Jameel Ahmad Alias Mathu Vs. Smt. Kumud Trivedi and ors. - Court Judgment

Rakesh Tiwari, J.

1. Heard counsel for the parties and perused the record.

2. The petitioner has challenged the order dated 31.3.2004 passed by the revisional court whereby the revision under Section 25 of the Provincial Small Causes Courts Act against the order dated 5.4.2003 passed by the Judge, Small Causes Court, Kanpur Nagar decreeing S.C.C. Suit No. 566 of 1989 filed by the plaintiff/respondent No. 1 for ejectment and arrears of rent.

3. It is also prayed in the writ that the remand order dated 13.12.1999 whereby the revision filed by respondent No. 1 against the order dated 18.4.1995 passed by Judge Small Causes Court was allowed be remanded to the Court below for its decision afresh.

4. Brief facts of the case are that respondent No. 1 filed S.C.C. Suit No. 566 of 1989 on 12.8.1989 against Smt. Patraji widow of Bachchu Lal resident of 15/228, Civil Lines, Kanpur Nagar alleging that she was tenant of one khapraildar. i.e., room having roof made of tiles in premises No. 5/228, Civil Lines, Kanpur which was purchased by plaintiff from previous owner Sheikh Bariq Ali son of Mubarak Ali.

5. It was also alleged that Smt. Patraji has without express consent and permission of either of plaintiff/ landlord respondent No. 1 or the earlier landlord Sheikh Bariq constructed two rooms unauthorizedly on the open land appurtenant to the tenanted accommodation aforesaid and had sublet one room to the petitioner and other room to respondent No. 3 Sri Niaz.

6. Initially neither the petitioner nor Niaz were impleaded as parties in the suit nor any relief was claimed against them. It appears that at later stage, the plaintiff impleaded the petitioner as defendant No. 2 and Niaz as defendant No. 3 by amendment on 25.7.1991. He also added paragraph 6A by means of amendment to the effect that Smt. Patraji had sub-let one room to petitioner and the other to Niaz, each on monthly rent of Rs. 400 per month.

7. The petitioner filed his written statement denying the allegations made in the plaint inter alia, that Smt. Patraji had never constructed the two rooms on the open land nor had she ever sub-let them to the petitioner or to Niaz as alleged. The petitioner further pleaded that in view of plaint allegations that the said rooms were constructed on open land by Smt. Patraji and the suit for ejectment of the petitioner and Niaz was not maintainable in J.S.C.C. Court especially when Smt. Patraji was tenant of only one room and not of the open land over which the plaintiff alleged that she constructed two rooms and had let out to the petitioner and Niaz. It is submitted that the previous owner/landlord Sheikh Mubarak Ali had previously let out a piece of open land at the rate of Rs. 7.50 per month to the petitioner's father about 35 years back who had constructed one room, verandah, kitchen and latrine which is a part of the same premises No. 15/228 which was earlier in the tenancy of the petitioner's father and thereafter it has come in petitioner's possession as his heir. With the consent of the then landlord this accommodation is in possession of the petitioner.

8. It is stated that the plaintiff after purchasing the accommodation did not issue any notice to the petitioner however, on receiving information about purchase, the petitioner herself tendered rent by hand to the plaintiff but she refused the same, hence the rent w.e.f. 1.5.1988 onwards was remitted through money order. It is further stated that when the plaintiff refused to accept the money order also the petitioner was compelled by the circumstances to deposit the rent under Section 30 in Misc. Case No. 104/70 of 1989 in the Court of Munsif. It was also averred that the name of petitioner's father Mohd. Yaqub his mother Smt. Mariyum as well as his name is also entered in the Municipal Assessment Register as tenant of the accommodation in dispute.

9. The trial court by judgment and order dated 18.4.1995 framed the following points for determination.

(a) Whether the defendant is defaulter under Section 20(2)(a) of U.P. Act No. 13 of 1972?

(b) Whether the defendant No. 1 raised structural alteration by diminishing the value and utility of the property disfiguring the same without the consent of the plaintiff?

