SHYAM SUNDER Vs. RAVINDRA KUMAR VERMA AND ANOTHER

JUDGEMENT

(1.) THIS revision has been filed under Section 25 of the Provincial Small Cause Courts Act, 1887, and is di­rected against the judgment and order dated 18-08-2004 passed by Shri Alok Kumar Verma, learned Judge Small Causes Court / Addl. District Judge / 3rd Fast Track Court, Haridwar, whereby he has decreed the S.C.C. Suit No. 05 of 1998 for recovery of arrears of rent and for ejectment of the defend­ant-revisionist.

(2.) BRIEF facts of the case are that the respondents-plaintiffs filed a suit ` against the revisionist-defendant before the trial court for ejectment and arrears of rent on the ground that the plaintiffs are the landlords of the premises in suit, which in family partition had gone in the share of plaintiff No. 2 since May 1993. Plaintiffs pleaded that the de­fendant-revisionist was their tenant on rent at the rate of Rs. 225/-per month apart from Rs. 10/- per month towards water charges. It is also pleaded that since Municipal Board, Haridwar as­sessed the house tax only in 1987, as such provisions of the U.P Act No. 13 of 1972 are not applicable to the build­ing in question. It is further pleaded by the plaintiffs in the plaint that defend­ant paid rent only up to 09-03-1985, and stopped payment thereafter. There­fore, after terminating the tenancy by serving a notice under Section 106 of Transfer of Property Act, 1882, the suit was filed before Judge, Small Causes Court. Haridwar. The defendant-revi­sionist contested the suit but admitted that the plaintiff No. 2 is the landlord since May 1993 and the defendant is his tenant in premises in question. However, the defendant has denied al­leged default in payment of rent and alleged that he had paid the rent right up to April 1998. In the written state­ment, it is also denied if the provisions of the U.P Act No. 13 of 1972 are not applicable and it is alleged that the plaintiffs wanted to enhance the rent to which defendant did not agree and his tenancy does not stand terminated as alleged by the plaintiffs.

(3.) SHRI Lok Pal Singh, learned counsel for the revisionist-defendant drew my attention to para 2 of the ad­ditional pleas contained in the written statement filed before the trial court and submitted that since the defendant has admitted that after May 1993, it was admittedly the plaintiff No. 2, who was the landlord, as such since plain­tiff No. 2 has not come into the witness box to state if the rent was not paid to him, therefore, the learned trial court has erred in coming to the conclusion that the rent has not been paid by the defendant. I see little substance in the submissions made by learned counsel for the revisionist for the reason that on behalf of both the plaintiffs, PW.1 Ravindra Kumar Verma, who is real brother of the plaintiff No. 2, has stated on oath that the defendant has not paid the rent to the plaintiffs. It is settled , principle of law that once both the par­ties adduce their evidence on a point, the question of burden of proof gets di­luted. I have perused the statement of D.W. 1, Shyam Sunder (Defendant-re­visionist) recorded by the trial court. In his cross examination the defendant as D.W1 has categorically stated D.W. 1 has further stated in his cross-examination as under In view of the above submission of the D.W 1, Shyam Sunder, it cannot be said if the learned trial court has erred in law by accepting the evidence ad­duced by the plaintiffs that the defend­ant has committed default in payment of rent.