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TULSI DAS versus IXTH A.D.J.

High Court of Judicature at Allahabad

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Tulsi Das v. Ixth A.D.J. - WRIT - A No. 24211 of 1988 [2006] RD-AH 10535 (26 May 2006)

 

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

Judgment Reserved on 10.4.2006

Judgment Delivered on 26.5.2006

(Reserved)

Civil Misc. Clarification/Modification Application No. 36110 of 2006

In

Civil Misc. Writ Petition No. 24211 of 1988

Tulsi Das Versus IX Additional District Judge, Varanasi and others

(Decided/ Dismissed on 4.1.2006)

Hon'ble S.U.Khan J

Heard learned counsel for the parties.

Even though through judgment and order dated 4.1.2006 writ petition has been dismissed still respondents of the writ petition have filed this clarification / modification application on the ground that they are aggrieved by the finding of relationship of landlord and tenant given in the said judgment.

Petitioner Tulsi Das had filed suit for eviction against his brother Lakshmi Narain (Lakshmi Narain respondent No.3 in the writ petition died during pendency of writ petition and was substituted by applicants of this application). Suit was decreed by JSCC. Against the said judgment and decree Lakshmi Narain filed revision, which was allowed by A.D.J Varanasi. The revisional court held that Lakshmi Narain was tenant of Tulsi Das but rate of rent was Rs. 6.50/- per month and as tenant Lakshmi Narain had deposited the entire rent under section 30 of U.P Act No.13 of 1972 hence he was not liable to eviction. Applicants are also aggrieved by the finding of the revisional court to the effect that Lakshmi Narain was tenant of Tulsi Das. According to the learned counsel for the applicants this finding is likely to affect their defence adversely in the pending release proceedings (at the appellate stage) which have been initiated by Tulsi Das against Lakshmi Narain (substituted by applicants after his death) on the ground of bonafide need under section 21 of U.P Act No. 13 of 1972. According to the learned counsel in view of the judgment of this court dated 4.1.2006, prescribed authority or appellate court is bound to hold that Lakshmi Narain was tenant of Tulsi Das while in the said proceedings applicants are asserting that Lakshmi Narain was not the tenant of Tulsi Das.

Cause shown for non-appearance on the date on which writ petition was dismissed is sufficient.

It is correct that a respondent in appeal, revision or writ petition can challenge the correctness of findings recorded against him in the judgment under challenge by virtue of principles of Order 41 Rule 33 C.P.C. However I do not see any reason to differ with the finding of the revisional court in respect of landlord and tenant relationship. Lakshmi Narain in his written statement admitted that he sent the rent to Tulsi Das through money order and also paid the rent to him directly but without any receipt. Even though he clarified in the said statement and asserted that he had paid the rent to Tulsi Das on behalf of the original landlord however it was not found correct by the revisional court. Lakshmi Narain also deposited the rent under section 30 of U.P Act No. 13 of 1972. In the said case he impleaded only Tulsi Das as opposite party. This clearly amounted to his admission. Revisional court mainly placed reliance upon this deposit in holding that Lakshmi Narain was tenant of Tulsi Das. This finding is absolutely correct. In any case the original landlord never claimed any rent from Lakshmi Narain or asserted his right in any other manner after execution of the sale deed in favour of Tulsi Das by him. If the contention of Lakshmi Narain (and after his death of his legal representatives) that the portion in his occupation was not sold by the original owner landlord to Tulsi Das is accepted then he or they will become tenants without any landlord for the reason that original landlord is not claiming any title or right in the property in dispute. In this regard following observation of the Supreme Court reported in P.K.Gupta Versus R.Nagdeo AIR 1999 SC 1823 (para 2) is quite relevant. Para 2 is quoted below:-

Para 2: "The enviable position to which the tenant of a shop building has ensconced himself as corollary to the judgment of the High Court (under appeal now) is that he need not thenceforth be accountable to any landlord. On the one side when the claim of appellant to be the landlord has been discountenanced by the High Court, at the other side the person whom the tenant proclaimed as his landlord has disclaimed the credential. If the judgment of the High Court remains in force the tenant stands elevated virtually to the status of owner of the suit building."

Alongwith modification application copy of the sale deed dated 28.7.1977, through which property was sold by the original owner to Tulsi Das has been annexed. From perusal of the sale deed, it is quite clear that entire property in tenancy occupation of father of Tulsi Das and Lakshmi Narain was sold which itself was part of a big house  bearing No. 2/63.  In the sale deed it was mentioned that details of the property sold were given at the bottom of the sale deed. The boundaries given in the sale deed are as follows: -

East:  remaining part of house No.2/63 which is in   occupation of Jain Sahab.

West:   Road

North: House No. B-2/63-A, which is in occupation of Maharaj Krishna

South: Shop B- 2/63 of Owner.

From the boundaries, it is quite clear that the portion in occupation of Lakshmi Narain was also sold other wise in the boundaries it would have been shown. In the sale deed, it is also mentioned that monthly income from the house in dispute could be Rs. 13/- per month. Admittedly Rs. 13/- per month was the rent, which was paid by the father of Tulsi Das and Lakshmi Narain for the entire tenanted house. Learned counsel for the applicants has vehemently argued that in the sale deed it is mentioned that the portion, which is being sold, is in tenancy occupation of Tulsi Das hence only that portion was sold which was in tenancy occupation of Tulsi Das. After the death of original tenant, both of his sons i.e. Tulsi Das and Lakshmi Narain inherited the tenancy jointly. If by mutual agreement / arrangement they started residing separately it could not have the effect of splitting the tenancy. They remained joint tenants and jointly responsible for every liability of the tenant. It was merely a manner of description that Tulsi Das was described to be the tenant and name of Lakshmi Narain was not mentioned in the sale deed. In case of joint tenants, every tenant represents the other. From the boundaries mentioned in the sale deed and the rental value mentioned therein it is quite clear that the whole house which was in tenancy occupation of father of Tulsi Das and Lakshmi Narain was sold. This fact is further strengthened by the fact that after the sale deed original owner landlord did not assert any right even with regard to the portion which was in actual occupation of Lakshmi Narain. The admission of Lakshmi Narain that he paid rent to the Tulsi Das and deposit of rent by him under section 30 showing Tulsi Das to be the landlord completely clinched the issue.

Accordingly I fully approve the finding of the revisional court that by virtue of the sale deed of July 1977 Tulsi Das became the owner of the entire house including the portion in occupation of Lakshmi Narain and his legal representatives after his death.

The other point raised by the tenant in the modification application is that the enhancement of rent to Rs.200/- is excessive. I hold exactly otherwise. The said rent is fairly on the lower side. I fixed such a small rent only on the ground that both Tulsi Das and Lakshmi Narain were real brothers.

Accordingly there is absolutely no need to modify or clarify my judgment dated 4.1.2006.

This clarification/ modification application is therefore dismissed.

Waqar

26.5.2006


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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