(c) Whether the defendant No. 1 sub-let the disputed accommodation to defendant Nos. 2 and 3 without permission of plaintiff?

(d) Whether the tenancy of defendant No. 1 has been terminated?

(e) Relief?

10. The contention of the earned Counsel for the petitioner is that the Court on basis of evidence found that petitioner-defendant No. 1 was defaulter and that the plaintiff has not proved the fact that the land on which the alleged constructions were standing was part of the tenanted accommodation. The Court noting the cross-examination of the plaintiff regarding the period and time of construction that Patraji nedono kamro ka airman 1989 me kiya hai tarikh wa mahina yad nahi meri duty ka samaye subah 12 bqje din tak hi unhone banwa liya tab maine notice diya, has observed that it is unbelievable that person can construct within few hours and the plaintiff will not make any complaint.

11. The Court believed the case set up by the petitioner that the accommodation in his possession was tenanted portion and the open piece of land was let out to him by the previous owner Sheikh Mubarak @ Rs. 7.50 per month about 35 years back to Mohd. Yaqub father of defendant No. 2, who got the tenanted portion constructed. He had been realizing rent from the father and thereafter from the mother for which rent receipt had been issued by the previous landlord. No notice was issued by the plaintiff to the petitioner.

12. The Court recorded a finding that it was proved beyond doubt from the documents that the father and the mother of defendant No. 2 were living as tenants in portion alleged to have been constructed by defendant No. 1 and which in fact had not been raised by defendant No. 1 as was unbelievable that a party will get the paper manufactured up to the filing of the suit with an intention to use it in future. The petitioner proved all these papers in his oral examination. He has been subjected to long cross-examination but nothing material could be elicited from him. The Court also considered the entries in the Assessment Register, which supported the petitioner's case. The Court has recorded a categorical finding on record that the plaintiff has utterly failed to prove that thereby diminishing the value and causing disfigurement the case of subletting by defendant No. 1 to defendant Nos. 2 and 3 was also disbelieved by the Court which held that to establish that tenant had sub-let the accommodation the burden lies on the landlord which the plaintiff has failed to discharge and that the petitioner had proved that he has occupied the portion in the capacity as tenant. The suit was, therefore, dismissed by order dated 18.4.95 so far as ejectment of the petitioner was concerned.

13. Aggrieved by the aforesaid order, the plaintiff filed revision under Section 25 of the Provincial of Small Causes Courts Act against the order dated 18.4.1995 which was allowed by order dated 13.12.1999 remanding the case to the court below.

Submissions on behalf of the petitioner:

14. The counsel for the petitioner submits that the pleading with regard to construction of two rooms and subletting of these two rooms one to the petitioner and second to Niaz are wholly vague as there is no averment regarding either the date, month or year of construction in respect of subletting and no claim can be laid on the basis of such vague plea. It is urged that the trial court had initially recorded a correct finding that the plaintiff has failed to prove that defendant No. 1 Smt. Patraji has made any construction in 1981 or has sublet the same to the petitioner, therefore, the subsequent judgments are perverse.

15. He also submits that it was the plaintiff own case that defendant No. 1 Smt. Patraji was tenant of one room accommodation. It was never the case that the land on which the accommodation in possession of the petitioner and Niaz were ever formed part of tenancy of defendant No. 1 Smt. Patraji. From the evidence on record it was proved that an open piece of land was let out to the petitioner's father Mohd. Yaqub by the then landlord Sheikh Bariq All son of Mubarak All to them; that in Assessment Register also the name of petitioner's father and mother stood recorded as tenants. Therefore, firstly, the suit In respect of land over which the constructions were later on raised by the tenant and which did not form part of tenancy of defendant No. 1 was not cognizable by the civil court.

