Heard Sri Adnan Ahmad, learned counsel for the revisionist and Sri Abdul Rasheed, learned counsel for opposite parties/defendants.
This Civil Revision has been filed against the judgement dated 29.10.2013 passed by the court of Judge, Small Causes in S.C.C. Suit No. 26/2010, whereby the suit filed by the revisionist for eviction, arrears of rent and damages has been rejected by the court below.
Factual Matrix Briefly stated, relevant facts of the case are that the revisionist undisputedly is the owner of land and house in question which was allotted to him by U.P. Awas Evam Vikas Parishad in the year 2002 under a sale deed executed on 26.3.2002 and registered on 4.4.2002. The disputed house came to be occupied by the opposite party since the month of April, 2006 whereas, as per the version of opposite party, the house has been occupied by him since 10.3.2016.
The facts on record reveal that a notice is said to have been sent under Section 80 CPC by the opposite party on 14.10.2008 claiming the refund of a sum of Rs. One Lakh with 10% interest within a period of one month and as a failure thereof, the notice threatened of bringing about a legal action against and at the cost of the revisionist. The communication of this notice in the capacity of tenant has been factually denied by the opposite party and it is averred that no such notice was ever communicated at his end by authorising the concerned advocate to send any such notice on his behalf to the revisionist.
The facts further reveal that a notice for termination of tenancy was sent by the revisionist on 9.2.2010 which is alleged to have been served to him on 11.2.2010. The failure to comply with the notice dated 9.2.2010 gave rise to the SCC Suit before the court below for the relief as mentioned above. The notice communicated to the opposite party on 9.2.2010 is in the capacity of a landlord/owner of the property in question but in reply thereto the opposite party denied the landlord-tenant relationship on the basis of an agreement dated 20.6.2007. The notice alleges default in the payment of rent, besides that the landlord informed that he does not wish to continue the premises to be under the tenancy of opposite party who has made certain alterations without any consent.
On the premise of the aforesaid notice a suit for eviction coupled with arrears of rent and damages for occupation was filed before the court below.
The plaintiff in his suit has alleged the induction of opposite party as a tenant on monthly rent of Rs. 1000/- w.e.f. March, 2006. The default in the payment of rent is alleged from the month of February, 2007 and at the time of filing the suit, arrears of rent to the tune of Rs. 30000/- have been said to have fallen due, recovery whereof alongwith the decree of eviction and mesne profits was prayed for. Apart from above, unauthorised alterations were also alleged against the opposite party giving rise to a cause.
The suit was contested by the opposite party and a written statement denying the case of revisionist/plaintiff and setting up his defence against the relief sought by the revisionist was put up.
From the perusal of written statement filed by the opposite party, it is evident that the landlord and tenant relationship was specifically denied, therefore, termination of tenancy by notice, according to the opposite party, was inconsequential. The defence and the claim set up by the opposite party/defendant can be gathered from the contents of Paras 2, 14, 15, 16 and 17 of the written statement filed by him, which for ready reference are reproduced below:
"2. That the contents of para 2 of the plaint are totally wrong and false hence vehemently denied, it is a cooked story only for the purpose of the case, the property in suit was never let out by the plaintiff to the defendant, as such there is no question of payment of rent to the plaintiff and no relationship of land lord and tenant ever existed between the parties. Plaintiff is put to strict proof thereof. The true facts are that the plaintiff has handed over the possession of the aforesaid house to the defendant after obtaining Rs. 50,000/- from the defendant at the time of his need and an agreement was also executed between the parties with certain conditions that if the plaintiff failed to refund the amount he shall execute the sale deed in favour of defendant after obtaining rest amount as per market value prevailed at the time of execution of agreement. Please see additional pleas.
