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Z.A. KHAN versus S.J

High Court of Judicature at Allahabad

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Z.A. Khan v. S.J - WRIT - A No. 39331 of 1993 [2007] RD-AH 5914 (2 April 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 7

Civil Misc. Writ Petition No. 39331 of 1993

Zahiruddin Ahmad Khan Vs. Special Judge (Economic Offices)/Additional

                                               District Judge, Allahabad and another

Hon'ble Prakash Krishna, J.

The petitioner is a tenant of building no.138, Daraganj, Allahabad of which the respondent no. 3 is the landlord. SCC Suit No. 164 of 1977 was filed by the respondent no. 3, hereinafter called  'the landlord'  for recovery of arrears of rent from northern portion of House No. 138, Baski Kalan, Daraganj comprising of three rooms on the ground floor and one room on the first floor along with latrine, kitchen and verandah, etc. on the ground that the petitioner-tenant is in arrears of rent from 9-9-1975 to 25-3-1977 to the tune of Rs. 648.62 paise and the provisions of U.P. Act No. 13 of 1972 do not apply to the property in dispute as it is a new construction and is exempted under Section 2(2) of the Act. The said suit was contested by denying the fact that the building in question is a new construction. The case of the petitioner was that the provisions of U.P. Act No. 13 of 1972 are applicable to the building in question.

The respondent-landlord filed certain municipal extracts to show that the building in question was first assessed by the Municipal Authorities in the year 1971 and the suit having been filed within the period of 10 years therefrom, is exempted from the operation of U.P. Act No. 13 of 1972. The suit was earlier decreed by the courts below and the matter reached to this Court in writ petition no. 3810 of 1980, at the instance of the present petitioner. This Court came to the conclusion that the municipal extracts filed by the respondent-landlord is prima facie in respect of other part of construction of building no. 138, Baski Kalan, Daraganj. The said writ petition filed by the present petitioner was allowed by this Court vide order dated 23-4-1983 and the matter was restored back to Judge, Small Causes  Court  to record its findings as to whether the copy of the first assessment filed by the landlord relates to the property in question or not. This Court was of the view that this is a crucial question for determination in the suit and the petitioner having not been in a position to obtain certified copy of the assessment records, he rightly applied before the Judge, Small Causes Court to summon the relevant document from the Municipal Board. The Court further observed that the application filed by the petitioner to summon the municipal record was wrongly rejected by the Judge, Small Causes   Court   and directed that the Judge, Small Causes Court will  reconsider the application made by the petitioner in this behalf and pass fresh orders thereon  for summoning the relevant record so that justice may be done between the parties.

After remand by this Court, the matter was reconsidered by the trial court in the light of the observations made in the judgment of the High Court  and the trial court reached to a definite conclusion that the assessment records relied upon by the respondent-landlord do not relate to the property in question. However, it proceeded further to determine the date of the construction of the disputed accommodation on the basis of the oral evidence produced by the parties. The trial court ultimately reached to the conclusion that the building in question was earlier occupied by Moti Ahmad before the petitioner, therefore, the provisions of U.P. Act No. 13 of 1972 are applicable  and consequently it dismissed the suit. The matter was carried forward by filing SCC Revision No. 542 of 1985. The revisional  court although confirmed the findings recorded by the trial court that the assessment records relied upon by the respondent-landlord do not relate to the property in question, but it recorded a further finding that the petitioner was the first tenant who occupied the disputed premises admittedly in the month of August 1971 and the suit having been filed within the period of 10 years therefrom, the building in dispute is exempted from the operation of U.P. Act No. 13 of 1972, by the impugned judgment and order dated 21-9-1993. Hence the present writ petition at the instance of the tenant.

Sri M.K. Gupta, learned counsel for the petitioner submits that it having been found that the landlord has failed to establish that the assessment records relied upon by him do relate to the disputed accommodation, the revisional court committed illegality in deciding the revision on the ground that the petitioner was the first occupant of the disputed accommodation  and, as such, the inference drawn by the revisional court that the building in question was constructed in the month of August, 1971 is vitiated. Elaborating the argument, it was submitted that it was not open for the revisional court to re-appreciate the evidence with regard to the date of first occupation of the building in question as it was not even pleaded by the plaintiff and the revisional court travelled beyond the pleadings of the parties. In response, Sri M. Islam, learned counsel for the respondent -landlord submits that the findings recorded by the revisional court are findings of fact and are based on relevant consideration and, therefore, no interference is called for. He also submits that looking to the extent of the tenanted accommodation,  if this Court is inclined to grant relief to the petitioner, it should enhance the rent to a reasonable limit to adjust the equities between the parties. The market price of immovable properties have sky rocked.

