Court No. - 5
Case :- S.C.C. REVISION No. - 71 of 2019 Revisionist :- Khalil Ahmad Opposite Party :- Anwar Hussain Counsel for Revisionist :- Kshitij Shailendra Counsel for Opposite Party :- Amit Kumar
Hon'ble Surya Prakash Kesarwani,J.
1- Heard Sri Kshitij Shailendra, learned counsel for the defendant-revisionist and Sri Amit Kumar, learned counsel for the plaintiff-respondent.
2- On 7.8.2019, this revision and another S.C.C. Revision No.72 of 2019 relating to another portion of the same house and involving similar facts and dispute were heard at length. A detail order was passed on 7.8.2019 in S.C.C. Revision No.72 of 2019.
3- In the present revision, the following order was passed on 7.8.2019:
“Heard Sri Kshitij Shailendra, learned counsel for the defendant- revisionist and Sri Amit Kumar, learned counsel for the plaintiff-respondent.
The facts of the present case and the submission made by the learned counsel for the defendant-respondent are similar to those as have been noted in S.C.C. Revision No.72 of 2019. In an order passed today in S.C.C. Revision No.72 of 2019, this Court required the defendant-revisionist to answer three questions for which he sought time to reply by means of an affidavit and also to file a copy of the sale-deed, whereby his father had purchased the disputed property.
Learned counsel for the defendant-revisionist submits that in this revision, the defendant-revisionist has stated in his cross-examination before the court below, that he is the owner of the disputed house. However, he could not file any proof of ownership.
In view of the above submission, the defendant-revisionist is directed to file an affidavit annexing therewith copy of title-deed/proof of ownership of the disputed house. He shall also answer to question nos. 1 and 2, as has been framed in the order passed today in S.C.C. Revision No.72 of 2019.”
As prayed, put up on 19.8.2019 in the additional cause list.”
4- By order dated 7.8.2019 passed in S.C.C. Revision No.72 of 2019, this Court framed three questions as under:
“(i) Whether the defendant-revisionists have set up a case in their written statement that they are the owner of the disputed property ?
(ii) Whether the defendant-revisionists have filed any documentary evidence in support of the statement made in examination-in-Chief or Cross Examination that they are the owner of the disputed property ?”
5- Despite specifically asked by the aforequoted order dated 7.8.2019 and further time granted on 19.8.2019, the defendant- revisionist has neither filed proof of ownership nor an affidavit of compliance.
6- Learned counsel for the defendant-revisionist submits that the submission as made in S.C.C. Revision No.72 of 2019, may be treated as submission made in the present revision also. He submits that he does not want to make any further submission except those made in S.C.C. Revision No.72 of 2019.
7- Learned counsel for the plaintiff-respondent also submits that his submission as noted in the order passed today in S.C.C. Revision No.72 of 2019, may be treated as his submission in the present revision.
DISCUSSION AND FINDINGS:-
8- I have carefully considered the submissions of the learned counsels for the parties.
9- It is admitted by learned counsels for the parties that the disputed house in the present S.C.C. Revision and in S.C.C. Revision No.72 of 2019 is one and the same. They also admit that the facts of the present case and the evidences are also similar and the only difference is that the defendant-revisionist of the present revision and the defendant-revisionists of S.C.C. Revision No.72 of 2019 have occupied different portion in one and the same house.
10- In the impugned judgment passed in S.C.C. Suit No.02 of 2017 passed by the Court of Additional District Judge (Court No.1), Moradabad, the findings of fact on point nos.1 and 2 has been recorded as under:
“Point No.1:- The burden of proving this fact lies upon the plaintiff and in this context plaintiff in his plaint has stated that he had purchased the disputed house having its area of 245.18 Sq. meter, situated in Mohalla Maqbara Doyam, Moradabad, through registered sale deed dated 09.01.2015 from one Shakir Hussain and his brothers Shahid Hussain, Zahid Hussain and Hamid Hussain and sisters and it has also been averred by the plaintiff in his plaint that that defendant is residing in the disputed house shown in Sch. “Kha”, which is a part of the house shown in Sch. “A” of the plaint at the monthly rent of Rs.3,000/-.
Plaintiff in support of his plaint case, has filed certified photostat copy of the registered sale deed dated 09.01.2015, as paper no.6/C/1-16 with the list 5/C/1, from which the claim of the plaintiff is established that he has purchased the disputed house through registered sale-deed dated 09.01.2015, executed by its owner Shakir Hussain and others.
