Court No. - 5
Case :- S.C.C. REVISION No. - 72 of 2019 Revisionist :- Parvez And Another 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- revisionists and Sri Amit Kumar, learned counsel for the plaintiff- respondent.
2- This revision has been filed praying to set aside the judgment and decree dated 18.05.1990 in S.C.C. Suit No.03 of 2017 ( Anwar Hussain v. Parvez and Smt. Shahida Khatoon). According to the plaintiff-respondent, he purchased the disputed property situate in Mohalla Maqbara Doyam (Mohalla Maqbara-2), City Moradabad from its erstwhile owners Shaqir Hussain and others. The area of the disputed property is 245.18 Sq. Mts. The defendant-respondent is in occupation of a portion of the said house.
3- After purchase of the aforesaid property by a registered sale- deed dated 9.1.2015, the plaintiff-respondents sent a notice dated 11.11.2016, whereby he terminated the tenancy and demanded arrears of rent for 22 months. This notice was followed by another notice dated 25.11.2016, which was served by refusal. Since, the defendant-revisionists neither vacated the portion occupied by them nor paid the arrears of rent, therefore, the plaintiff- respondent filed S.C.C. Suit No.03 of 2017. Despite service of notice, the defendant-revisionists did not file written statement. Therefore, the court below proceeded exparte vide order dated 4.9.2017. The suit was decreed exparte by judgment and decree dated 2.5.2018. Thereafter, the defendant-revisionists filed a Recall Application on 3.10.2018, which was allowed by the court below by order dated 28.3.2019 and the exparte judgment and decree dated 2.5.2018 was set aside and the suit was restored to its original number. Thereafter, the defendants-revisionists filed a written statement on 17.4.2019 in which they took the plea that there is no landlord-tenant relationship between the plaintiff and the defendants and the house in question is different from that which was purchased under the alleged sale deed dated 9.1.2015. They also stated that the plaintiff is not the owner and landlord of the disputed property. Neither he took possession on the spot nor Shaqir Hussain etc. (vendor) were ever in possession of the disputed property. The plaintiff-respondent filed Paper No.7C/1 to 16 as examination-in-chief which supports the plaint case. He was cross examined by the learned counsel for the defendants. The defendants filed their examination-in-chief in which they supported the averments made in the written statement.
4- The defendant-revisionist no.1 examined as DW-1. He was also cross-examined. In his examination/Cross-examination, the defendant-revisionist took entirely different stand. DW-1 stated that he is the owner of the disputed property, which was purchased by his father. Despite being asked he could neither produce any documentary evidence showing his title to the property nor could disclose any material particulars with respect to such documents on the basis of which it may be inferred that his father had purchased the disputed property. Thus, the defendant- revisionists denied the title of the plaintiff-respondent with respect to the disputed property.
5- A Civil Misc. Application No.5 dated 2.7.2019 supported by an affidavit of Anwar Hussain has been filed annexing therewith proof of electricity connection and some payment receipts issued by Pashchimanchal Vidyut Vitran Nigam Ltd., Meerut and a bill of house tax for the financial year 2015-16 issued by Nagar Nigam, Moradabad in the name of Farukh, son of Ali Baksh. Even along with this application the defendant-revisionists has not filed any document which may indicate that the defendant-revisionist is the owner of the disputed property.
6- On 7.8.2019, this revision was heard at length and after noting the submission of the learned counsel for the defendant- revisionists in paragraph no.5, the defendant-revisionists were directed to file an affidavit on three questions. Paragraph Nos. 5 to 8 of the order dated 7.8.2019 are reproduced below:
6- Learned counsel for the defendant-revisionists submits that he was nor afforded sufficient opportunity by the court below to file documentary evidences to establish his case that he is the owner of the disputed property. He submits that S.C.C. suit was decided hurriedly which resulted in denial of principles of natural justice. Therefore, the impugned judgment deserves to be set aside and an opportunity needs to be afforded to the defendant-revisionists.
7- On the aforenoted submission, this Court specifically asked the learned counsel for the defendant-revisionists to answer the following questions:
(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 ?
