Court No. - 7
Case :- MATTERS UNDER ARTICLE 227 No. - 1284 of 2018 Petitioner :- Dharmendra Kumar Sharma Respondent :- Somendra Babu(Since Deceased) And 13 Ors. Counsel for Petitioner :- Tarun Agrawal,Ajay Kumar Vashistha Counsel for Respondent :- Swapnil Kumar
Hon'ble Surya Prakash Kesarwani,J.
1. Rejoinder affidavit filed today, is taken on record.
2. Heard Sri Ravi Kant, learned Senior Advocate, assisted by Ms. Kirti Singh, learned counsel for the defendant no.2/petitioner and Sri Swapnil Kumar along with Sri Anoop Trivedi, learned counsel for the plaintiff- landlords/respondents - 1st set .
3. Briefly stated facts of the present case are that shop No. 636, Ward No.1, Nadrai Gate, district Kasganj, was owned by one Sri Jagmohan Lal, son of Sri Kedari Lal. During his life time he admitted that one Sri Ram Swaroop Sharma, son of Sri Jhandu Lal was a tenant in the aforesaid shop. Sri Ram Swaroop Sharma died issue-less in September 1983. He had only one real sister namely, Smt. Triveni Devi. The aforesaid owner Sri Jagmohan Lal executed a will dated 21.10.1982 in favour of the plaintiff-respondent nos. 1 and 2. He died on 20.10.1982. Thus, the plaintiff-respondent became the owner and landlord of the disputed shop. They filed S.C.C. Suit No.34 of 1986 (Somendra Babu and Upendra Kumar, Smt. Triveni Devi and Dharmendra Kumar ), praying for ejectment of the tenant/ defendant no.1 on the ground of subletting to the defendant no.2/petitioner herein. During pendency of the aforesaid S.C.C. Suit, the plaintiff-respondent no.1 Sri Somendra Babu died, who was succeeded by heirs and legal representatives being plaintiff-respondent nos. 1/1 to 1/6. The defendant no.1 Smt.Triveni Devi also died during pendency of the aforesaid S.C.C. Suit. She was succeeded by her heirs and legal representatives i.e. defendant no.1/1 to 1/5.
4. A written statement was filed by the defendant no.2/petitioner herein on 29.10.1987 in which he took the stand that he succeeded the tenancy by Will of the original tenant Sri Ram Swaroop Sharma. He also took the stand that during the life time of Sri Ram Swaroop Sharma, he was looking after the business and was also a co-tenant. When the aforesaid S.C.C suit was at the final stage of disposal, the defendant no.2/petitioner herein filed an alleged paper no. 211C, dated 5.2.1975 by which he attempted to establish that the original landlord late Sri Jagmohan Lal had admitted him as co-tenant along with the original tenant late Sri Ram Swaroop Sharma.
5. The aforesaid suit was decreed by a judgment dated 31.3.2016 passed by the Judge Small Cause Court /Civil Judge (Senior Division), Kasganj.
6. On the issue of tenancy or subletting to the defendant no.2/petitioner, the Judge Small Cause Court recorded a finding that the shop in question was sublet. He disbelieved the evidence/permission deed dated 5.2.1975 (paper No.211C). He also observed that even there was no pleading in the written statement which may support the evidence 211C rather the pleading made by the defendant no.2/petitioner was that by way of Will he succeeded the tenancy and that rent was being paid by him since the life time of late Ram Swaroop Sharma, which were being recorded in the books of accounts. However, no evidence including the alleged books of accounts were filed by the defendant no.2/petitioner herein.
7. During pendency of the aforesaid S.C.C. Suit, the defendant no.2/petitioner had filed a petition being matters under Article 227 No.1267 of 2016 (Dharmendra Kumar Sharma v. Somendra Babu and 6 others) to challenge the order dated 21.12.2015, which was dismissed by order dated 16.3.2016 observing as under :
"It is wholly undisputed that the order dated 21.12.2015 is an interlocutory order against which the petitioner-respondent filed the aforesaid S.C.C. Revision No. Nil of 2016 which has been dismissed by the impugned order dated 16.1.2016 on the ground of maintainability. It is also undisputed that the petitioner-respondent has filed in evidence the alleged paper dated 5.2.1975 after about 29 years of the institution of the case. The statement of D.W.-1 has already been recorded. He has also been cross examined. By order dated 21.12.2015 the court of Civil Judge (Senior Division), Kasganj permitted the petitioner-respondent to lead other evidences. Learned counsel for the petitioner has not disputed the facts that the petitioner- respondent has thereafter produced two witnesses namely D.W.-3 and D.W.-4 to prove the paper dated 5.2.1975. Thus, looking into the entirity of the facts and also the fact that adjudication of S.C.C. Case No. 34 of 1986 is pending since last 30 years and its conclusion is being delayed by the petitioner-respondent/tenant, I do not find any infirmity in the impugned order.