14. That the plaintiff was in need of money as such he obtained Rs. 50,000/- (Fifty thousand) from the defendant and for the satisfaction and security of this amount he handed over possession of the aforesaid house to the defendant on 10.03.2006 (Tenth March Two thousand and Six) and thereafter entered into an agreement on 20.06.2007 (Twentieth June Two Thousand and Seven) with some terms and conditions given below. Since the original copy of the agreement is filed in R.S. No. 957/2009 pending in the Court of Civil Judge Lucknow (S.D.) as such its certified copy is filed as per list.
(a) the plaintiff has received total amount of Rs. 50,000/- (Fifty thousand) from the defendant by cash and handed over peaceful possession of the house in question with the covenant that whenever the plaintiff will refund the said amount the possession of the house shall be given to the plaintiff in case the plaintiff is not in a position to refund the same he will execute sale deed by obtaining balance sale consideration amount calculated on the market value prevailing at the time of execution of agreement.
(b) In case of failure on the part of the plaintiff to perform the contract on his part, the defendant shall be entitled to execute sale deed through the competent court of law or alternatively realize the advance amount given to the plaintiff and amount invested in the house in question; this agreement is duly executed in accordance with law and attested by the Notary Public in presence of two witnesses.
15. That the aforesaid agreement to sell is still valid and effective and has not been rescinded or cancelled by either party as such under the law the agreement is enforceable and both the parties are bound to obey, honour and follow the terms and conditions mentioned therein.
16. That the defendant raised construction and carved out repairing in the house to make it live worthy on the consent of the plaintiff in the manners given below:
(a) Rs. 50,000/- (Fifty thousand) in construction
(b) Rs. 42,000/- (Forty two thousand) in renovation The attested photostat copy of the receipts of building materials and other things are filed as per list for kind perusal of this Hon'ble Court as the originals are filed in 'Regular Suit No. 957/2009 pending in the Court of Civil Judge, Lucknow (S.D.) IN RE Jai Prakash Singh v. Hari Shanker Kushwaha for permanent injunction.
17. That the house is assessed with the Nagar Nigam (Zone Gomti Nagar) in the name of defendant and identity card issued by the Election Commission of India vide No. FPP5938485 and the Ration Card was also issued by the Area Rationing Officer as such the defendant is in lawful possession of House NO. 14/1109 Indira Nagar Lucknow. Copies thereof are made annexure to the affidavit in support of W.S."
It is noteworthy that the opposite party has firstly denied himself to be a tenant and secondly the defence on possession has been set up under an agreement dated 20.6.2007. The alleged agreement according to the respondent cleaRly mentions that a sum of Rs. 50,000/- was paid to the revisionist in cash for handing over peaceful possession of the house in question with a further stipulation that as and when the said amount was refunded, possession of the house shall be handed over to the revisionist. In the event of failure to repay the amount of Rs. 50000/-, the revisionist shall execute the sale deed by obtaining balance sale consideration of the property at the market rate on the date of agreement. In addition to above, some construction cost is also set out by the opposite party to have been incurred towards renovation etc. in his written statement.
The evidence in the light of the pleadings in the plaint and written statement was led. In relation to the agreement dated 20.06.2007, para 14 of the written statement has clearly stated that a copy of the same has been filed in Regular Suit No. 1557 of 2009 and a certified copy thereof was filed in the SCC Suit.
The injunction suit is pending wherein the agreement placed reliance upon was directed to be sent for a forensic report as regards the verification of the signature of the revisionist, which he had denied to be genuine. The forensic report found the signatures of the revisionist as fake.
Since reference of the agreement dated 20.06.2007 was made in the written statement and taken note of in the judgement impugned, an application under Order XLI Rule 27 was filed before this court in the revisional proceedings to take on record the forensic report in relation to the alleged agreement. The application was allowed by order dated 11.12.2005 and the same having remained unchallenged has attained finality, however, nothing turns on this evidence insofar as the summary proceedings are concerned.
