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2022 DIGILAW 1764 (ALL)

Siya Dulari (Since Deceased) v. Ram Dayal

2022-11-10

DINESH PATHAK

body2022
JUDGMENT : 1. Heard learned counsel for the parties at the admission stage. 2. Instant second appeal has been preferred on behalf of the defendants-appellants assailing the judgment and decree dated 29.10.2021 passed by VIIth Additional District Judge, Kanpur Dehat in civil appeal no. 20 of 2019 affirming the judgment and decree dated 11.03.2015 passed by the Additional Civil Judge (Senior Division) Court No. 1, Kanpur Dehat in Original Suit No. 345 of 1986, Ram Dayal (substituted by his legal heirs) vs. Smt. Siya Dulari and others. 3. Facts culled out from the record on board are that Ram Dayal (substituted by his legal heirs), plaintiff-respondent has filed a suit for eviction, possession and payment of arrears of rent against defendants-appellants alleging therein that the property in question was basically belonged to one Daya Krishna Paliwal, who had executed a registered sale deed dated 08.10.1963 in favour of Ram Dayal (plaintiff). After purchasing the property in question Ram Dayal has rented out southern portion of the house in question consist of one Kothari and one Dalan to one Bhura Nai (predecessor in the interest of defendants-appellants) at the monthly rent of Rs.5/- w.e.f. 01.01.1964. The tenancy was started from the first date of every English calendar month and completed on last date of English calendar month. Bhura Nai, who was also one of the witness of the sale deed, had died in the month of May, 1966 leaving behind him his widow (defendant-appellant no. 1), two sons and two daughters. The defendant no. 1/appellant no. 1 had continued to pay rent till July, 1966, however, since August, 1966 she had stopped paying rent. Thereafter, Ram Dayal had sent registered notice dated 29.10.1968 to the defendant for payment of arrears of rent and to vacate the portion of property in question which is in their possession. Notice was received by the defendant on 15.11.1968, however, neither she has vacated the premises in question nor paid the rent, as claimed by the plaintiff. 4. It is apposite to mention that initially plaintiff has filed a Small Causes Suit, being Case No. 356 of 1969 under the U.P. Urban Building (Regulation of Letting and Eviction) Act, 1972 (in brevity "Act, 1972"). 4. It is apposite to mention that initially plaintiff has filed a Small Causes Suit, being Case No. 356 of 1969 under the U.P. Urban Building (Regulation of Letting and Eviction) Act, 1972 (in brevity "Act, 1972"). During pendency of suit, after 14 years of its institution, defendants have moved an application (Paper No. 189-C) in the year 1983 under Section 23 of Provincial Small Causes Courts Act praying for return of plaint, as the suit involved intricated question of title. Against the said application plaintiff has filed an objection (Paper No. 191-C) opposing the application, however, vide order dated 19.09.1983, court of Munsif Hawali had allowed the application (Paper No. 189-C) and plaint was ordered to be returned to the plaintiff. After receiving the plaint copy, plaintiff has instituted civil suit before the court competent. The defendants-appellants have filed their written statement dated 20.08.1987 denying the right and title of the plaintiff over the property in question alleging therein that neither Daya Krishna Paliwal was the owner of the property in question nor Ram Dayal (plaintiff) was owner and in possession over there, and alleged sale deed dated 08.10.1963, said to have been executed by Daya Krishna Paliwal in favour of Ram Dayal, is a forged document. It is further averred in the written statement that Bhura Nai was never tenant of Ram Dayal in the disputed portion of the property in question rather he was owner and in possession over the property in question since last 35-40 years and continued till his death, thereafter, defendants-appellants came into the possession thereof being successors of Bhura Nai. An specific plea has been taken in written statement denying the relationship of tenant and landlord between the defendants-appellants and the plaintiff-respondents. Institution of suit has been assailed being barred of limitation from the date of notice dated 29.10.1969 inasmuch as suit was filed after 12 years of notice. 5. Having considered the pleadings made by the parties and the evidence on record, learned trial court has framed as many as ten issues in deciding the suit. Issue no. 1 with regard to the ownership of the plaintiff over the property in question and issue no. 2 with regard to the status of the defendants being a tenant have been decided in affirmative in favour of the plaintiff. Issue no. 5 with respect to the jurisdiction of the civil court and issue no. Issue no. 1 with regard to the ownership of the plaintiff over the property in question and issue no. 2 with regard to the status of the defendants being a tenant have been decided in affirmative in favour of the plaintiff. Issue no. 5 with respect to the jurisdiction of the civil court and issue no. 10 qua filing of the suit within the prescribed period of limitation have also been decided in affirmative in favour of the plaintiff. The first appellate court, on appeal being filed on behalf of the defendants-appellants, has formulated three points of determination with respect to the ownership of the plaintiff and his entitlement to get the suit property vacated and limitation to file a suit as pleaded by the defendant. The appeal filed on behalf of the defendants-appellants was dismissed affirming the judgment and decree passed by the trial court. Having been aggrieved against the concurrent judgments passed by the courts below, the defendants-appellants have preferred the instant second appeal. 