By means of the present revision, the revisionist is challenging the order dated 17th May, 2011, passed by the Judge, Small Causes Court, Ghaziabad by which he has decreed the suit filed by the plaintiff-landlord and directed the revisionist to vacate the premises in dispute within two months, pay the rent at the rate of Rs.3,00/= per month from December, 2000 to December, 2003 alongwith the interest at the rate of Rs. 9% per annum and also pay the damages.
The revisionist is a tenant in a room of the building numbered as B-13, Lohia Nagar, Ghaziabad since 1993. The half portion of the said premises was owned by Smt. Meena Rani, the plaintiff and the other half portion was owned by her husband, late Sri Naveen Kumar. Sri Naveen Kumar died on 23rd February, 2003. It appears that Sri Naveen Kumar executed a will in respect of his half share in favour of his wife, Smt. Meena Rani. Smt. Meena Rani has given a notice dated 7.10.2003, under Section 106 of the Transfer of Property Act through her counsel to the revisionist stating therein that she is the owner of the entire property in dispute and the rent since 1.8.2000 has not been paid, despite repeated demands. It has also been stated that since 1993, the rent was at the rate of Rs.1,200/= per month. The revisionist paid the rent jointly to her and her husband up to 31.7.2000. The revisionist has given reply on 1.11.2003 through his counsel. The period of three months has expired on 8.1.2003. When the revisionist could not pay the arrear of rent and has not vacated the premises in dispute, the plaintiff-respondent filed the suit for eviction, arrears of rent and damages being Suit No. 32 of 2003. The Rent Control Act does not apply as the property in dispute was constructed in the year 1990.
The revisionist contested the suit. He contended that he was a tenant in the property in dispute since 1992 of which late Sri Naveen Kumar was the exclusive owner; Sri Naveen Kumar taken a sum of Rs.45,000/= towards the security and executed a rent deed for 65 years, which was registered; no receipt for Rs.45,000/= has been given; the room was given on rent at the rate of Rs.100/= per month; for the period 7.8.2000 to 6.8.2003, the rent of Rs.36,00/= has been paid against the receipt dated 8.8.2000, issued by late Sri Naveen Kumar; the claim of the plaintiff that the rent was at the rate of Rs.1,200/= per month, which is due from 1.8.2000, was denied. It has further been stated that he was not aware that the plaintiff was the owner of half of the portion of the property in view of the Case No.391 of 1991 and became exclusive owner of the property after the death of Sri Naveen Kumar. He was not aware about any will executed by late Sri Naveen Kumar in favour of the plaintiff. When plaintiff refused to receive the rent for the period 7.8.2003 to 6.8.2004, the rent was sent through the money order, which was also refused, hence a sum of Rs.1558/= has been deposited in the court under Section 20(4) of the Act.
The plaintiff pleaded that the alleged rent deed and receipt dated 8.8.2000 were forged and did not contain the signature of late Sri Naveen Kumar. It was further contended that earlier the rent was Rs.300/= per month, thereafter, it has been enhanced to Rs.1,200/= per month in the year 2000.
The court below decreed the suit on following ground:
When the genuineness of the rent deed was disputed by the plaintiff, the burden lies upon the revisionist to prove the genuineness of the said registered rent deed.
As per the own admission of Pradeep Kumar Gupta, the rent was Rs.3,00/= per month in the year 1993 and when the rent deed was executed in August, 2000, it has been fixed at Rs.100/= per month.
The court below has accepted that the rent was Rs.300/= per month, which could not be paid and no evidence has been adduced proving payment of the rent at the rate of Rs.300/= per month. There is no dispute about the ownership and as the construction was made in the year 1990, Act No. 13 of 1972 was not applicable. The court below has held that the revisionist was in arrear of the rent and, therefore, the suit for eviction was decreed and the court below directed the revisionist-defendant to vacate the premises in dispute within two months, pay the arrear of rent from December, 2000 to December, 2003 at the rate of Rs.300/= per month alongwith interest at the rate of 9% per annum and also damages at the rate of Rs.600/= per month alongwith interest at the rate of 9% per annum for illegal occupation of the property in dispute from December, 2003 till the date of handing over possession to the plaintiff.
