Prafulla C. Pant, J.
1. By means of this writ petition, moved under Article 226 of the Constitution of India, the petitioner/landlord has sought writ in the nature of certiorari quashing the order dated 27.2.1999, passed by learned District Judge, Almora in Civil Revision No: 19 of 1997, whereby the order dated 12.12.1997 passed by Judge, Small Cause Court/Civil Judge (Senior Division), Almora, in S.C.C. Suit No. 3 of 1995 was set aside.'
2. Brief facts of the case, as narrated in the writ petition are that, the petitioner instituted a S.C.C. Suit No. 3 of 1995 against respondent No. 2, Chandra Nath Sah (tenant) for recovery of arrears of rent and eviction from the shop in question which was part of house No. 207, Nanda Devi Marg, Lala Bazaar, Almora. It was alleged that petitioner along with Jagdish Lal Sah, Kailash Lal Sah and Deep Lal Sah, was a co-owner of the said house. Later, the shop in question came in the share of petitioner (plaintiff) in the family partition. Respondent No. 2, Chandra Nath Sah was tenant in said shop on rent at the rate of Rs. 66 per month, who contested the suit on the ground that Sri Kailash Lal Sah, a cousin brother of the plaintiff was owner to the extent 1 feet x 5 inches in the shop in question. He further pleaded that he had already paid rent to Kailash Lal Sah, the landlord. Denying the fact that he committed default in payment of rent, if is pleaded by respondent No. 2 (tenant) that his tenancy does not stand terminated by the notice served by the plaintiff. Learned trial court after recording the evidence, and hearing the parties, decreed the suit for arrears of rent and ejectment of the defendant vide its order dated 12.12.1.997 (copy Annexure-3 to the writ petition). Aggrieved by which, the defendant (respondent No. 2) filed a Revision No. 19 of 1997 before the District Judge, Almora, who decided the same vide his order dated 27.2.1999 (copy Annexure-4 to the writ petition), whereby order of the Small Cause Court was set aside and suit of the petitioner (plaintiff) was dismissed. Hence, this writ petition by the landlord on the ground that the impugned order passed by the revisional court is illegal. It is further alleged by the petitioner (plaintiff) that he was the lone landlord of the house in question and the learned District Judge, Almora, has erred in law in wrongly re-appreciating the evidence and corning to the different conclusion as against what has been held by the learned trial court. It is further alleged that the rent deposited under Section 30 of the U. P. Act No. 13 of 1972 was wrongly treated valid payment of rent by the revisional court.
3. Respondent No. 2 (defendant) filed the counter-affidavit before this Court, in which it has been admitted that the suit for recovery of arrears of rent and ejectment was instituted by the petitioner (plaintiff) against the answering respondent, which was decreed by the trial court. It is further admitted that the respondent No. 2 filed revision against said decree which was allowed by the respondent No. 1 and the suit was dismissed. However, it is denied that revisional court has erred in law in appreciating the evidence. It is reiterated that Kailash Lal Sah (D.W. 2) stated before the Court that he is the sole owner of the property in question. It is further slated that the rent was accepted by Kailash Lal Sah. It is also stated in the counter-affidavit that the defendant-respondent did not commit any default in payment of rent, as more than the rent due, was deposited by him.