16. In support of his submission, he has relied upon the case of Vijay Kumar v. Mukund Das 2004 (2) JCLR 216 in which it has been held that suit for ejectment and recovery of rents determination of jurisdiction tenancy of open land later on permitted to raise temporary construction, suit not maintainable in J.S.C.C. Court. Secondly, in Uttar Pradesh in second schedule to the principle of Small Causes Courts Act, 1887 with Article 4, the following article was substituted namely 'A suit for possession of immovable or for recovery on an interest in such property, but not including a suit by a lesser or the eviction of a lessee from a building after determination of his lease. Therefore, the only a suit by a lesser for eviction of a lessee from a building only has been made cognizable by J.S.C.C. Court. As held in the aforesaid ruling that where the open land was let out and a building was constructed by the tenant, the tenancy would still be of a land and not of building and therefore, such a suit is not maintainable by J.S.C.C. Court.

17. It is next submitted that Section 25 of U.P. Act No. 13 of 1972 prohibits sub-letting. It provides that no tenant shall sublet the whole of the building under his tenancy hence, the tenant would be liable for ejectment for sub-letting without consent of the landlord if he has sub-let any portion or whole of the building under his tenancy. It is urged that in the instant case admittedly, defendant No. 1 was tenant of one room only and the accommodation in possession of the petitioner does not form part of the said room under the tenancy of defendant No. 1. It is plaintiff own case that the accommodation in petitioner's possession has been constructed on open land which was not in the tenancy of defendant No. 1, therefore, sub-letting by defendant No. 1 of building under her tenancy does not arise.

18. It is further submitted that as regards the finding of the court below to the fact that the portion which was under tenancy of petitioner's father and mother was occupied by the petitioner's brother Fakir Mohammad and not by the petitioner and from this fact the inference had been drawn by the court below that the petitioner is in possession of accommodation which was constructed by defendant No. 1 on the open land is wholly perverse and is a new case made out which was not pleaded by the plaintiff nor she led any evidence on this point. The courts below cannot build up a case against the defendant on a stray sentence in his cross-examination that his brother Fakir Mohammad was also in possession of the accommodation let out to petitioner's father.

19. In support of this contention he has placed reliance on paragraph 9 of the case of Ram Gopal u. Kishan Gopal AIR 2003 SC 4319, in which the Hon'ble Supreme Court has held that in absence of any pleading whatsoever the Courts could not have gone into the question even if some evidence was adduced. In absence of any pleading by the plaintiff that the case of the petitioner that the accommodation in his possession was a separate tenancy created by earlier landlord in favour of his father which was in possession of plaintiff cannot succeed nor the court below could have decreed the suit on the basis of a stray evidence in the cross-examination of the plaintiff that in the accommodation left by petitioner's father his brother Fakir Mohammad was also living. The plaintiff had to stand on her own legs of sub-letting for which she utterly failed to prove as found by the trial court in its judgment dated 18.4.1995.

Submissions on behalf of the respondents:

20. The counsel for the respondents submits that the petitioner has not denied in the writ petition that he is tenant in the accommodation in dispute and also the fact that his father Yaqub took the disputed accommodation on tenancy from its erstwhile owner. He submits that it is also an admitted fact that the Second Additional Judge, Small Causes Court, Kanpur Nagar in its judgment dated 4.5.2003 gave a finding that the petitioner and Niyaj were sub-tenants and that both of them have filed revision before the District Judge, Kanpur Nagar which was dismissed vide Judgment and order dated 31.3.2004.

21. He has also brought to the notice of the Court that only Jameel has filed the present writ petition but Niyaj has not filed the petition challenging the order dated 31.3.2004 as such the order is final in so far as Niyaj is concerned.

22. It is further submitted that Niyaj in compliance of the order and decree of Second Additional Judge, Small Causes Court, Kanpur Nagar, handed over possession to respondent No. 1 and also gave an application alongwith an affidavit in the court below accepting her case that respondent No. 1 is the landlady of the accommodation in dispute.

23. The counsel for the respondents submits that from the aforesaid admitted fact the only question that remains to be decided is whether the petitioner is tenant of the disputed accommodation or not. He submits that the petitioner has repeatedly said in his written statement that his father Yaqub took the tenancy of the disputed accommodation from the earlier owner and after his death his wife became the tenant and after her death the petitioner is in possession of the disputed accommodation. On the aforesaid admitted position, the counsel for the respondents has contended that if the portion occupied by the petitioner is different from the disputed accommodation then it was clear that the petitioner's parents were not the tenants of the disputed accommodation in which the petitioner is residing. It is further stated that it is clear from the statement of the petitioner that his father was not the tenant of the disputed accommodation, hence it is clear that the tenancy of the aforesaid accommodation in possession of the petitioner did not devolve upon him from his parents.

