KASHI RAM Vs. SIXTH ADDL DISTRICT JUDGE SAHARANPUR

JUDGEMENT

(1.) This petition arises out of a suit filed by the petitioner against the respondent No. 2 for ejectment and arrears of rent. The trial Court decreed the suit for ejectment as well as for recovery of arrears of rent and damages for use and occupation. The defendant, thereupon, filed a revision under Section 25 of the Provincial Small Causes Courts Act which has been allowed by the learned VI Additional District Judge, Saharanpur. Shortly stated the plaint case was that the plaintiff was the owner and landlord of the property mentioned in Schedule A of the plaint and the defen dant was the tenant of that property on a monthly rental of Rs. 10/- since February 1966. The defendant had not paid any rent since 1-7-1966 in spite of notice of demand. The property given in schedule B was owned by the peti tioner's brothers Basudeo. The defendant was a tenant of Basudeo on a rent of Rs. 15/- per month in respect of the property of Schedule B. However, in pursuance of a decree for specific performance of a contract for sale of the property of Schedule B, a sale-deed was executed in favour of the petitioner on 23-10-1973 of which due notice in writing was given to the tenant on 19-11-1973. The defendant paid no heed to that notice. He neither paid the arrears of rent demanded nor vacated the properties and hence the suit. The suit was contested on a variety of grounds. It was alleged by the defendant that he was a tenant of Basudeo since i 964-65 in respect of both the properties on a rent of Rs. 15/- per month. Basudeo had taken a loan of Rs. 500/- at 3% interest per month and executed an agreement dated 18-10-1973 to the effect that the interest on the aforesaid amount amounting to Rs. 15/- per month shall be adjusted towards the rent of the accommodation in question. Basudeo had not repaid the loan and hence the defendant was entitled to adjust the rent of the house against the interest. In these circum stances, there was no question of any default on the part of the defendant. On the pleadings of the parties, relevant issues were framed by the trial Court. It found that the defendant was a tenant of the plaintiff and that the defendant had not paid any arrears of rent despite notice of demand and hence, he was liable to be evicted. A decree for an ejectment as well as arrears of rent and damages for use and occupation was, therefore, passed by the trial Court. In the revision, filed by the defendant, the revisional Court has set aside the findings of the trial Court on various issues of facts. The revisional Court has after allowing the revision dismissed the suit of the plaintiff on the ground that the defendant was entitled to adjust the rent of the properties in question against the interest of the amount advanced to Basudeo. The learned District Judge set aside the finding of the trial Court on the question of default and dismissed the plaintiff's suit. Learned counsel for the petitioner first contended that the learned District Judge committed a patent illegality and an error of jurisdiction in setting aside the finding of the trial on the question of default on a mere reassessment and reappraisal of evidence. The second contention of the learned counsel for the petitioner is, even if it be assumed that there was an agreement (Ext. A-6) dated 18-10-1973 to the effect mentioned above between Basudeo and the defendant, that agreement was of no avail as against the plaintiff who became a full owner of the property under the sale-deed executed in his favour. Having heard learned counsel for the parties, I am clearly of the view that both the aforesaid submissions of learned counsel for the petitioner are well founded. Learned District Judge clearly misconceived his jurisdiction under Section 25 of the Provincial Small Causes Courts Act under which he was empowered to set aside the order passed by the trial Court only if he came to the conclusion that the order was contrary to law. It is settled law that the Court exercising power under Section 25 of the Provincial Small Causes Courts Act has no jurisdiction to reassess the evidence on the record on pure issues of fact. There is no manner of doubt that the learned District Judge has done precisely this. He has reassessed the evidence and arrived at a contrary conclusion which was not permissible under the aforesaid Act. The learned District Judge has reassessed the statements of witnesses. This was obviously beyond his jurisdiction. Even if the learned District Judge found that some pleces of evidence had not been considered by the trial Court, he could at best have only remanded the case. He could not on that ground embark upon a reassessment of the evidence (See 1979 Allahabad Weekly Cases 746 ). The first contention of the learned counsel for the petitioner is, therefore, accepted. Coming to the second contention, I agree with the learned counsel that the agreement for adjustment of Rs. 15/- against the loan said to have been advanced to Basudeo was not an encumbrance on the property which could pass on, upon transfer, to the plaintiff. It was not covenant which ran with the land. It was a plain and simple agreement in regard to a money transaction between Basudeo and the defendant which could by no stretch bind the plaintiff. The plaintiff had become a full owner of property mentioned in Schedule B in the year 1973 and of the property mentioned in Schedule A under the will executed by his father in the year 1961. The agreement was, if at all refer able only to the property of Schedule B and that to only so long as Basudeo was its owner. In any case, the said agreement cannot under any provision of law bind the plaintiff. The view of the learned District Judge to the contrary is manifestly unsustainable in law. The barned District Judge has set aside the order of the trial Court principally on the ground that because of the agreement between Basudeo and the defendant, the defendant cannot be said to be a defaulter because so long as the loan of Rs. 500/- was not repaid by Basudeo. The defendant was, in the opinion of the learned District Judge, entitled to continue to remain in occupation in the shop in question without any interference, in lieu of the interest. That view of the learned District Judge is, as already stated, manifestly unsustainable. In view of the facts stated above, this petition succeeds and is allowed. The judgment and deeres passed by the learned VI Additional District Judge, Saharanpur dated 21-9-1978 are quashed. The judgment and decree passed by the trial Court are restored. There will be no orders as to costs. .