(iii) Whether to establish prima-facie, that the disputed property was purchased by the father of the defendant-revisionists, a copy of such sale-deed can be filed before this Court ?
8- In response to the aforesaid question, learned counsel for the defendant-revisionists states that the defendant-revisionists shall file an affidavit before this Court replying the aforesaid questions and shall also file therewith a copy of sale-deed for purchase of the house by his father.”
7- The aforesaid S.C.C. Revision was adjourned on 19.8.2019. Despite order dated 7.8.2019, the defendant-revisionists have filed an affidavit. Therefore, this revision is being finally heard.
SUBMISSIONS:-
8- Learned counsel for the defendant-revisionists submits as under :
(i) The plaintiff-respondent could not lead any evidence of landlord-tenant relationship between plaintiff-respondent and the defendant-revisionists.
(ii) In the sale-deed, whereby the plaintiff-respondent has purchased the disputed property on 9.1.2015, there is no mention that the defendant-revisionists are the tenants.
(iii) The description of the property given in the sale-deed is different from the property mentioned in the plaint.
9- Learned counsel for the plaintiff-respondent submits as under:
(i) The submission made on behalf of the defendant- revisionists are based on falsehood. The defendant- revisionists are not the owner of the disputed house. They were tenants and their tenancy came to an end on account of default in payment of rent. Consequently, tenancy has been terminated.
(ii) Copy of the sale-deed was also provided by the plaintiff-respondent to the defendant-tenants/revisionists, but they remained silent and defaulted in payment of rent even after notice.
(iii) The impugned judgment has been passed by the court in accordance with law and it does not suffer from any infirmity.
DISCUSSION AND FINDINGS:-
10- I have carefully considered the submissions of the learned counsels for the parties.
11- There is no dispute that Shaqir Husain and others were the owners of the disputed house, which was purchased by the plaintiff-respondent by registered sale-deed dated 9.1.2015. Despite specific order dated 7.8.2019 passed by this Court asking the defendant-revisionists to file an affidavit on three points, as aforequoted, but no affidavit has been filed. Learned counsel for the revisionists has admitted that the defendant-revisionists have no sale-deed in their favour. The facts as briefly noted above, also show that in their written statement, the defendant-revisionists have not stated or claimed themselves to be the owner of the disputed house. The ownership was alleged by the defendant-revisionist in his examination, but he could not produce any evidence either before the court below or before this Court to show his ownership rights over the disputed house. Under the circumstances, the stand taken by the defendant-revisionists and the submission made on their behalf before this Court, is wholly false and based on no evidence.
12- A Civil Misc. Application No.3 of 2019 dated 2.7.2019 supported by an affidavit has been filed by the defendant- revisionist filed for admitting certain documents in additional evidence. In paragraph-14 of the affidavit accompanying the aforesaid application for additional evidence, the defendant- revisionists have described the papers of additional evidence and stated as under:
“14. That the revisionists are bringing on record the following original documents to establish their rightful ownership and possession over the property in dispute in the capacity of owners/co-owners:
I. Receipt pertaining to deposit of electricity charges, dated 21.01.2015, in relation to the house in dispute, mentioning the name of the defendant-revisionist no.2, which is being annexed herewith and marked as Annexure No.1 to this affidavit.
II. Meter Ceiling Certificate dated 24.01.2015 issued by the Electricity Urban Distribution, Division- 3rd, Moradabad concerning the Service Connection No.305254, which is being annexed herewith and marked as Annexure No.2 to this affidavit.
III. Demand bill/notice of house tax pertaining to Financial Year 2015- 16 dated 13.07.2015 issued by the Municipal Corporation, Moradabad, which is being annexed herewith and marked as Annexure No.3 to this affidavit.
IV. Payment receipts of electricity charges dated 09.04.2016, 11.11.2016, 14.12.2016, 14.01.2017, 15.03.2017, 11.07.2017, 25.08.2017, 27.11.2017, 22.09.2018 and 30.04.2019 and others pertaining to the house in dispute, which are being collectively annexed herewith and marked as Annexure No.4 to this affidavit.
