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2020 DIGILAW 887 (ALL)

Atul Kumar v. Suresh Chand Jain

2020-05-26

SARAL SRIVASTAVA

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Saral Srivastava, J. 1. Heard Sri Sumit Daga, learned counsel for the revisionists and Sri Brahma Kumar Tiwari, learned counsel for the respondent. 2. The revision-applicants (hereinafter referred to as 'applicants'), who are the defendant in S.C.C. Case No. 19 of 2006 instituted by respondent-plaintiff (hereinafter referred to as 'respondent'), has preferred the present revision challenging the judgment and decree dated 19.9.2011 passed by Judge, Small Causes Court/Additional District Judge, Court No. 8, Muzaffar Nagar decreeing the suit of the respondent for eviction against the applicants. 3. The facts, in brief, are that the respondent instituted the suit for eviction on the ground that the applicants are the tenant of a shop (hereinafter referred to as 'disputed shop') on the monthly rent of Rs. 750/- per month plus taxes. The disputed shop has been constructed in the year 1990, therefore, provisions of U.P. Act No. 13 of 1972 are not applicable. It is also stated that the applicants have not paid the rent since 1.1.2005 despite repeated demand made by the respondent to the applicants for payment of rent. Consequently, respondent sent registered notice dated 15.9.2006 to the applicants terminating the tenancy and for arrears of rent, which was served upon the applicants on 16.9.2006. Accordingly, the tenancy is terminated with effect from 15.10.2006 on expiry of one month period from the date of service of notice. 4. The suit was contested by the applicants by filing written statement contending inter-alia that the respondent is not the owner of the shop. It is averred that the father of the respondent Harish Chand Jain and his wife instituted Original Suit No. 227 of 1978 for partition in respect of Joint Hindu Property including House No. 128 Bhopa Road, South, Muzaffar Nagar (hereinafter referred to as 'property') in which the disputed shop exists. The aforesaid suit for partition was decreed on the basis of compromise. Harish Chand Jain, his wife and brother of respondent Ramesh Chand, Prem Chand and Brajesh Chand became the owner of the aforesaid property on the basis of compromise decree. It was further pleaded that the rent of the disputed shop was not paid to the respondent rather it was paid to Smt. Saroj Jain, sister of the respondent, at the rent of Rs. 750/- per month. It was further pleaded that the rent of the disputed shop was not paid to the respondent rather it was paid to Smt. Saroj Jain, sister of the respondent, at the rent of Rs. 750/- per month. It was the further case of the respondent that the respondent has already instituted Original Suit No. 48 of 2006 (Suresh Chand Vs. Prem Chan Jain) in which the question of ownership is yet to be adjudicated. 5. The respondent filed replication wherein he stated that the aforesaid property was purchased by the father of the respondent Harish Chand Jain and was not a joint family property. The decree passed in Original Suit No. 227 of 1978 has no bearing concerning the rights of the respondent in the aforesaid property. Harish Chand Jain, the father of the respondent, executed a will in favour of his wife Smt. Putli Devi on 11.4.1994, and after the death of his father, the mother of respondent bequeath the aforesaid property to the respondent by will dated 27.12.1996 (paper No. 27-ga). The mother of the respondent No. 1 died on 28.8.1999. It was further pleaded that Harish Chand and respondent filed Case No. 46 of 1995 before the Rent Control and Eviction Officer under U.P. Act No. 13 of 1972 in which Ramesh Chand, Prem Chand, Brajesh Chand and Smt. Saroj Jain filed an application, after the death of Harish Chand, wherein they admitted the execution of the will deed dated 11.4.1994 and also ownership of respondent with regard to the aforesaid property. Besides above, the details of several other cases have been referred to in the replication which had been instituted by the respondent wherein the ownership of respondent about the aforesaid property was admitted. 6. The Trial Court based on pleadings framed six issues. However, the counsel for the applicants has assailed the finding on the issue No. 1 regarding the relationship of landlord and tenant between the respondent and the applicant and the issue No. 2 regarding default in payment of rent. 7. 6. The Trial Court based on pleadings framed six issues. However, the counsel for the applicants has assailed the finding on the issue No. 1 regarding the relationship of landlord and tenant between the respondent and the applicant and the issue No. 2 regarding default in payment of rent. 7. The Trial Court while considering the issue No. 1 elaborately noticed shreds of evidence on record viz; the statement of DW-1 Atul Kumar (applicant No. 1), will dated 11.4.1994 executed by Harish Chand (father of the respondent) in favour of Smt. Putli Devi and will dated 27.12.1996 (paper No. 27-Ga) executed by Smt. Putli Devi in favour of respondent, the tax assessment report dated 4.1.2007 wherein the officer recommended for mutation of name of the respondent in the records of the Nagar Nigam based on the will dated 27.12.1996 (paper No. 27-Ga), record of S.C.C. Suit No. 20 of 1993 instituted by the respondent against Vinod Kumar and Pradip Kumar for eviction in which the application 21-Ga of applicant contending that the respondent was not the owner of the property was dismissed on 17.1.1998 and order dated 17.1.1998 passed by revision court affirming order dated 17.1.1998 on application 21-Ga. The trial court on consideration of aforesaid evidence held that the respondent is the owner of the shop and there exists a relationship of landlord and tenant between the respondent and the applicant. 8. In respect of issue No. 2, the Trial Court after appreciating various rent receipts filed by the applicants held the rent of the disputed shop to be Rs. 750/- per month. The trial Court held that the respondent has given plausible explanation justifying the circumstances in which rent receipts till 31.12.2003 was issued by Smt. Saroj Jain. The Trial Court also found the two counterfoils paper no. 27 and 28 filed with paper No. 75-Ga in respect of payment of rent, one for the period 1.1.2004 to 30.6.2004 and the other for the period from and 1.7.2004 to 31.12.2004, were genuine. It further held that as no receipt after the period 31.12.2004 was filed, therefore, the rent was paid till 31.12.2004, and no rent was paid thereafter. 