4. I heard learned Counsel for the parties and perused the affidavits filed by the parties before this Court.
5. Admittedly, respondent No. 2 was the tenant in the shop in question on rent at the rate of Rs. 66 per month. Dispute relates as to the alleged default committed by the tenant and if his tenancy stood terminated after one month of notice served by the plaintiff on him. From the evidence on record, it appears to be an undisputed fact that originally the house was owned by Jagdish Lal Sah, Kailash Lal Sah and Deep Lal Sah (all sons of Lachchi Lal Sah) and Harish Lal Sah S/o Jai Lal Sah. In paragraph 4 of the writ, petition, it has been stated that shop in question came into the share of the petitioner (plaintiff) who became the landlord of the shop. In reply to paragraphs 4 and 5 of the writ petition, in the counter-affidavit it has been stated by the respondent No. 2 (defendant) that the contents of paragraph Nos. 4 and 5 of the writ petition are matter of record and need no comments. That being so, it is not denied by the respondent No. 2 that after family partition petitioner (plaintiff) became the landlord of the shop in question. Annexure-3 filed with the counter affidavit, is the copy of letter dated 15.4.1993 sent by respondent No. 2 (defendant) to Kailash Lal Sah (earlier co-landlord) in which it has been mentioned by the defendant that he is happy to know that there had been a mutual family partition amongst brothers, who are owners of the building in question. However, he has made a query through that letter that since out of the tenanted shop in question, a part of it to the extent of 1 feet x 5 inches, has gone in the share of Kailash Lal Sah, as such, the tenant (defendant) has sought clarification as to what part of monthly rent is to be paid to him. Annexure-4 to the counter affidavit filed by respondent No. 2, is the letter dated 20.8.1993, in which aforesaid letter has been answered by Sri Kailash Lal Sah stating that the defendant should pay Rs. 11.90 paise to him. From perusal of the record, it is clear that the default was alleged to have been committed for the period from April, 1992 to July 1994 and, thereafter, adding mesne profits to it, Rs. 2,1 12 were sought to be recovered by the plaintiff, apart from the ejectment of the defendant on the ground of determination of tenancy by serving notice under Section 106 of Transfer of Property Act, 1882. Learned Judge, Small Cause Court, after discussing the evidence, has come to the conclusion that since D.W., Kailash Lal Sah, to whom the defendant says that he used to pay the rent, has admitted in his cross-examination that it was Harish Lal Sah (petitioner-plaintiff) who had right to recover the rent, as such, he found that no default in payment of rent has been committed by the defendant. Learned trial court has further held that the rent deposited under Section 30 of the U.P. Act No. 13 of 1972 is not the valid payment of rent made to the landlord, as for seeking protection under Sub-section (4) of Section 20 of the U.P. Act No. 13 of 1972, the defendant is required to deposit entire admitted rent with interest and costs. However, learned revisional court has disbelieved the theory of family partition on the ground that no document on record to this effect was filed. From the plain reading of the judgment of the revisional court, it is clear that it has erred in law by holding that no document was filed to show the family partition as that Court itself has mentioned that the family partition was an oral family partition. The learned revisional court has further erred in law in holding that even if the family partition is admitted to have taken place, the same is hit by Section 17 of the Registration Act. The view expressed by the revisional court appears to be misconceived and against the law, for the reason that when there is no execution of any document nor any such document relied by party, there is no question of application of Section 17 of the Registration Act. Learned revisional court has reversed the finding of the trial court on the point of default also on the ground that Kailash Lal Sah has accepted rent even after family partition and, as such, the defendant cannot be said to have committed the default in payment of rent. The finding of the learned revisional court to that effect again appears to be perverse for the reason that, as I mentioned above, it is clear from the copy of the letter, Annexures-3 and 4 to the counter-affidavit, that the defendant has full knowledge of the oral family partition and that Kailash Lal Sah, at the best, was not entitled to rent more than Rs. 11.90 paise.
6. In Param Sukh and Anr. v. IIIrd Additional District Judge, Jalaun at Orai and Ors., 1986 (2) ARC 305, it has been held that the revisional court should not ordinarily reverse the findings of fact of the trial court unless it is against the record or the law. In Laxmi Kishore and Anr. v. Har Prasad Shukla, 1981 ARC 545, also it has been held by the Allahabad High Court that the revisional court should interfere with the findings of fact of the trial court only when such finding is based on the inadmissible evidence or an error of law has been committed in appreciating the evidence. Same view has been expressed in Om Prakash and Ors. v. IInd Additional District Judge, Saharanpur and Ors., 2000 (4) AWC 3173 : 2000 (2) ARC 739.
7. On the point of protection from ejectment under Sub-section (4) of Section 20 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, in Ghoorey Lal v. Sheo Moorti Gupta, 1995 (2) ARC 4, it has been held that where the tenant even if makes deposit of the rent but denies the title of landlord, being the deposit not unconditional, the tenant is not entitled to the protection of Section 20 (4) of said Act. In the present case, assuming for a moment that the defendant deposited the rent but since he has denied the title of the landlord he cannot be said to be entitled to the protection provided under sub-section (4) of Section 20 of aforesaid Act.
8. In view of aforesaid discussion, the writ petition deserves to be allowed. The impugned judgment and order dated 27.2.1999, passed by respondent No. 1 in Civil Revision No. 19 of 1997, is quashed. However, in the interest of justice, the respondent No. 2 (tenant) is allowed three months time from today for vacating the shop in question, failing which the decree passed by the learned trial court shall be executed. No order as to costs.