6. While pressing the instant appeal, counsel for the appellants has placed two fold submissions; raising the questions qua maintainability of the suit filed on behalf of the plaintiff and incompetence of the suit being barred by limitation. Firstly, learned counsel for the appellants has raised question with respect to the maintainability of the suit on the ground that it should be filed under the Act, 1972 inasmuch as plaintiff-respondents have acknowledged the defendants-appellants as a tenant of the house in question. I did not find any force in this submission as advanced by the counsel for the appellants. In written statement defendants-appellants have taken an specific plea denying the relationship of tenant and landlord between the plaintiffs and defendants. Apart from that, defendants have raised intricated question of title over the property in question claiming their ownership and possession over there on the basis of long possession since 35-40 years. In deciding issue no. 1 and 2 the trial court has given a categorical finding in favour of the plaintiff acknowledging his right and title over the property in question on the basis of the registered sale deed dated 08.10.1963 executed by original owner of the property namely Daya Krishna Paliwal in his favour. Finding returned by the trial court in issue no. 1 and 2 has been affirmed by the first appellate court in deciding the point of determination no. 1. Finding returned by the trial court in issue no. 1 and 2 has been affirmed by the first appellate court in deciding the point of determination no. 1. In this view of the matter, the courts below have given a concurrent finding of fact acknowledging the right and title of the plaintiff over the property in question and status of the defendant as a tenant over there. 7. Now at this juncture, at the second appellate stage, appellants cannot be permitted to raise the question of fact which has already been concluded by the courts below or raise any plea which is adverse to the plea taken in the written statement. Counsel for the appellant cannot be permitted to submit a plea which has not been taken by the defendants in the written statement. Once the defendants have denied the relationship of landlord and tenant with the plaintiff in their written statement, at this juncture counsel for the appellant cannot be permitted to raise question of competence of suit and jurisdiction of the court on the basis of the relationship between the parties being tenant and landlord. 8. In support of his contention learned counsel for the appellant has made emphasis on the judgment of Hon'ble Supreme Court in the case of Subhash Chandra Gupta and others vs. M/s Bharat Petroleum Corporation Limited, reported in 2022 AIR (SC) 660. On the strength of the aforesaid judgment, learned counsel for the appellants has tried to submit that after the death of original tenant his successors would be treated as statutory tenant over the property in question. Therefore, suit would lie under the Act, 1972. Perusal of the aforesaid judgment evince that the facts and circumstances of the cited case is not applicable in the instant matter. In the cited case tenancy of the tenant was completed in terms of the agreement, therefore, the landlord has filed suit treating the possession of the tenant as unauthorized possession. Hon'ble High Court Court has treated the tenancy of the tenant as statutory tenancy and held that the suit will lie under the Rent Control Act. Hon'ble Supreme Court has affirmed the judgment passed by the High Court on the ground that even after expiry of the lease term of the lease deed, the respondent became statutory tenant and the jurisdiction of the civil court is impliedly barred. Hon'ble Supreme Court has affirmed the judgment passed by the High Court on the ground that even after expiry of the lease term of the lease deed, the respondent became statutory tenant and the jurisdiction of the civil court is impliedly barred. Facts of the case in hand is totally different, wherein relationship of the parties being tenant and landlord has been denied by the defendants-appellants who are claiming there ownership over the property in question, therefore, in the given circumstances, there is no question of occurrence of statutory tenancy after expiry of term of tenancy. There is no written document of lease between the parties ascertaining the period of limitation so that statutory tenancy could be acknowledged after expiry of the alleged lease term. 9. In deciding issue nos. 5 and 9 the trial court has given a categorical finding that the civil court has got inherent jurisdiction to entertain the suit for possession, eviction and payment of arrears of rent in the light of the pleadings as made by the parties. The trial court has also acknowledged the entitlement of the plaintiff for the arrears of rent which has not been paid by the defendants since August, 1966 despite receipt of registered notice. It is very astonishing and ridiculous that initially defendants have got the plaint returned under the Act, 1972 on the ground of intricated question of title of the property in question and denied the relationship of tenant and landlord between the parties. Now at this juncture, counsel for the appellant is trying to establish a relationship of parties being a tenant and landlord and is trying to submit something absurd that suit should have been filed before the small causes court inasmuch as civil court has got no jurisdiction to try the same. 10. So far as the second submission made by the counsel for the appellants with regard to the incompetence of the suit being barred by limitation is concerned, same is also unfounded on the strength of facts and circumstances of the present case and the law. 11. It is submitted by the counsel for the appellant that from the date of receiving of notice, suit has been filed at a very belated stage i.e. on 23.07.1985, therefore, suit having been filed beyond the prescribed period of limitation is liable to be rejected. 