9. It further held that as no receipt after the period 31.12.2004 was filed, therefore, the rent was paid till 31.12.2004, and no rent was paid thereafter. 9. Challenging the finding on the issue No. 1 counsel for the applicants has submitted that the evidence and material on record coupled with the testimony of respondent admitting that the rent till 31.12.2003 was paid to Smt. Saroj Jain established that the respondent was not the owner and landlord of the shop in dispute. Accordingly, he submits that the suit by the respondent was not maintainable. 10. On issue No. 2, he submits that the trial court has erroneously held that the counterfoils filed by the respondent with paper no. 125Ga and paper no. 75Ga are not fabricated and genuine. He further submits that finding of the trial court that no rent after 31.12.2004 has been paid is also illegal and against the record. 11. Per contra, learned counsel for the respondent submits that the Trial Court in deciding the two issues in favour of the respondent has elaborately considered the evidence filed by both the parties. He submits that the counsel for the applicants could not demonstrate that the finding on the aforesaid two issues are perverse or against the record, hence, finding on the two issues is finding of fact are not liable to be interfered with by this court in the exercise of its revision jurisdiction under Section 25 of the Provincial Small Causes Court Act, 1887. 12. I have considered the rival submissions of counsel for the parties and perused the record. 13. The court in deciding the issue of the relationship of landlord and tenant noticed that the respondent has claimed the title of the property based on the will dated 11.4.1994 and Smt. Saroj Jain is a signatory of the will dated 11.4.1994 as a witness whose signature on the will has not been denied by the applicants. It further noticed that based on will dated 11.4.1994, the name of the respondent has been recorded in the Nagar Nigam. Besides above, various litigation which had been contested in respect of the aforesaid property and shreds of evidence detailed above have also been noticed by the Trial Court while holding the respondent as the owner of the property. Accordingly, the trial court held that there is a relationship of landlord and tenant between the respondent and the applicants. Besides above, various litigation which had been contested in respect of the aforesaid property and shreds of evidence detailed above have also been noticed by the Trial Court while holding the respondent as the owner of the property. Accordingly, the trial court held that there is a relationship of landlord and tenant between the respondent and the applicants. The counsel for the applicants could not point out any perversity or misreading of evidence by the trial court in recording aforesaid finding. 14. As regards issue No. 2, the Trial Court on the basis of various receipts filed by the applicants held that the rent of disputed shop to be Rs. 750/- per month. 15. As the applicants disputed the signature of Atul Kumar on the counterfoils filed with paper no. 125 and counterfoils no. 28 & 28 filed with paper no. 75Ga, therefore, the respondent filed an expert report to prove that the counterfoils filed with paper no. 125GA and two counterfoils no. 27 & 28 filed with paper no. 75Ga bears the signature of Atul Kumar. The applicants also filed expert reports to prove that the counterfoils did not bear the signature of the Atul Kumar. The trial court disbelieved reports of both the expert as the expert report submitted by the respondent was in his favour whereas the expert report submitted by the applicants supported the case of the applicants. The trial court observed that the court can act as an expert to do justice. It appears that respondent claimed that receipt no. 2 filed with paper no. 54Ga by the applicants was in his writing, therefore, the trial Court compared the handwriting on receipt no. 2 filed with paper no. 54Ga with the handwriting on the counterfoil no. 27 & 28 filed with paper no. 75Ga by the respondent and found the writing on receipt no. 2 and counterfoil paper no. 27&28 are identical. The trial court, thereafter, proceeded to compare the details on receipts filed with paper no. 54Ga & 66Ga by the applicants with the details of corresponding counterfoils filed with paper No. 125Ga by the respondent and found that the receipts filed with paper no. 54Ga & 66Ga and corresponding counterfoils filed with paper no. 125Ga were similar. Accordingly, the trial court concluded that counterfoils bearing no. 27&28 filed with 75Ga are genuine and not fabricated counterfoils. 54Ga & 66Ga and corresponding counterfoils filed with paper no. 125Ga were similar. Accordingly, the trial court concluded that counterfoils bearing no. 27&28 filed with 75Ga are genuine and not fabricated counterfoils. Consequently, it held that the rent till 31.12.2004 has been paid, and subsequent thereto no rent has been paid. The counsel for the respondent could not point out any perversity in the aforesaid finding of the trial court. 16. It is lastly urged by the counsel for the applicant that the trial court has erred in shifting the burden upon the applicant to prove that the counterfoils did not bear the signature of Atul Kumar. The aforesaid submission is also misconceived for the reason that the trial court has not recorded any finding that the applicants failed to discharge their burden that the counterfoils did not bear the signature of Atul Kumar rather the trial court on analysis of the evidence on record held that the counterfoils are not fabricated and genuine. 17. In view of the above discussion, as the findings of the Court below on the issue Nos. 1 and 2 are finding of fact based upon proper appreciation of evidence and material on record, this Court does not find any merit in the submission of counsel for the applicants. 18. Consequently, the revision lacks merit and is accordingly, dismissed, with no order as to costs.