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MADAN MOHAN GOSWAMI versus VTH ADDL. DISTRICT JUDGE & OTHERS

High Court of Judicature at Allahabad

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Madan Mohan Goswami v. Vth Addl. District Judge & Others - WRIT - A No. 27670 of 1998 [2007] RD-AH 5217 (23 March 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 7/Reserved

Civil Misc. Writ Petition No. 27670 of 1998

Madan Mohan Goswami Vs. Fifth Additional District Judge, Mathura &

                                               Others

Hon'ble Prakash Krishna, J.

This is a landlord's petition. It arises out of SCC Suit No. 15 of 1987 filed by the petitioner against Sri Girraj @ Gir Prasad who died during the pendency of the suit leaving behind him the Respondents no. 2 to 6, for ejectment, recovery of arrears of rent of Rs. 360/- at the rate of Rs. 10/- per month and mesne profits on the allegation that he is the landlord of the premises no. 144/2, Mallapura, Mathura, Girraj  @ Gir Prasad was the tenant thereof on monthly rent of Rs. 10/- and has not paid the arrears of rent for more than three years inspite of notice of demand and termination of  tenancy. The said suit was contested by the defendant Girraj Prasad on the ground that there is no relationship of landlord and tenant between the parties. It was pleaded that he paid the rent earlier to the brother of the petitioner, namely, Deoki Nandan and thereafter to the plaintiff for some time under assumption that they are the Manager and looking after the disputed premises on behalf of Thakur Kishan Deo Ji Maharaj. According to the defendant, the property in question belongs to Thakur Kishan Deo Ji Maharaj. In the year 1975, when the defendant came to know that the affairs of Thakur Kishan Deo Ji Maharaj is being managed by Sri Krishna Janmsthan Purnodhar Samiti , therefore, he stopped paying rent to the plaintiff. Plea that the suit is not maintainable before the Court of Small Causes, as serious question of title is involved, was also raised.

The trial court by its judgment and decree dated 17-9-1970 decreed the suit for recovery of arrears of rent, damages and ejectment on the findings  that there was a relationship of landlord and tenant between the parties and the plaintiff is the owner and landlord of the disputed premises and that the defendant has failed to pay the rent to the plaintiff. The said decree has been set aside in Revision No. 232 of 1997 filed by the defendant-tenant under Section 25 of the Provincial Small Cause Courts Act by the impugned judgment and order dated 28-5-1998. An application to review the said order and judgment dated 28-5-1998 was filed before the court below which has been dismissed by the order dated 16-7-1998. Challenging the aforesaid two orders, the present writ petition has been filed.

The respondent-tenant had filed caveat through Sri Hirendra Bahadur Singh, Advocate in the above writ petition. The learned counsel for the respondent, after accepting the notice, failed to appear at the subsequent stages of the writ petition and failed to  file counter affidavit inspite of the time granted by the Court. The writ petition was heard on 19-2-2007 in absence of the counsel for the respondent, in the revised list.

The principal ground on which the revisional court reversed the decree of the trial court is that there was no relationship of landlord and tenant between the parties and, therefore, the defendant-respondent was not obliged to pay the rent to the plaintiff. The question thus  for consideration  in the writ petition is- as to whether the finding recorded by the revisional court on the question of relationship of landlord and tenant between the parties is sustainable or not.

The revisional court under point no. 1 rejected the contention of the defendant that an intricate question of title is involved and held that the plaint ,as such,  is not liable to be returned for presentation under Section 23 of the Provincial Small Cause Courts Act. Under point no. 2, it discussed the respective contentions of the parties on the question of relationship of landlord and tenant between the parties and reached to the conclusion vide paragraph-18 of the judgment that there is no such relationship between the parties and as such the suit is not maintainable. The question of relationship of landlord and tenant between the parties was an issue even before the trial court. The trial court decided the said issue in favour of the petitioner on the basis of the pleadings as well as oral and documentary evidence.

Although the existence of such relationship has been denied by the defendant in his written statement but he, in the same breath, has stated that he paid the rent at the rate of Rs. 10/- per month on the supposition that he is paying rent for Thakur Kishan Deo Ji Maharaj. The plaintiff has filed rent receipts (Exhibits no. 4,5 and 6). Photostat copies of the rent receipts have also been annexed with the writ petition. These rent receipts do show that the rent was being realised by the petitioner. The said rent receipts are admittedly counter signed by the defendant-tenant' Girraj. These rent receipts have not been denied in the deposition,  rather they have been admitted with an explanation that the rents were paid to the plaintiff under supposition that the property in dispute belongs to Thakur Kishan Deo Ji Maharaj. The trial court, taking into account these rent receipts, came to the conclusion that there was a relationship of landlord and tenant between the parties. However, the revisional court rejected these rent receipts primarily on the ground that in the column of  house number, ''1' has been mentioned therein and the failure of the plaintiff to examine handwriting expert to prove the signatures of the defendant on the rent receipts.

The revisional court  has failed to take into consideration the very admission of the defendant in the written statement stating that he had been paying rent to the plaintiff though under some confusion. Thus, the payment of rent to the plaintiff-petitioner was not even disputed by the defendant in the written statement.