24. The statement of Jameel relied upon by the counsel for the respondents is as under:

Yaqub had three sons and two daughters and also said that two sons were living apart from his youngest son who was living in Juhi. Petitioner also said that my youngest brother lives beside Patraji's accommodation, the portion of my brother is of one room, verandah and Aangan, the same portion is in the tenancy of Patraji. My brother lives since 40 years in that accommodation and the said accommodation is of thatched roof (khaprail) and his age is 50 years. In the same accommodation in which my brother resides Yaqub and Mariyam also resided. He also says that he has no document to prove his tenancy because the agreement title place between Variq Ali and my father provided 25 feet long and 15 feet wide open land and the material used for the construction were of my father he spent his whole life at that place.

25. It is further urged by the counsel for the respondents that according to the decisions of both the courts below the status of the petitioner is of a sub-tenant which is unauthorized and illegal in the disputed accommodation.

26. It is also stated that both the courts below have given a finding of fact that father of the petitioner was tenant In different portion in which the brother of the petitioner Fakeer Mohd. is residing and the tenanted portion of the petitioner is at distinct place which is a part from the accommodation of Fakeer Mohd.

27. It is then stated that due to typing error in the judgment of Vth A.D.J., Kanpur Nagar at the place of issue Nos. 2 and 4, issue Nos. 2 and 3 has been typed but after reading the order dated 18.5.1995, it appears that issue Nos. 2 and 3 were decided against the respondent-landlady and against aforesaid issues landlady filed a revision before District Judge, Kanpur Nagar and thereafter revision was allowed. The matter was remanded for reconsideration with regard to issue Nos. 2 and 3 only by order dated 13.12.99, therefore, the typing error cannot be beneficial for the petitioner.

28. He lastly submits that according to decision of Small Causes Court, Smt. Patraji was found guilty and she was having sub-tenant Jameel and Niyaj on that allegation decree was passed against her and she was evicted from the accommodation which is evident from the report of the Commissioner that Patraji after conception of the rooms on the land appurtenant let out the same to the petitioner.

Conclusions:

29. The petitioner has accepted in his statement that during his childhood he was living alongwith his father in the tenanted portion of Fakeer Mohd. (brother of the petitioner). From the above statement it is clear that Fakeer Mohd. was never tenant of the disputed accommodation and neither resided and nor was a tenant of the disputed accommodation. It is clear that Yaqub was residing In a different accommodation and after death of Yaqub and Mariyam petitioner's brother Fakeer Mohd. is residing. The father of the petitioner took the accommodation in dispute on rent afterwards and started living there till his death which automatically devolved upon his wife and after her death on their sons. Yaqub and Mariyam were never tenants of the disputed accommodation.

30. The courts below have given a categorically finding that from the Ration Card, Marriage certificate as well as various letters it is clear that house No. 15/228 has a big boundary and several accommodations were available there and also many persons had purchased a portion from the aforesaid land bounded by a boundary of (15 x 228).

31. The petitioner cannot get the benefit of the receipt of the rent submitted in the Court alongwith application under Section 30 for reason that his application had been dismissed. The rent deposited under Section 30 at the risk of the applicant and no person can claim to become a tenant by depositing any amount as alleged rent under Section 30 of U.P. Act No. 13 of 1972.

32. In view of categorical findings by the courts below that the rent receipts are forged and are fabricated document, the petitioner has no case on merits. Moreover, it may be noticed that the case was under hearing since 1989 and the petitioner neither even submitted any of alleged rent receipts till 2004 nor has given any justification in this regard to the District Judge as to why his application which was dismissed was not kept on record. In these circumstances, the rent receipts cannot be considered as evidence. Both the courts below have recorded findings that the petitioner is illegal occupant.

33. For the reasons stated above, the writ petition is dismissed, No order as to costs.