Heard Sri R.C. Singh, learned counsel for the revisionist and Sri K.K. Arora, learned counsel for the respondent.
The contention of the revisionist is that the initial rent was Rs.300/= per month, but when the rent deed was executed in the month of August, 2000, the rent was fixed at Rs.100/= per month. The revisionist paid a sum of Rs.45,000/= towards the security, hence the amount of the rent was reduced from Rs.300/= per month to Rs. Rs.100/= per month. The rent deed was registered and, therefore, it was genuine and is to be relied upon. The revisionist has paid the rent at the rate of Rs.100/= per month and was not in arrear of rent, therefore, the suit is liable to be dismissed.
Sri K.K. Arora, learned counsel for the respondent, submitted that the genuineness of the alleged rent deed was challenged by the plaintiff. The plaintiff pleaded that it was forged. The rent receipt was also forged. When the genuineness of the rent deed was challenged by the plaintiff, the burden lies upon the revisionist to prove the genuineness of the rent deed. Neither the witness nor any other evidence has been adduced to prove the genuineness of the rent deed and, therefore, in view of Sections 67 and 68 of the Indian Evidence Act, 1872 such rent deed is not admissible. The revisionist himself admitted that in the year 1993, the rent was Rs.300/= per month, which has been reduced to Rs.100/= per month in view of the rent deed executed in the month of August, 2000, as a sum of Rs.45,000/= has been paid towards the security. No evidence or any receipt has been produced for the payment of Rs.45,000/= towards the security. In the circumstances, it is unbelievable that the rent from Rs.300/= per month was reduced to Rs.100/= per month and, therefore, it is apparent that the alleged rent deed said to have been executed in the month of August, 2000 was forged and ingenuine. Even if the rent at the rate of Rs.1,200/= per month is disputed, the revisionist ought to have paid the rent at the rate of Rs.300/= per month, which the revisionist failed to pay.
I have considered the rival submissions and perused the impugned order.
The ownership of the plaintiff is not in dispute. It is also not in dispute that Act No. 13 of 1972 is not applicable. The relationship of landlord and tenant is also not in dispute. The dispute is whether the revisionist is in default in paying the rent. It is admitted by the revisionist that he was the tenant of the premises in dispute since 1993 on a rent of Rs.300/= per month. The rent of Rs.100/= per month has been claimed on the basis of the rent deed alleged to have been executed in the Month of August, 2000/=. It has also been registered and it has been claimed that the rent at the rate of Rs.100/= per month has been paid. The plaintiff denied execution of any such rent deed and challenged its genuineness.
It would be relevant to refer Sections 67 and 68 of the Indian Evidence Act, which are being quoted below:-
"67. Proof of signature and handwriting of person alleged to have signed or written document produced.- if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting.
68. Proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.
[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered, in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]"
The proviso to Section 68 is not available to the revisionist as execution of the document has been denied and its genuineness has been challenged. Therefore, the document has to be proved in accordance to Sections 67 and 68 of the Indian Evidence Act, 1872.
The revisionist could neither prove the handwriting of late Sri Naveen Kumar on the alleged rent deed nor produce any attesting witness for the purposes of proving its execution, therefore, in view of Sections 67 and 68 of the Evidence Act, the document cannot be used as an evidence. Once the alleged rent deed goes and cannot be read as an evidence, there is no other evidence on record to prove the claim of the revisionist that the rent was Rs.100/= per month. It is admitted by the revisionist himself that in the year 1993, the rent was Rs.300/= per month. Even if the claim of the plaintiff that the rent was Rs.1,200/= since 2000 may not be accepted, but the revisionist-defendant ought to have paid the rent at the rate of Rs.300/= per month, which the revisionist admittedly failed to pay and, therefore, the revisionist has rightly been held in default in paying the rent by the court below.
In the circumstances, I do not see any error in the impugned order, which requires any interference by this Court. In the result, the revision fails and is dismissed.
28.7.2011 bgs/-