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RAM BHAROSE versus VTH A.D.J. KANPUR NAGAR & OTHERS

High Court of Judicature at Allahabad

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Ram Bharose v. Vth A.D.J. Kanpur Nagar & Others - WRIT - A No. 8681 of 2001 [2006] RD-AH 12575 (31 July 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

Hon'ble Rakesh Tiwari, J

The facts that are culled out are that the petitioner claims himself to be in possession of only one room and a kitchen on the second floor ofthe disputed house no. 28/127 SirkiMahal, Kanpur Nagar on a monthly rent of Rs.29.22P for the last above 40 years.

The house, in dispute, is said to be owned by late Smt. Shyama Devi w/o Sri Lal Behari, who died on 5.1.1978.  The testator late Smt. Shyama Devi executed a registered will and bequeathed the property, in dispute, in favour of her three grandsons, namely, S/Sri Satya Narain, Gana Narain and Prem Narain,  The disputed premises of which the petitioner is tenant, fell in the share of Sri Prem Narain- respondent no. 3, as claimed by him.

A notice dated 22.3.1993 was sent by Sri Prem Narain, respondent no. 3 alleging himself to be the landlord and terminating the tenancy of the petitioner on the ground that rent was due w.e.f.1.8.1978. The notice was replied by the petitioner vide reply dated 12.4.1993 denying the allegations made therein, inter alia, stating that Sri Prem Narain was not the sole landlord as no notice or information regarding the partition of the house was given to him and that earlier, on refusal of rent, it was deposited in the Munsifi in case no. 1032 of 1970 from 1978 to31.12.1992.

Sri Prem Narain- respondent no. 3 filed J.S.C.C. Suit no. 263 of 1993 against the petitioner on the ground that since the rent was due from 1.8.1978 and his title as landlord was challenged, as such, the tenant was liable to be evicted.  

In his reply, the petitioner stated in his written statement that Sri Prem Narain, respondent no. 3 himself had claimed himself to be a co-owner and as no date of partition or family settlement was informed to the petitioner, there was no denial of title of respondent no. 3.

On receipt of reply, Sri Prem Narain- respondent no. 3 moved an amendment application on 29.10.1993 for amending the plaint by taking advantage of Section 20(2)(f) of the U.P. Urban Buildings (Regulation of Letting, Rent and Evicytion) Act,1972 (hereinafter referred to as ''the Act').  

The petitioner also filed additional statement on 2.4.1994 wherein he specifically stated that he had never denied the co-ownership of Sri Prem Narain- respondent no. 3, as such, question of waiver or re-entry did not arise.

From the records it appears that the case set up by the petitioner was that he used to deposit the rent, accepted by the heirs of landlady Smt. Shyama Devi, i.e. the grandsons- S/Sri Satya Narain, Ganga Narain and Prem Narain ever since 1968. In the month of October 1978 when the landlady and her heirs refused to accept the rent, he started to deposit the same under Section 30(1) of the Act before the Court of Munsif City, Kanpur Nagar in case no. 1032 of 1978.  The respondent no. 3 too was a party to the said litigation.

It was also stated that the aforesaid case was contested by  respondent no. 3 but his objection was rejected by the court below. However, respondent no. 3 was permitted to withdraw the amount of rent deposited by the petitioner vide order dated 23.3.1979. Since then the petitioner had been depositing rent in case no. 1032 of 1970 an d he continued to deposit the same till 31.12.1992.

The contention of counsel for the petitioner is that it is well settled principle of law that the deposit under Section 30(1) of the Act will be taken into consideration for determination of the fact as to whether full amount has been deposited in compliance of Section 20(4) of the Act or not. Reliance in support of this contention has been placed on a decision in Chokha Mal V. Ram Authar and others- 1982 ARC -212. It is also urged that in his cross examination, the respondent no. 3 did not prove the existence of will said to have been executed by late Smt. Shyama Devi and it was, for the fist time, in his notice dated 22.3.1993 that respondent no. 3 disclosed that  partition had taken place  without disclosing its actual date.  

Counsel for the petitioner vehemently contended that the principle of forfeiture on disclaimer is founded on the rule that a man cannot approbate and reprobate at the same time. Since the consequence of applying the rule is very serious, it must be held that the denial has to be clear and in unequivocal terms. In support of this contention, he relied on a decision in Kundan Mal V. Guru Datta- A.L.R.1989(15)-367.

It was lastly submitted by counsel for the petitioner that the judgment of revisional Court suffers from error apparent on the face of record as the revisional Court has rendered the judgment after perusal of evidence on record, which is not permissible under the provisions of Section 25 of the Provincial Small Causes Court Act and that while dismissing the revision of the petitioner, the revisional court had erroneously held that the petitioner has denied the title of respondent no. 3 whereas, as a matter of fact, there is not an iota of averment to this effect either in the written statement or in any other document filed by the petitioner.

