I find no force in this writ petition. The writ petition is dismissed. The courts below have rightly come to the conclusion that the Chabutara with tin-shed was covered and was part of the tenancy alongwith two kotharies and there was no splitting of tenancy by the landlord. 12. In view of the discussions made herein above, I find no force in this writ petition. The writ petition is dismissed. However considering the fact that the petitioner has to vacate the premises in his tenancy sand is litigating since 1976, he is allowed three months time to vacate the premises and handover its possession to the landlord, failing which it will be open for the respondents-landlord to execute the decree in accordance with law. 13. Considering the facts and circumstances, the parties shall bear their own costs.