At the time of hearing of the present revision, learned counsel for the revisionist referring to the order passed by this Court on 11.12.2015, urged that since a new piece of evidence has come on record which would require scrutiny with due opportunity to the opposite party, therefore, the case may be remitted back to the court below.
The prayer made by the learned counsel for the revisionist was strongly opposed by the learned counsel for the opposite party according to whom additional evidence, even if taken on record, cannot be read in the proceedings so as to unsettle any finding of fact recorded by the court below, inasmuch as, such a course is impermissible while exercising revisional jurisdiction by this Court. Learned counsel for the opposite parties in support of his contentions cited the following rulings:
1. Laxmi Kishore and another v. Har Prasad Shukla, ARC 1981 Pg. 545;
2. Reserve Bank of India through the Governor v. Ram Kumar, AIR 1963 Pg. 575;
3. Pooran Chand Seth v. Prabhat Kunwar, AIR 1979 Alld. 58;
4. Smt. Mithlesh Kumari v. IInd Additional District Judge, Kanpur and others, ARC 1982 Pg. 33;
5. Ravindra Nath Shivhare and others v. IV Addl. District Judge, Banka and others, ARC 1981Pg. 257;
6. Smt. Qaisari Begum v. Munney and another; ARC 1981 Pg. 291;
7. Babu Ram v. Additional District Judge, Dehradun and another, AIR 1983 Alld. Pg. 170;
8. The Oriental Fire and General Insurance Co. Ltd. v. Shrimati Chandrawati and others, AIR 1983 Alld. 174;
9. Ramji Dayawala and Sons (P.) Ltd. v. Invest Import, (1981) 1 SCC 80; and
10. Idandas v. Anant Ramchandra Phadke, (1981) 1 SCC 27.
It was further argued that once the agreement and its validity has become a subject matter of dispute in the injunction suit i.e. Regular Suit No. 957 of 2009 pending before the civil court, this Court would not go into the effect of the forensic report in the summary proceedings even if the report has come to be filed by way of an additional evidence.
Discussion ''Bharat' our country, is governed by rule of law. The institution of tenancy is well founded in this country and the immovable properties for that purpose are governed under various laws. A citizen of this country has every right to acquire and possess immovable property on the basis of a valid transaction. The title and possession, however, is bound to be legitimate and defined under law. An owner/landlord has a right to terminate tenancy of a lessee and seek his eviction through the process of law. The disputes with respect to immovable properties in the nature of building for eviction and arrears of rent/compensation for the use and occupation of that building are triable by the court of Judge Small Causes. Section 15(1) read with Article 4 Schedule II of Provincial Small Causes Court Act, 1887 in its application to Uttar Pradesh provide as under:
"15. Cognizance of suits by Courts of Small Causes.-- (1) A Court of Small Causes shall not take cognizance of the suits specified in the Second Schedule as suits expected from the cognizance of a Court of Small Causes.
(2) .....
(3) ....
"Article 4. A suit for the possession of immovable property or the recovery of an interest in such property.
STATE AMENDMENT Uttar Pradesh. -- In the Second Schedule to the principal Act, for Article 4 the following article shall be substituted namely :
"(4) a suit for the possession of immovable property or for the recovery of an interest in such property, but not including a suit by a lessor for the eviction of a lessee from a building after the determination of lease, and for the recovery from him of compensation for the use and occupation of that building after such determination of lease.
Explanation. -- For the purposes of this Article, the expression building means a residential or non-residential roofed structure, and includes any land (including any garden), garges and out-houses, appurtenant to such building, and also includes any fittings and fixtures affixed to the building for the more beneficial enjoyment thereof.:"
Learned counsel for the revisionist taking this Court through the judgement passed by the court below, has argued that it was incumbent upon the court below to have set out the points of determination keeping in view the provisions of Order XX Rule 4 CPC so that the evidence led by the parties was duly analyzed and appreciated to support or reject the contentions.