V. A copy of the certified copy of the assessment order/Account Statement issued by the Nagar Nigam, Moradabad pertaining to the house in dispute regarding name of the husband of the defendant- revisionist no.2 and father of the defendant-respondent no.1, which is being annexed herewith and marked as Annexure No.5 to this affidavit.”
13- These papers filed in additional evidence, namely, the electricity dues payment receipt dated 21.1.2015, Meter Ceiling Certificate dated 24.1.2015 (Annexure-2), Electricity charges payment receipts (Collectively filed as Annexure-4) are in the name of the defendant-revisionist No.2, Saeeda Khatoon. Annexure-3 is the bill/notice issued by Nagar Nigam, Moradabad for Financial Year 2015-16 in which the name of Farukh is shown. Annexure-5 is the Account Statement issued by Nagar Nigam, Moradabad in respect to the disputed house in which name of Farukh is shown. All these papers are not evidences of title. In Annexures No.3 and 5 Municipal tax bill and account statement, being the description of property is shown as “MAKBARA-2, MORADABAD”. In Annexure No.2, Meter Ceiling Certificate, the address of the disputed house is shown as “KATGHAR HAZEER NEAR HAZIRE WALI MASJID, GATTA FACTORY KE AAGE, MORADABAD”. Thus, one and the same house i.e., the disputed house is admittedly described as Makbara-2, Moradabad or as “KATGHAR HAZIRE WALI MASJID, MORADABAD”.
14- In the sale-deed, whereby the plaintiff-respondent purchased the disputed house, the address is shown as “MAKBARA-2, MORADABAD”. Therefore, as per own showing of the defendant-revisionists, the disputed house is the same house which was purchased by the plaintiff- respondent.
15- Another revision being S.C.C. Revision No.71 of 2019 (Khalil Ahmad v. Anwar Hussain), which relates to a portion of the disputed house and involves similar dispute on similar set of facts, also discloses that in the disputed house a business in the name of M/s. Mujeeb International was being run as per certificate of registration and Allotment of TIN the address shown is “KATGHAR BEACH HAZIRE WALI MASJID, MORADABAD”.
Thus, it is evident that the disputed house is the same house of which a portion is occupied by the defendant-revisionists. Therefore, the submission of the learned counsel for the revisionists on the basis of these papers filed in additional evidence that the revisionists are the owner of the disputed house, is wholly baseless.
16- The submission of the learned counsel for the defendant- revisionists that the disputed property is different from the property purchased by the plaintiff-respondent, is also wholly baseless and totally misleading. Copy of the sale-deed dated 9.1.2015 shows that the defendant-revisionists purchased house situate in mohalla “Makbara Doyam, City and District Moradabad”. The house tax bill of the financial year 2015-16 issued by Nagar Nigam, Moradabad, filed to the application for additional evidence, is also with respect to the house situate in mohalla “Makbara-2 (15), Moradabad”. In Certificate of Registration and Allotment of TIN to M/s. Mujeeb International, the address and the place of business of the firm is shown as “KATGHAR BEACH HAZIRE WALI MASJID, MORADABAD”. In paragraph-15 (vi) of the affidavit accompanying the application for additional evidence, the defendant-revisionists has described that the aforesaid certificate of Registration and Allotment of TIN dated 11.8.2008 relates to the business of the revisionists from the property in dispute. In paragraph-15 (iii) of the affidavit he described the house tax bill/notice dated 30.1.2016 (filed as Annexure-3) relates to the disputed property.
17- Thus, according to own case set up by the defendant- revisionists, the house described as “Makbara-2(15), Moradabad and the house described as “KATGHAR BEACH HAZIRE WALI MASJID, MORADABAD” are one and the same house, which is the disputed house. In his plaint the plaintiff-respondent has described the disputed house situated in mohalla “Makbara Doyam, City and District Moradabad” purchased by him by a registered sale deed dated 9.1.2015. Thus, as per own case of the defendant-revisionists, the disputed house is the same house which was purchased by the plaintiff-respondent, which is in occupation of the defendant-revisionists. Despite opportunity afforded by this Court by order dated 7.8.2019, the defendant- revisionists could not file any evidence to establish even prima- facie, that they are owner of the disputed house.