Counsel for the petitioner relied upon the decisions of Hon'ble the Apex Court in C. Chandramohan V. Sengottaiyar (dead) by L.R and others 2000 All.C.J- 824;  Sheela and others V. firm Prahlad Rai Prem Prakashs A.I.R 2000 -1264; and the deicions of this Court in Abdul Sattar Khan and anothers V.District Judge, Shahjahanpur and others  1996 A.W.C-1304; Jagdish Prasad Gupta V. Smt. Kanti Devi and others 1981 A.R.C.-327; S.L.Chibbar V.Special Judge (E.C. Act) and others..1988JA.W.C-969; and Rajendra Kumar Sharma V. IInd A.D.J. Moradabad ad others- 2006(1)  A.W.C-389.

Counsel for the respondent no. 3 submits that the petitioner-tenant committed default in payment of rent to the actual owner of the disputed property, as such, eviction order has rightly been passed and no interference in writ jurisdiction is warranted. It is urged that in spite of repeated demands, the petitioner failed to pay the rent to the landlord respondent no. 3 though as a matter of fact, he  had full knowledge about the will and ownership of respondent no. 3 of the tenanted accommodation of the petitioner.  The counsel for the respondents further drew the attention of the Court to the various annexures filed in the writ petition to establish execution of will by late Smt. Shyama Devi from which it is crystal clear that the petitioner was tenant of respondent no. 3.  He also drew the attention of the Court to the statement of the petitioner as D.W. 1 and that of Tribhuwan, his son, as D.W. 2 as well as the will dated 30.3.1978, which are contained in Annexures C.A. 1 to C.A.3 to the Counter Affidavit. He urged that the rent was deliberately deposited by the petitioner in the wrong name knowingly and being fully aware of the fact that he was tenant of respondent no. 3.  It is stated that if there was any doubt about the ownership of tenanted portion of the disputed accommodation, the petitioner ought to have deposited the rent under Section 30(2) of the Act and not under Section 30(1) of the Act.  Moreover, on receipt of notice dated 23.3.1993, the petitioner ought to have offered the rent personally to the respondent no. 3 and ought not have deposited the rent in the joint names of respondent no. 3 and his brothers. He urged that deposit of rent in joint names of other non-landlords was willful and it amounts to denial of sole title as landlord as such, the courts below have rightly dealt with the issue and recorded a specific finding of fact in this regard against the petitioner.

The counsel for the respondents then submits that after the death of Smt. Shyama Devi, rent, for the first time was paid by the petitioner and rent receipt no. 9/PN/III dated 1.8.1978 was issued by the respondent no. 3; that it is evident from this rent receipt that the division of house no. 28/127 SirkiMahal, Kanpur Nagar had been made on the basis of will which was well within the knowledge of the petitioner.  Apart from this, he urged that the petitioner had sent money order for an amount of Rs.87/- only in the single name of respondent no. 3 which clearly establishes the fact that he knew that Sri Prem Narain Jaiswal-respondent no. 3 was the only landlord of the tenanted portion of the petitioner, i.e. the accommodation of one room and one kitchen on the second floor of the disputed house no. 28/127 SirkiMahal, Kanpur Nagar.

It is also urged that as the rent was deposited under Section 30(1) of the Act in the joint names, hence it could not be withdrawn by a single person, particularlywhen Sri Satya Narain Jaiswal had expired in 1989 who was one of the opposite parties in Case No. 1032/70/78. Thus, willful  deposit of rent made in favour of a dead person could not be said to be a legal deposit and hence, the courts below rightly came to the conclusion that the deposit was not in accordance with law and passed the order of eviction against the petitioner. He urged that only legal deposits can be taken into consideration under Section 20(4) of the Act.

It was also asserted that certified copies of the will had been filed before the trial court which had never been challenged by the petitioner and were duly proved by P.W. 1 to P.W. 3.  Moreover, the petitioner and his son- Teribhuwan had accepted the division of the disputed house by recording their statements that late Sri Satya Narain, Sri Ganga Narain and Sri Prem Narain became the owners of the ground floor, first floor and second floor respectively of the disputed house. He also drew the attention of the Court to paragraphs 1 and 6 of the reply to the notice given by the petitioner dated 12.4.1993, which are quoted below :-