In view of the aforesaid, writ petition is dismissed".
8. Aggrieved with the judgment dated 31.3.2016 decreeing the suit, the defendant no.2/petitioner filed SCC Revision No.1 of 2017 (Dharmendra Kumar Sharma Vs. Somendra Babu and others). During pendency of the revision he filed an amendment application to amend his written statement by inserting the pleadings regarding paper No.211 C. This amendment application was rejected by the revisional court by order dated 21.12.2017. Aggrieved with that order the defendant no.2/petitioner filed a petition being Matters Under Article 227 No. - 261 of 2018 (Dharmendra Kumar Sharma Vs. Somendra Babu and 13 others) which was dismissed by this Court by order dated 18.1.2018.
9. Thereafter, the revision of the defendant no.2/petitioner was heard on merit and the impugned judgment dated 7.2.2018 was passed by the Additional District and Sessions Judge/F.T.C. Court No.2, Kasganj, dismissing the SCC Revision No.1 of 2017. Aggrieved with the judgment and decree dated 31.3.2016, passed in SCC No.34 of 1986 and the judgment dated 7.2.2018, passed in SCC Revision No.1 of 2017, the defendant no.2/petitioner has filed the present petition under Article 227 of the Constitution of India.
10. Sri Ravi Kant, learned Senior Advocate, submits as under:
(i) Plaintiff-respondents have failed to prove sub-tenancy as was alleged by them in paragraphs 2 and 6 of the plaint.
(ii) No evidence could be led by the plaintiff-respondents regarding payment of rent by the defendant no.2.
(iii) The defendant no.2/petitioner is not challenging the impugned judgments on the basis of consent letter dated 5.2.1975 (paper No.211 C) said to be allegedly issued by the original landlord late Sri Jagmohan Lal rather the challenge is being made on the ground that the plaintiff-respondent have completely failed to prove their case of sub-tenancy and payment of rent.
11. Sri Swapnil Kumar learned counsel for the plaintiff- landlords/respondents - 1st set submits as under:
(i) The whole case of the defendant no.2/petitioner is that he is a tenant by Will of the original tenant late Sri Ram Swroop Sharma. There can not be transfer of tenancy by Will even if it is assumed for arguments sake that the original tenant has ever executed any Will in favour of the defendant No.2/petitioner.
(ii) Subsequent stand taken after 30 years by the defendant no.2/petitioner on the basis of a fabricated piece of paper dated 5.2.1975 (paper No.211 C) has been rightly disbelieved and rejected by the revisional court.
(iii) The findings recorded by the courts below on the question of sub-tenancy and rent are the concurrent findings of fact based on consideration of relevant evidences on record. Therefore, these findings can not be interfered with in jurisdiction under Article 227 of the Constitution of India.
12. I have carefully considered the submissions of learned counsels for the parties.
13. Undisputedly, Sri Jagmohan Lal was the original owner and landlord of the disputed shop. The original tenant was one Sri Ram Swaroop Sharma. He died in September 1983 leaving behind him his sister as legal heir.
14. No evidence could be brought on record by the defendant no.2 that he is a family member of the deceased tenant Ram Swaroop Sharma within the meaning of Section 3(g) of U.P. Act 13 of 1972. He is undisputedly not the legal heir of the deceased tenant. No evidence could be led by him that he was ever inducted or permitted as tenant by late Sri Jagmohan Lal (the original owner and landlord) or by the plaintiff-landlords/respondents-1st set. On consideration of evidences on record both the courts below have recorded concurrent findings of fact that the defendant No.2/petitioner is the sub-tenant. This being a finding of fact based on consideration of relevant evidences on record, can not be interfered in jurisdiction under Article 227 of the Constitution of India. There is no dispute of landlord-tenant relationship between the plaintiff-landlords/respondents-1st set and the tenant Ram Swaroop Sharma or his legal heir i.e. his sister (the defendant no.1).
15. Sub-letting is a ground for eviction under Section 20(2)(e) of U.P. Act 13 of 1972. Thus, once the landlord tenant relationship between the plaintiff and the original tenant stood established and the ground of eviction as provided under the U.P. Act 13 of 1972 exists, the necessary consequence would be the eviction of the tenant. This conclusion is also supported by the law laid down by Hon'ble Supreme Court in the case of Kanaklata Das and others v. Naba Kumar Das and others, (2018) 2 SCC 352 (paras 11 to 11.6).
16. In view of the above discussion, I do not find any merit in this petition. Consequently, the petition fails and is hereby dismissed. Order Date :- 28.3.2018/vkg