HAJIBHAI KASAMBHAI Vs. DADAMIYA PIRBHAI RAFUGAR

JUDGEMENT

(1.) The respondent-plaintiff No.1 filed a suit being HRP Suit No.1250 of 1983 for recovery of possession of the suit premises on the grounds of arrears of rent, suitable acquirement by the tenant and non-user of the suit premises. The suit was decreed by a judgment and decree dated 25.4.1991 for recovery of possession of the suit premises or land after removing his hutment on or before 31.7.1991 and for recovery of Rs.1080/- on account of arrears of standard rent at the rate of Rs.30/-p.m. for three years immediately preceding the date of the suit, and with mesne profit at the rate of Rs.30/-p.m. from the date of filing of the suit till recovery of the possession of the suit land/premises. The rest of the plaintiff's claim of money decree of standard rent beyond the period of aforesaid three years was rejected. The tenant being aggrieved by the judgment and decree passed by the trial Court preferred Civil Appeal No.97 of 1991 before the Appellate Bench of the Small Causes Court at Ahmedabad. The appeal was also dismissed vide order dated 24.4.2002. Against the judgment and decree passed by the Courts below, this revision application has been preferred by the tenant.

(2.) Heard the learned counsel for the petitioner. Nobody appeared on behalf of the respondents.

(3.) The learned counsel for the petitioner submitted that original plaintiff No.1 filed a suit No.1266 of 1979 on 3.4.1979 for possession of the premises and for removal of kuchcha and pucca hutmentship treating the petitioner as trespasser with mesne profit from the date of the suit. A settlement was arrived at between the petitioner as well as the original landlord on 12.1.1983. On the basis of that settlement, a decree was passed whereby the petitioner was treated as a tenant of the property of 15 sq.yds. at the rate of Rs.30/-p.m. and the petitioner was required to leave the remaining property admeasuring 29 sq.yds. That settlement has been filed and is on record as Ex.43. Thereafter, a demand notice was made on 21.2.1983 for recovery of possession on the grounds of arrears of rent from 1.3.1969 to February, 1983, suitable acquirement by the tenant and non-user of the property by the tenant. The contention of the learned counsel for the petitioner is that the original plaintiff No.1-landlord never treated the defendant-petitioner as tenant and treated him as a trespasser for the land admeasuring 44 sq.yds. and filed Suit No.1266 of 1979 for removal of the encroachment made by the defendant-tenant. That suit was decided on the basis of the settlement signed by both the parties vide Ex.43 and decree was passed as per the settlement. That settlement was acted upon by the parties and the petitioner returned the land admeasuring 29 sq.yds. to the landlord. As the decree was passed in respect of rest of the land admeasuring 29 sq.yds. for possession, the defendant-tenant was treated as a tenant of the land admeasuring 15 sq.yds. from the date of the decree i.e. 12.1.1983. As there is no term or condition in the settlement regarding the previous rent for the period prior to the settlement, the petitioner is not liable to pay any rent for the period prior to the settlement and no evidence can be examined or produced by any of the parties in this regard. As per the provisions of Section 91 of the Indian Evidence Act, where the terms of a contract, or of a grant, or any other disposition of property, have been reduced to the form a document, no evidence is required to be given in proof of such terms of such contract, grant or other disposition of property. If any evidence is adduced by any of the party in respect of any term, which is not reduced in writing, that evidence would be inadmissible under Section 91 of the Indian Evidence Act. The petitioner was treated by the landlord as a trespasser prior to the date of the settlement dated 12.1.1983. The petitioner has been treated by way of the settlement and as per the terms of the decree dated 12.1.1983 as tenant of the portion of the land admeasuring 15 sq.yds. Had the petitioner been in arrears of rent of any period, the settlement must have been subject to the payment of that arrears of rent but there is no term or condition that the settlement would be effective only on payment of the mesne profit, damages or the rent prior to the date of the settlement. It is very unnatural that if the settlement has been arrived at and no term has been recorded in the settlement that the petitioner is required to pay any amount regarding the payment of arrears of rent, mesne profit or any damages, the parties would have ignored to mention such term in the settlement.