Ld. counsel for the defendants has cited the case law:-
ARC 1998(2) Page 517 Supreme Court, Dr. Gurumukh Ram Madan vs. Bhagwan Das Madan, wherein it has been laid down by the Hon'ble Apex Court in reference to Section 65(f) of the Indian Evidence Act, that- “Since the sale-deed is not a public document, its certified copy is not admissible, unless an explanation is given in support of non-availability of original sale deed ”
But from the perusal of fact of that case, it reveals that there, the very execution of sale-deed itself, was challenged and disputed. Hence, for the proof of its genuineness, the filing of original sale- deed, was thought mandatory. Whereas in the instant case, registered sale-deed dated 09.01.2015 upon which the plaintiff claims his ownership over the disputed house, has not been challenged or disputed by its vendor Shakir Hussain, his brothers and sister. Hence, benefit of the ratio laid down by the Hon'ble Apex Court, in this case law, cannot be extended to the defendant and it is held that plaintiff is owner and landlord of the disputed house, on the basis of the sale-deed dated 09.01.2015.
Contrary to it, the Hon'ble Allahabad High Court, in the case of Jaspal Lala Shiv Narayan vs. Alla Tala Malik Waqf Ajkhan, decided by the Hon'ble Court in the year 200, has held that - “. In view of Section 107, the Transfer of Property Act, there is no distinction between a written agreement of tenancy and oral agreement of tenancy ”
Hence, the argument advanced by the learned counsel for the defendant has no force.
On the other hand, the defendant Dr. Khalil-ur Rehman, in his W.S., paper no.73/C/2/1-8, in para no.13 & 14 has denied himself to be the tenant of the plaintiff at the monthly rent of Rs.3,000/- and has also claimed that the vendor of the registered sale-deed dated 09.01.2015 Shakir Hussain and Ors., were neither owners of the disputed house nor they had any right to execute the sale-deed. Further, in para no.18 of his W.S., defendant has also denied any relationship of landlord and tenant in between the plaintiff and defendant. He has also denied the existence of the disputed house at the place shown in the sale-deed and in the plain map, but it is astonishing to note that the defendant has not set up any title over the disputed house, in his W.S., instead as D.W.-1, defendant Dr. Khalil-ur Rehman, in his cross-examination at page no.80/C/5, in the beginning has stated that - “..He is residing in the disputed house since long. He is residing in the disputed house since his birth and till now. His father was also residing in the disputed house. The disputed house is his own. He does not know in whose name, the disputed house is registered in the revenue record. Neither his name is entered in the revenue record as owner of the disputed property, nor his father's name is entered as owner of the house. He has no paper of ownership of the disputed house, nor he has filed any such papers of ownership of the disputed house. The house in which he is residing, Amin did not come to take over possession of that house..”
So, looking to this statement, given by the defendant in his cross- examination, it is found that although in his cross-examination, defendant has claimed his title over the disputed house, but it is of no avail because he has not set up any such ownership over the disputed house in his W.S. It is further noteworthy that though the defendant in his W.S., has denied the existence of disputed house on the spot, as shown in the plaint and the sale-deed dated 09.01.2015, but in his cross-examination he has stated that he is residing in the disputed house, since the time of his father. Hence, it is a question for consideration by this Court, as to, in what capacity, the defendant is residing in the disputed house, if he had failed to set up his own title over it, or to produce any documentary evidence, as a source of his title over the disputed house, therefore, only inference would be drawn that the defendant and his father were residing in the disputed house in the capacity of tenant of the original landlord Shakir Hussain and others, the vendor of the plaintiff, and the plaintiff became subrogated as their landlord, since the date 09.01.2015, when he purchased the disputed house. Hence, the denial of relationship of landlord and tenant, by the defendant with the plaintiff, is found to be untrustworthy, and a fiction of his mind.
Ld. counsel for the defendant has cited the case law :- 2018(3)ARC 822, Hon'ble Allahabad High Court, Sukhdev Prasad vs. Smt. Neelam Singh and others, wherein the Hon'ble High Court has held that - “...Tenancy cannot be presumed in the absence of rent-deed, rent receipts and recital in the sale deed, which are basis of title...”
Ld. counsel, on the basis of this proposition of law has argued that since in the plaintiff's sale-deed dated 09.01.2015, there is no recital of the defendant having been in possession in the disputed house in the capacity of a tenant, hence, the presumption of tenancy against the defendant regarding the disputed house, cannot be raised.
But from the perusal of that case law, it is found that the facts of that case law, are different from the facts of the present case, because in the case cited, there was a dispute over the ownership of the disputed house, and both the parties have had set up a title of ownership over the disputed house, and the proceeding was of the original suit in that case. But in the instant case, it is a S.C.C. Suit, and the defendant has not set up any title and ownership over the disputed house, instead he has claiming to be residing in the disputed house since the time of his father, and no source of acquisition of title has been pleaded by him in his W.S., then due to mere fact that due to sheer negligence of the vendors of the plaintiff, that they did not recite in the sale-deed that the defendant is residing in the disputed house as tenant, would not be fatal for the plaintiff. Besides it, in Head Note-B of the case referred, it has been held by the Hon'ble High Court that it is not possible for the Court to record the finding of adverse possession in favour of a party, in the absence of any pleading, to that effect, which also goes against the defendant. Hence, it is held that the benefit of the law propounded in this case law, cannot extended to the defendant, and from the ambiguous pleadings of the defendant, it shows his intention to grab the disputed house, which the Court will never permit.