I have given careful consideration to the respective submissions of the learned counsel for the parties. In para-2 of the plaint, only this much has been stated that the house in question is a new construction of  the year 1970-71 and as such, it does not come within the ambit of U.P. Act No. 13 of 1972.  It may be recalled that the suit was filed in the year 1977. U.P. Act No. 13 of 1972, at the relevant point of time, provided 10 years' exemption to the building from the operation of the provisions of U.P.Act No. 13 of 1972 from the date of construction. Section 2(2) of the said Act provides the manner of determination of the date of construction of a building for the purpose of calculating the period of 10 years. It provides four criterion for determination of date of construction of a building. In a case where the building is subjected to municipal assessment, the date of first assessment is the relevant date. In the absence of any material regarding the date of first assessment and inapplicability of other criterion as per the Section 2(2) of the Act, the date of first occupation of the building is the starting point for the calculation of 10 years' exemption period.

In the case on hand, it is not in dispute that the petitioner came in occupation of the disputed accommodation in August 1971. The trial court, after recording its finding that the landlord has failed to produce the first assessment of the building in question, it proceeded to determine the age of the building with reference to the date of first occupation of the same. On  analysis  of the respective evidence of the parties, the trial court reached to the conclusion on the basis of the oral evidence as well as the extract of the voters' list (Exhibit A-1), wherein the name of  Moti Ahmad is recorded, that  Moti Ahmad was the first occupant of the building in question and as such, it agreed with the tenant-petitioner that the building in question was more than 25 years old on the date of filing of the suit. This part of the finding has been reversed by the revisional court. The revisional court proceeded to decide the issue of date of first occupation of the building in question by placing the entire burden upon the tenant-petitioner to prove that Moti Ahmad was the first occupant.

The learned counsel for the petitioner rightly pointed out that while reversing the findings, as recorded by the trial court,  the revisional court has not taken into account the statement of the defendant's witnesses which were believed and relied upon by the trial court to hold that the building in question was an old construction. It may be noted that the revisional court has confirmed the finding of the trial court to the effect that the plaintiff-landlord has failed to produce the first municipal assessment of the building in question.

The burden lay upon the landlord who claims exemption from the operation of U.P. Act No. 13 of 1972 to prove that the building in question is a new construction as held by the Apex Court in Ram Saroop Rai Vs. Smt. Lilavati 1980 (6) ALR 359 (SC).

Apart from the above, the revisional court has decided the revision as if it was exercising appellate jurisdiction. Under Section 25 of the Provisional Small Cause Courts Act, the jurisdiction of the revisional court is not so extensive or wide as that of the appellate court under Section 96 of CPC. A revision , under Section 25 of the Provincial Small Cause Courts act, can be entertained only on the ground when the judgment and order of the trial court is contrary to law.  It follows that the revisional court is not entitled to re-appreciate the oral evidence to reach to a different conclusion than the one reached by the trial court. It may be noted here that the revisional court,  while  reversing the findings of the trial court, has not reached to the conclusion that the trial court committed legal error in relying upon the statement of the petitioner's witnesses. The revisional court exceeded in its jurisdiction in coming to the conclusion that the petitioner-tenant was the first occupant of the building  in question. Whether the petitioner-tenant was the first occupant of the building in question or it was earlier occupied by another person was decided by the trial court on the basis of the oral evidence produced by the respective parties. Unless a finding is recorded that there was some legal error in appreciation of oral evidence of a witness, it was not open to the revisional court to reach to a different conclusion after re-appreciating the evidence.

It is also relevant to state here that earlier the case set up by the plaintiff-landlord was that the building in question was assessed for the first time in the year 1971. He having failed  to establish, as concurrently found by both the courts below, it was not open to him to set up a new case that the defendant was the first occupant of the building in question.

In view of the above discussion, the judgment and order of the revisional court cannot be sustained.

Before parting with the case, it is necessary to consider the other argument advanced by the learned counsel for the respondent-landlord. He submitted that the building in question consists of three rooms on the ground floor and one room on the first floor situate in Daraganj locality which is a thickly populated locality and looking to the present market value of such immovable property and taking into consideration that the prices of immovable property have sky rocked, it would be equitable to enhance the rent upto Rs. 4,000/-, learned counsel for the parties were heard on the question of fixation of reasonable rent.

After hearing the learned counsel for the parties and taking into consideration the extent of accommodation as also the locality, I find that it would be appropriate that the petitioner be directed to pay rent w.e.f. April 2007 onwards during the continuance of his tenancy at the rate of Rs. 2,500/- per month to the landlord. Sri M.K. Gupta, learned counsel for the petitioner-tenant very fairly accepted the suggestion of the Court in this regard.

In view of the above, the writ petition succeeds and is allowed. The impugned order is hereby set aside with direction that the petitioner will pay rent at the rate of Rs. 2,500/- w.e.f. April 2007 during the continuance of his tenancy.

No order as to costs.

Dated:2-4-2007

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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