18- In the impugned judgment, the court below has considered the submission of the defendant-revisionists on the point of allegation of ownership of the defendant-revisionists and the landlord- tenant relationship between the plaintiff-respondent and the defendant-revisionists and held as under:
“On the other hand, the defendants, in their W.S., Paper no. 66/C/2/1, in para no.13 & 14 have denied themselves to be the tenants of the plaintiff at the monthly rent of Rs.3000/-, and have also claimed that the vendor of the registered sale-deed dated 09.01.2015 Shakir Hussain and others, were neither owners of the disputed house nor they had any right to execute the sale deed. Further, in para no.18 of their W.S., defendants have also denied any relationship of landlord and tenant in between the plaintiff and defendants. They have also denied the existence of the disputed house at the place, shown in the sale-deed, and in the plaint map, but it is astonishing to note that the defendants have not set up any title over the disputed house, in their W.S., instead D.W.-1, defendant Parvez, in his cross-examination page no.72/C/2, in the beginning has stated, that- “..He is residing in the disputed house. He is residing in the disputed house since his birth and till now. His father was also residing in the disputed house. His father had died. The disputed house is his own. His father had purchased the disputed house, but he does not remember as to when his father had purchased the disputed house. Even he has not seen any sale deed in this regard, nor any such sale deed has been filed by him on the record..”
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 defendants in their W.S., have denied the existence of disputed house on the spot, as shown in the plaint and the sale- deed dated 09.01.2015, but in this 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 defendants are residing in the disputed house, if they have failed to set up their own title over it, or to produce any documentary evidence, as a source of their title over the disputed house, therefore, only inference would be drawn that the defendants and their 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 dated 09.01.2015, when he purchased the disputed house. Hence, the denial of relationship of landlord and tenant by the defendants with the plaintiff, is found to be untrustworthy and a fiction of their mind.
Ld. Counsel for the defendants has cited the case law :- 2018(3)ARC 822, Hon'ble High Court, Sukhdev Prasad vs. Smt. Neelam Singh and Ors., 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 defendants having been in possession in the disputed house in the capacity of a tenant, hence, the presumption of tenancy against the defendants 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 defendants have not set up any title and ownership over the disputed house, instead they are claiming to be residing in the disputed house since the time of their father, and no source of acquisition of title has been pleaded by them in their 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 defendants are 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 defendants. Hence, it is held that the benefit of the law propounded in this case law, can not be extended to the defendants, and from the ambiguous pleadings of the defendants, it shows their intention to grab the disputed house, which the Court will never permit.
Therefore, it is held that the defendants are 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.”
19- The aforequoted findings recorded by the court below are the findings of fact based on consideration of relevant evidences on record. The defendant-revisionists has completely failed to point out any perversity or illegality in the aforesaid findings of fact. Therefore, the findings of fact cannot be interfered with in revisional jurisdiction under Section 25 of Provincial Small Cause Courts Act, 1887.
20- Since, the plaintiff-respondent is the landlord and the defendant-revisionists are the tenant of the disputed house and since, undisputedly, the defendant-revisionists have not paid rent to the plaintiff-respondent for the period from 9.1.2015 to 18.11.2016 despite demand and issuance of notice, therefore, the default in payment of rent is proved. Neither any perversity or infirmity could be pointed out nor it has been argued before me that the findings of fact recorded in the impugned judgment suffers from any perversity. Therefore, I do not find any good reason to interfere with the findings of fact on the point of default in payment of rent by the defendant-revisionists to the plaintiff-respondent. The findings recorded by the court below on Point nos. 3,4 and 5 have not been questioned before me. Therefore, these findings are also upheld.
21- For all the reasons aforestated, I do not find any merit in this revision. Consequently, the revision fails and is hereby dismissed.
Order Date :- 21.8.2019 Ak/