Therefore, it is held that the defendant is residing in the disputed house in the capacity of tenant and plaintiff became owner and landlord of the disputed house, since the execution of sale-deed dated 09.01.2015 in his favour.
Point No.1 is decided accordingly.”
Point No.2 :- This point relates to the fact that whether any default has been committed by the defendant in payment of monthly rent of Rs.3,000/- to the plaintiff? The burden of proving this point also lies upon the plaintiff, regarding which in para no.4 and 5 of the plaint, plaintiff has stated that the defendant has not paid the monthly rent to him for the period of 22 months from 09.01.2015 to 18.11.2016, hence, he has committed default in payment of monthly rent and defendant is in arrears of payment of Rs.66,000/- as rent to be due against him.
Whereas the defendant in para no.16 of his W.S., has stated that the plaintiffs is not in possession over the disputed house, neither he is owner of the disputed house on the basis of sale-deed dated 09.01.2015, and plaintiff had not ever demanded any amount of rent from the defendant, nor any amount of rent from dated 09.01.2015 to 08.11.2016 for 22 months i.e. Rs. 66,000/-, is due against him. Further, in para no.19 and 20, defendant has also reiterated the same fact.”
Whereas, DW-1, defendant Dr. Khalil-ur Rehman, in his cross- examination in para no.2 has stated that - “...The house in which he is residing, plaintiff Anwar Hussain, never demanded any rent for the same from him nor any notice of Anwar was received by him...” Therefore, from his own admission of the defendant in his W.S., and the statement given by DW-1 Dr. Khalil-ur Rehman, in his cross-examination, it is held that the defendant had not paid any amount of rent to the plaintiff ever since the date 09.01.2015. Therefore, the defendant has committed default in payment of rent for 22 months of Rs.66,000/- to the plaintiff and the plaintiff is entitled to get damages for unauthorized use and occupation of the disputed house by the defendant @ Rs100/- per day, though, plaintiff has claimed damages @ Rs.200/- per day, but the monthly rent has been claimed by the plaintiff as Rs.3,000/- per month, so, plaintiff is entitled to recover damages @ Rs.100/- per day.
Point No.2 is decided accordingly.
Point No.3 :- The burden of proving this point also lied upon the plaintiff and in this regard, from the perusal of plaint, it reveals that the plaintiff in para no.6 of his plaint, has stated that he has served a registered notice upon the defendant on dated 25.11.2016 through his counsel, terminating his tenancy, and demanding the amount of arrears of rent of Rs.66,000/-. In support of his case, plaintiff has filed as paper no.10/C/1 copy of registered notice dated 25.11.2016 and its postal receipt regarding registered postal letter no. RU 468475615, in as paper no.11/C/C and copy of registered notice dated 11.11.2016, paper no.7/C/1 its postal reeipt regarding registered postal letter no.RU 468456939, in paper no.8/C/1 and the registered postal envelopes along with registered A/D of defendant Khalil Ahmad, as paper no.9/C/1 and 12/C/1. While both these registered postal envelopes have been returned with the endorsement of “refusal” and “Not available on repeated visits”, whereas earlier registered postal letter dated 11.11.2016 had also been returned with the same endorsement. Hence, it is held that the notice was deliberately avoided by the defendant. Therefore, plaintiff has rightly terminated the tenancy of the defendant from the disputed house by serving these valid notices, and the tenancy of the defendant from the disputed house shall be deemed to have been terminated from 29.11.2016, the date of its refusal, and, thereafter, the defendants became the illegal and unauthorized occupants of the disputed house.
Point No.3 is decided accordingly.”
11- The findings recorded by the court below on the point nos. 1,2 and 3 are findings of fact based on consideration of relevant evidences on record. Neither any perversity in these findings of fact could be pointed out by the revisionist nor it has been argued before me that these findings of facts suffer from perversity. Therefore, the findings recorded by the court below on the point nos.1,2 and 3 being findings of fact are upheld and cannot be interfered with in revisional jurisdiction under Section 25 of Provincial Small Cause Courts Act, 1887. The findings recorded by the court below on the Point Nos. 4 and 5 have neither been questioned nor disputed before me. Therefore, the findings recorded by the court below on the point Nos.4 and 5 are also upheld.
12- For all the reasons aforestated, I do not find any merits in this revision. Consequently, the revision fails and is hereby dismissed.
Order Date :- 21.8.2019 Ak/