"   1& ;g fd esjs vkns'kd ds edku ekfyd loZJh lR; ukjk;u xaxk ukjk;u ,oa izse ukjk;u tk;loky gSa A vkids vkns'k us ftl vkilh ikfjokfjd cVokjs ds vuqlkj vdsys gh uksfVl Hkstk gS mldh dksbZ lwpuk esjs vkns'kd dks dHkh fdlh uas ugha nh A vkids vkns'kd dk mDr rFkkdfFkr cVokjk dc gqvk gS bldk Hkh dksbZ Kku esjs vkns'kd dks ugha gS A ,slk izrhr gksrk gS fd ,d iqjkusa fdjk;snkj dks ijs'kku djus dh nqHkkZouk ls cVokjs dh dgkuh vkids vkns'kd usa x< yh gS A tc rd mDr dfFkr cVokjs dh iqf"V lHkh lgekfyd u djsa esjk vkns'kd mDr lHkh O;fDr;ksa dks edku ekfyd ekuusa ds fy, foo'k gS !

&&&&&

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6& ;g fd vkids vkns'kd dks esjs vkns'kd dh fdjk;snkjh lekIr djusa vFkok iqu% fdjk;k ekWxusa dk dksbZ vf/kdkj ugha gS A vkidk uksfVl fof/k fo#) gS rFkk fujFkZd gS A"

Counsel for the respondents also drew the attention of the Court to the application under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure wherein it has been stated that the petitioner had refused to accept Sri Prem Narain Jaiswal- the respondent no. 3 as landlord of the disputed portion of house no. 28/127 SirkiMahal, Kanpur Nagar.

In support of his contentions, counsel for the respondents placed reliance upon a decision of Hon'ble Supreme court in Shamim Akhtar Vs. Iqbal Ahmad and another 2001 (1) A.W.C- 44(S.C).

No other point was argued by counsel for the parties.

I have heard counsel for the parties and perused the record.

The trial court vide judgment and order dated 30.1.1997 held that there was no arrears of rent due against the petitioner but order of eviction was passed on the ground that he had denied the title as landlord of Sri Prem Narain Jaiswal- respondent no. 3.

Aggrieved against the order of eviction passed by the trial court dated 30.1.1997, the petitioner preferred J.S.C. Revision No. 40 of 1997 before the District Judge, Kanpur Nagar.  The respondent no. 3 also feeling aggrieved against the finding of the trial court that no arrears of rent were outstanding against the petitioner, filed J.S.C. Revision No. 52 of 1997. Vide order dated 13.2.2001, the revisional Court dismissed the revision of the petitioner and allowed that of respondent no. 3.

Though it appears from the statement of the petitoner- Ram Bharose that he has stated that he has never denied the title of the respondent no. 3 but he unequivocally stated that :-

"           lR; ujk;.k ds fdjk;snkj dkSu gS ekywe ugha uhps jgrs gSa A xaxkukjk;.k ds fdjk;snkj izFke [k.M ij jgrs gSa A fOnrh; [k.M dk esjs vykok 'kkjnk nRr tks xqtj x;s o izHkw ukjk;.k fdjk;snkj gSa ;s izse ukjk;.k ds fgLls ds fdjk;snkj gSa A"

It has been held in Mohd. Ali V. Mohd. Abrar- A.R.C 1981 (1)-239 and Bhagna Vs. District Judge Bareilly-A.R.C 1995(1)-304 that if the tenant denies title of the landlord and states that other co-owners are also owner of the building, it amounts to denial of title and the tenant is liable for eviction.

The revisional Court has affirmed the findings of the trial Court by holding that the tenant- Ram Bharose knew from the very beginning that his part of tenanted accommodation had fallen to the ownership of the respondent no. 3 and that he sent the rent by money order to respondent no. 3 earlier also, as such, it is wholly false to say that there was any doubt that other persons were also co-owners of the disputed accommodation of which the petitioner was tenant.

I have thoroughly gone through the decisions on which counsel for the petitioner placed implicit reliance but I find that the facts and circumstances of those cases are distinguishable from those of the case in hand, as such, they are not applicable to the peculiar facts and circumstances of the instant case.

Both Courts below have given a concurrent finding of fact against the petitioner that he had denied the title of the landlord- Sri Prem Narain as landlord.  The Courts below have rightly arrived to the conclusion that there was absolutely no basis for the petitioner to deny the ownership or title of respondent no. 3. In my opinion, the rent deposited by the petitioner jointly in the name of his brothers, particularly one who was dead cannot be said to be legal tender of rent under Section 30(1) of the Act and such a tenant cannot get benefit of the deposit.

For the reasons stated above, the writ petition fails and it deserves to be dismissed.

In the result, the writ petition is dismissed.  No order as to costs.

Dt. 31.7.2006

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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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