The case at hand speaks of no doubt about the ownership of the revisionist. It is, however, for the opposite party to establish his prima facie right to be treated somebody other than a tenant/lessee and for that purpose, burden of proof shifts on him, the revisionist has argued.
It is true that the Code of Civil Procedure in its entirety does not apply to the proceedings under Provincial Small Causes Court Act, but in a case where there is a situation of blatant denial of landlord-tenant relationship by claiming altogether new and rights title in the property let out or otherwise, the points of determination assume significance for the purposes of appreciating evidence led by the parties. For ascertaining the prima facie title and relationship, it would be necessary to go into such an aspect so as to overcome the stand of landlord/owner. It is well settled that summary trial can go into the question of title, prima facie, if it is incidental to the issues involved in a case. Suffice it to say that the apex court decision reported in AIR 2001 SC 1 (Shamim Akhtar v. Iqbal Ahmad & another) lends complete support to the above proposition.
Section 49 of the Registration Act specifically provides that a document in relation to immovable property unless registered would not be admissible in evidence. The delivery of possession according to the own showing of the opposite party took placed on the payment of Rs. 50,000/- whereas the stand of the revisionist is that the house was rented out to the respondent who has paid rent from April, 2006 to January, 2007.
The landlord-tenant relationship was sought to be proved by the revisionist placing reliance upon the rent receipts as well as oral evidence of his own on affidavit and two witnesses Deewan Singh and Surya Pal Singh who were also cross examined. The evidence of the revisionist was not believed because he could not prove the rent receipts due to some deficiency whereas the evidence of two other witnesses was not believed because the receipt of advance rent as per the version of two witnesses was paid at two different places, hence the statements were found to be contradictory and were disbelieved. The oral evidence of the two witnesses i.e. PW-2 and PW-3 is thus significant and deserves to be discussed.
The court below has clearly recorded that PW-2 in his examination-in-chief/cross-examination has deposed that he facilitated the respondent to take the house on monthly rent of Rs. 1000/- and the initial advance rent for three months was paid by the respondent of which the rental receipt he does not remember whether the same was printed or handwritten but the receipt was delivered to the respondent at his residence and there was no written agreement of tenancy. The witness also deposed that he was not aware of the arrears of rent having fallen due, if any. PW-3 also deposed in his cross-examination that the house was settled on rent and receipt of advance rent of three months was issued to the tenant after taking of rent. The inference of conflict derived by the trial court between the two versions of cross examination is superfluous inasmuch as both the witnesses have duly proved the settlement of accommodation on rental basis and PW-3 has merely deposed about the issuance of rental receipt without making any reference to the place. The trial court having ignored the essence of settlement has rather proceeded to lay more emphasis on the place where rental receipt was delivered.
The court below while construing the evidence of witnesses has lost sight of two relevant aspects; firstly, that the possession was facilitated through Deewan Singh on the basis of an intention of revisionist to let out and occupy the accommodation on rent but not on the basis of any payment of Rs. 50,000/- and secondly, the payment of Rs. 50,000/- was not proved at all through oral evidence that may have led the court below to take a definite view on the non-existence of landlord-tenant relationship. No other intention except that of letting out the house could be concluded by the trial court, once it was not proved that Rs. 50,000/- were paid by the opposite party to the revisionist. The trial court having misdirected its approach to arrive at a correct finding has thus, committed a manifest error of law and the matter requires re-examination of evidence on both these aspects of the matter.
