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Anil Kumar v. Ashok Raj And Others - WRIT - A No. - 16476 of 2003  RD-AH 17730 (14 November 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Civil Revision No.172 of 2002
Sri Anil Kumar Vs. Sri Ashok Raj & Ors.
Civil Misc. Writ Petition No.16476 of 2003
Sri Anil Kumar Vs. Sri Ashok Raj & Ors.
Civil Misc. Writ Petition No.14907 of 2005
Sri Anil Kumar Vs. Sri Ashok Raj & Ors.
Hon. Sunil Ambwani, J.
Heard Shri K.K. Arora, learned counsel for the petitioner-defendant and Shri Iqbal Ahmad for the respondents-plaintiffs.
The landlord filed two suits for arrears of rent and eviction after terminating the tenancy of the tenant. The first suit was in respect of first floor accommodation and the second in respect of shop on the ground floor. The suits were not consolidated as their valuation were different. The Suit No.16 of 1993 in respect of first floor accommodation was filed in the Court of District Judge as Judge, Small Cause Court. The Suit No.5 of 1993 in respect of shop on the ground floor was filed in the Court of Judge, Small Cause Court, Moradabad.
The petitioner set up a plea that initially the building was in dilapidated condition. There was a written agreement between him and the plaintiff on 13.8.1996 to invest a sum of Rs.1 lac and reconstruct the whole building with the first and second floor. According to the petitioner it was agreed that Rs.400/- per month would be adjusted towards the costs of construction i.e. Rs.1 lac and thereafter the amount will be paid as rent. The shop on the ground floor was taken on rent by the petitioner separately in the year 1990. The petitioner set up a plea that since the question of title is involved, the Judge, Small Cause Court would not have jurisdiction under Section 23 of the Provincial Small Causes Courts Act to decide the suit and that the matter may be referred to the regular side. Both the Courts framed preliminary issues as to whether the question of title is involved and that suit could be tried by the Judge, Small Cause Court. Both the Courts by their judgment dated 7.9.2002 passed by the Judge, Small Cause Court, Moradabad in Suit No.5 of 1993 and the judgment dated 7.3.2003 in S.C.C.R. No.15 of 2002 confirming the order of the trial Court as well as the judgment dated 23.3.2002 in Suit No.16 of 1993 have held that the alleged agreement was not produced either by the plaintiff or the defendant. It was admitted between the parties that the agreement was not registered and so there was no question of title involved with regard to construction of the first floor. At best the Courts had to consider, after the parties lead evidence, whether the amount of Rs.400/- was agreed to be adjusted towards costs of construction incurred by the petitioner, or it was rent to be paid by the petitioner to the plaintiff as landlord. The Ist Addl. District Judge, Moradabad in his judgment dated 7.3.2003 found:-
"The proceedings of the instant suit has not been stayed by the Hon'ble High Court. It is an admitted fact by the revisionist that the plaintiffs are the landlords and the owners of the disputed shop and the revisionist is the tenant. More over, the revisionist has also been depositing the rent in Misc. Case No.28 of 1993, Sunil Kumar Vs. Ashok Raj, in the Court of Munsif, Sambhal, u/s 13 (1) of U.P. Act No.13 of 1972. It is an admitted and not a denied fact that the plaintiffs are the landlords and the deft/ revisionist is the tenant. So far as the agreement is concerned, which has not been filed by the plaintiffs, that shall be considered during the trial of the suit. According to the agreement, the costs of the construction incurred by the revisionist had to be adjusted towards the rent. It has never been asserted by the revisionist that the agreement was a registered agreement. More over, any agreement does not create any right or title in itself. So far as the adjustment of the rent and its effect is concerned, that has to be decided while deciding the original suit. There is no question of title involved, in any way, in the instant suit. The trial Court has exercised its discretion in rejecting the application filed by the revisionist u/s 23 of Provincial Small Causes Courts Act. This discretion cannot be interfered with in this revision as I find that no question of title is involved in the suit. The revision is, therefore, devoid of merits and deserves dismissal."
The Writ Petition No.16476 of 2003 arises out of judgment in revision dated 7.3.2003 and the Writ Petition No.14907 of 2005 arises out of judgment dated 16.2.2005 in S.C.C. Revision No.11 of 2005. Civil Revision No.172 of 2002 arises out of order passed by the Ist Addl. District & Sessions Judge, Moradabad in SCC Suit No.16 of 1993 by which he had closed the evidence on the ground that the defendant did not appear and that there was no interim order, in the writ petition staying the proceedings of the suit. The Court then fixed the date for hearing on 2.4.2002. The proceedings of the suit were stayed by this Court.
Shri K.K. Arora, learned counsel for the petitioner would submit that under the agreement the petitioner became the owner of the first floor, and that until the total cost incurred by the petitioner in constructing the building is adjusted at the rate of Rs.400/- per month, he cannot be treated as tenant. There is a dispute with regard to title over the first floor accommodation and that the observations made by the Ist Addl. District Judge in his judgment dated 7.3.2003 that it is admitted and is not denied fact that the plaintiffs are landlord and defendant/revisionist is tenant, is a premature observation, which should not have been made against him. If the revisional Court was of the opinion, as it is stated in the same paragraph subsequently that the effects of agreement have to be seen after taking evidence, the observation was uncalled for, and would prejudice the petitioner in contesting the suit.
I do not find any factual or jurisdictional error in the impugned judgments. It was found by the Courts in the orders under challenge that there was no question of any right or title involved in the suit taking away the jurisdiction of the Judge, Small Cause Court to hear the matter. The original agreement or its copy was not produced by either of the parties. The terms of the agreement, if any, therefore, have to be ascertained only after the evidence is led by the parties. In either case the petitioner could not be the owner of the first floor accommodation as there is no document of transfer of title. Even if the agreement is established, at best it could be said at this stage that the defendant-petitioner was allowed to invest the amount in constructions, which was to be adjusted from Rs.400/- per month required to be paid by the defendant to the plaintiff. With regard to the shop on the ground floor, it was admitted that the tenancy was created at the rate of Rs.1000/- in the year 1990. There was no dispute with regard to title on the tenancy of the shop on the ground floor.
Section 8 of the Transfer of Property Act, 1882 provides that unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof. Such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth. In India unlike England the land is transferred along with constructions. The constructions are not transferred separately without the incidents including the land and all things attached to the earth. There is no such thing as transfer of the constructions of the first floor under the agreement and making persons, who contributed to the value of constructions of the building, the owner of the first floor.
The Courts below have not committed any error in finding that the agreement, if any, would not transfer the property to make the petitioner the owner of the first floor and permitting him to raise the issue of title in the suit.
The question whether the petitioner would be tenant of the first floor or will be entitled to continue in occupation until the amount spent is adjusted in the total cost of constructions, is still to be decided. For this purpose the parties have not led evidence in the suit.
The Writ Petition No.16476 of 2003 and Civil Revision No.172 of 2002 are consequently dismissed.
The Writ Petition No.14907 of 2005 arising out of order by which evidence in the suit was closed is allowed. It was not proper for the Court to close the evidence on the ground that there was no interim order in the writ petition. The parties will be allowed to lead evidence in both the suits, which shall be decided very expeditiously.
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