The case of the defendant in this regard was that the property in question belongs to Thakur Kishan Deo Ji Maharaj. There is no iota of evidence on record to support the aforesaid plea. The defendant-tenant failed to produce any evidence, like- rent receipt, agreement of tenancy or other documents to show that the house in dispute belongs to Thakur Kishan Deo Ji Maharaj.

The revisional court misdirected himself and committed illegality in not taking into account the admission made by the defendant in the written statement. Thus, the judgment of the revisional court is vitiated on account of non-consideration of the relevant pleadings of the defendant in this regard. It was incumbent upon the revisional court to have taken into consideration the entire material, before reversing the judgment , which were taken into account by the trial court.

So far as mentioning of house no. as 1 in the rent receipt (Exhibits 4 to 6) is concerned, the same is to be considered in the light of the subsequent findings recorded by the revisional court itself in its judgment. The disputed property no. 144/2 was recorded in the name of Deoki Nandan, the brother of the petitioner. Deoki Nandan and Madan Mohan Goswami (the petitioner) are the sons of Rup Kishore Goswami. The defendant himself pleaded that he used to pay the rent to Deoki Nandan earlier and after his death paid rent to the plaintiff-petitioner. The revisional court found that house no. 144/2 was recorded in the municipal record in the name of Deoki Nandan s/o Rup Kishore. Subsequently, the said entry was scored off and the name of one Rajendra Prasad was recorded on account of some sale deed. The entry made in favour of Rajendra Prasad was subsequently scored off/cancelled and the name of Deoki Nandan was restored, as  noted by the revisional court vide para-17 of the judgment. Ownership of Deoki Nandan on the property in question has been found by the revisional court even with respect to the house no. 144/2.

It appears that the name of Rajendra Prasad was recorded in the municipal record. To correct the said entry, Original Suit No. 1972 of 1996 was filed by the present petitioner against Deoki Nandan and others for declaration that he may be declared as exclusive owner of house no. 144/2 and it may be declared that Rajendra Prasad is has no share in it. The said suit was decreed and copy of the said decree has been filed as Annexure-4A to the writ petition. Therefore, the subsequent observation made in para-18 of the judgment that the plaintiff has failed to prove that there was a relationship of landlord and tenant between the parties, is perverse.

The plea raised by the defendant-tenant that the property in dispute is not a part of house no. 144/2 but is a part of house no. 149, has not been rightly accepted in the absence of any material to support the said plea.

To sum up, in view of the rent receipts (Exhibits- 4 to 6) and the declaration given by the Civil Court, declaring the petitioner as owner of the house no. 144/2, coupled with the fact that the defendant himself has stated in the written statement that he has been paying rent to the plaintiff and earlier to his brother, Deoki Nandan in respect of the property in question, the finding recorded by the revisional court that there is no relationship of landlord and tenant between the parties being perverse cannot be sustained.

There is yet another aspect of the case. The court below was exercising revisional jurisdiction under Section 25 of the Provincial Small Cause Courts Act. Under the said provision, the extent of jurisdiction of revisional court is circumscribed and it does not entitle the revisional court to interfere with the finding of facts recorded by the trial court. The revisional court can exercise its jurisdiction under aforesaid section when there is an error of law. The said section is reproduced below:

"25. Revision of decrees and orders of Courts of Small Causes-

The District Judge, for the purpose of satisfying himself that a decree or order made in any case decided by a Court of Small Causes was according to law, may of his own motion, or on the application of an aggrieved party made within thirty days from the date of such decree or order, call for the case and pass such order with respect thereto as he thinks fit."

The finding recorded by the trial court on the question of relationship of landlord and tenant was basically a question of fact and was based on correct appreciation of evidence on record. The revisional court committed an error of law in  brushing    aside the findings of the trial court    and     re-

appreciating the evidence afresh. Thus the finding of the revisional court on the issue cannot be sustained and is liable to be set aside.

Now the question of default in payment of rent is the only question which survives. The trial court found that there was default in payment of rent and as such, the defendant-tenant was liable for eviction under Section 20(2)(a) of U.P. Act No. 13 of 1972. The revisional court, on the basis of its finding that there was no relationship of landlord and tenant between the parties, did not record its own finding. However, it is not necessary to restore back the case to the revisional court for the reason that it is admitted case of the defendant-tenant that he has not paid any rent to the plaintiff inspite of notice and termination of tenancy after 1975. In view of the stand taken by the defendant-tenant that he has not paid any rent as he was disputing the ownership and landlordship of the plaintiff-petitioner, the finding of default necessarily follows against the tenant respondent.

Viewed from any angle, the judgment and order of the court below cannot be sustained and the same is hereby set aside and the decree of the trial court is restored.

In the result, the writ petition succeeds and is allowed. No order as to costs as none appeared to oppose the writ petition.

One month's time is granted to the tenant-respondent to vacate the disputed accommodation, failing which the petitioner shall be entitled to put the decree in execution.

Dated:

ALS


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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