11. It is submitted by the counsel for the appellant that from the date of receiving of notice, suit has been filed at a very belated stage i.e. on 23.07.1985, therefore, suit having been filed beyond the prescribed period of limitation is liable to be rejected. Point raised by the counsel for the appellants with regard to the limitation has been discussed by the trial court in deciding issuing no. 10 in affirmative. Learned trial court has given a finding that the civil suit filed on behalf of the plaintiff after return of small causes court suit was in continuation of earlier suit, therefore, it cannot said to be filed beyond the period of prescribed limitation. In deciding the issue no. 10 trial court has given the benefit of Section 14 of Indian Limitation Act to the plaintiff. The appellate court in deciding the point of determination no. 3 has affirmed the finding of the trial court over issue no. 10 and treated the Original Suit No. 345 of 1986 to be instituted within the prescribed period of limitation. Learned courts below have considered the scope of Section 14 of Indian Limitation Act and extended its benefit to the plaintiff in instituting the suit for possession, eviction and arrears of rent. 12. Having considered the submissions advanced by the counsel for the parties and perusal of record, it is abundantly clear that SCC suit filed on behalf of the plaintiff was returned owing to the objection raised on behalf of the defendants-tenant questioning the right and title of the plaintiff/landlord over the property in question. Application No. 189-C moved under Section 23 of Provincial Small Causes Court Act has been allowed and the plaint was returned to the plaintiff to institute before the court competent on the availability of alternative remedy. In pursuance of the order passed by the small causes court, the plaintiff/landlord has instituted the suit before the civil court. As per submission made by the counsel for the appellants, plaint was returned to the plaintiff on 20.07.1985 thereafter fresh civil suit was instituted on 23.07.1985 before the civil court having competent jurisdiction. 13. In pursuance of the order passed by the small causes court, the plaintiff/landlord has instituted the suit before the civil court. As per submission made by the counsel for the appellants, plaint was returned to the plaintiff on 20.07.1985 thereafter fresh civil suit was instituted on 23.07.1985 before the civil court having competent jurisdiction. 13. In this backdrop of development of the case, it is abundantly clear that the plaintiff/ landlord was bonafidely prosecuting the remedy before the small causes court in good faith and due diligence, however, on objection being raised on behalf of the defendants, the plaintiff/ landlord had immediately instituted the civil suit after receipt of the plaint. 14. Even otherwise it is not a case of adverse possession, therefore, I am of the considered opinion that law of limitation will not be applicable in filing a civil suit for eviction and possession. Once the relationship between the parties being a tenant and landlord has been denied by the defendants, who are claiming their ownership over the property in question and denied the right and title of the plaintiffs over the property in question, period of limitation as applicable for instituting a suit under the Act, 1972 is not applicable. There is no plea of the defendants that their possession is adverse possession over the property in question and after prescribed period of limitation i.e. more than 12 years they perfected their right over there, thus, they cannot take a plea with regard to the incompetence of the suit on the ground of limitation being filed after prescribed period of limitation. 15. Perusal of pleading inferred the intricated question of title between the parties, for which particular period of limitation is not prescribed in the law. On the basis of the pleading made by the parties, once the matter has been acknowledged as a private dispute between two persons with respect to the intricated question of title over the property in dispute, the question of limitation for filing a suit for eviction, possession and arrears of rent under the Act,1972 goes and the case would be adjudicated upon by the civil court. 16. In assailing the impugned judgment and decree passed by the courts below, learned counsel for the appellants has failed to make out any substantial question of law to be considered by this Court in entertaining the instant second appeal. 16. In assailing the impugned judgment and decree passed by the courts below, learned counsel for the appellants has failed to make out any substantial question of law to be considered by this Court in entertaining the instant second appeal. Both the points, discussed above, as raised by the counsel for the appellants has been concluded by the concurrent findings of fact returned by courts below after considering the facts and circumstances of the present case. There is no justification to entertain the instant second appeal on the concurrent finding of fact returned by the courts below acknowledging the right and title of the plaintiff-respondents over the property in question and the status of the defendant-appellant as a tenant over there. Claim of defendants being an owner of the property in question and justifying their possession on the basis thereof has concurrently been discarded by both the courts below after going through the pleadings and the evidence (documentary as well as oral) on the record. 17. I found no force in the submission as advanced by the counsel for the appellants in assailing the impugned judgments and decree passed by the courts below. It is very unfortunate that the owner/ landlord of the property in question is running from pillar to post since 1969 to get his property vacated from the illegal encroachment made by the defendants, however, till now he is being involved in protraction of litigation from one court to another court. 18. In this conspectus, as above, I did not find any justifiable ground to entertain the instant second appeal against the judgment and decree passed by the courts below. No substantial question of law is made out to interfere in the concurrent finding of facts returned by the courts below. 19. Resultantly, instant second appeal, being misconceived and devoid of merits, is dismissed with no order as to costs.