Even in a situation where the title of a party is no more than a licencee, the relief for eviction can be granted in regular proceedings and this position is well settled in the case of Bhagwati Prasad vs Shri Chandramaul reported in (1966) 2 SCR 286 and reference may be made to Paras 14 and 15 of the said judgement which are extracted hereunder:
14. In support of its conclusion that in a case like the present a decree for ejectment can be passed in favour of the plaintiff, though the specific case of tenancy set up by him is not proved, the High Court has relied upon the two of its earlier Full Bench decisions. In Abdul Ghani v. Musammat Babni (I.L.R. 25 All. 256.), the Allahabad High Court took the view that in a case where the plaintiff asks for the ejectment of the defendant on the ground that the defendant is a tenant of the premises, a decree for ejectment can be passed even though tenancy is not proved, provided it is established that the possession of the defendant is that of a licensee. It is true that in that case, before giving effect to the finding that the defendant was a licensee, the High Court remanded the case, because it appeared to the High Court that that part of the case had not been clearly decided. But once the finding was returned that the defendant was in possession as a licensee, the High Court did not feel any difficulty in confirming the decree for ejectment, even though the plaintiff had originally claimed ejectment on the ground of tenancy and not specifically on the ground of licence. To the same effect is the decision of the Allahabad High Court in the case of Balmakund v. Dalu (I.L.R. 25 All. 498.).
15. It is hardly necessary to emphasise that in a matter of this kind, it is undesirable and inexpedient to lay down any general rule. The importance of the pleadings cannot, of course, be ignored, because it is the pleading that lead to the framing of issues and a trial in every civil case has inevitably to be confirmed to the issues framed in the suit. The whole object of framing the issues would be defeated if parties allowed to travel beyond them and claim or oppose reliefs on grounds not made in the pleadings and not covered by the issues. But cases may occur in which though a particular plea is not specifically included in the issues, parties might know that in substance, the said plea is being tried and might lead evidence about it. It is only in such a case where the Court is satisfied that the ground on which reliance is placed by one or the other of the parties, was in substance, at issue between them and that both of them have had opportunity to lead evidence about it at the trial and the formal requirement of pleadings can be relaxed. In the present case, having regard to all the facts, we are unable to hold that the High Court erred in confirming the decree for ejectment passes by the trial Court on the ground that the defendant was in possession of the suit premises as a licensee. In this case, the High Court was obviously impressed by the thought that once the defendant was shown to be in possession of the suit premises as a licensee, it would be built to require the plaintiff to file another suit against the defendant for ejectment on that basis. We are not prepared to hold that in adopting this approach in the circumstances of this case, the High Court can be said to have gone wrong in law."
Conclusion The Court below has clearly misconstrued the evidence on record. Moreover, having refrained from entering into the prima facie title of the respondent as an incidental issue, though permissible to be looked into, as is well settled, has committed a material irregularity. Such an approach defeats the purpose and object of the laws of tenancy and is against the public policy. Law envisages a remedy and protection both. The remedy of eviction should not fail on the bald assertion that the opposite party has denied himself to be a tenant. Only a valid, prima facie, title would defeat the remedy of eviction. Once there was oral evidence of two witnesses who in their examination-in-chief and cross-examination had deposed clearly about the house being let out on rent and this aspect of the matter being independent of the default as regards payment of rent, ought to have weighed in the light of evidence on record and failure to delve into this aspect of the matter has clearly resulted into miscarriage of justice.
All these aspects of the matter have not been gone into by the court below, therefore, Court is of the considered opinion that the judgement impugned being legally unsustainable and miscarriage of justice being apparent, calls for interference under Section-25 of the Provincial Small Causes Court in the interest of justice. Suffice it to say, that in a situation of prima facie title being proved, the suit can be returned under Section 23 for being presented before the regular court.
Accordingly, the revision is allowed, the impugned judgement is set aside and the matter is remitted for a fresh decision on the issues involved. The record summoned may be returned and the parties shall appear before the court below on 15.11.2016.
The court below is directed to conclude the proceedings expeditiously and preferably within a period of six months in accordance with law.
No order as to cost.
Order Date :- Nov. 07, 2016 Fahim/-
Case :- S.C.C. REVISION No. - 1 of 2014 Hon'ble Attau Rahman Masoodi,J.
The revision is allowed vide order of date on separate sheets.
Order Date :- Oct. 07, 2016 Fahim/-