RAJPAL SINGH Vs. DEVENDRA KUMAR

JUDGEMENT

(1.) AGGRIEVED by an order of ejectment and recovery of arrears of rent and house tax and water tax in respect of a shop, the defendant has filed this revision. The shop originally belonged to Chandra Mohan Sahai Bhatnagar. The plaintiffs case is that by a sale deed dated 19,3.1982, the shop was sold by Chandra Mohan Sahai Bhatnagar to the plaintiff ; that the defendant was a sitting tenant at the rate of Rs. 100 per month in addition to a sum of Rs. 19 which he was liable to pay as house tax and water tax ; that the defendant did not pay the rent to the plaintiff despite having knowledge of the sale in favour of the plaintiff as the defendant had purchased other property from the plaintiff ; that notice dated 20.5.1990 was served upon defendant on 21.5.1990 to which a wrong reply was given in reply notice sent by defendant through his counsel denying the title of the plaintiff and defendant failed to pay the rent whereupon the plaintiff gave a reply dated 28.5.1990. The plaintiff claimed that rent for the period 20.2.1982 to 10.8.1990 and water and house tax was due but relief was sought only in respect of preceding three years. The suit was filed on 11.9.1990.

(2.) THE defendant contested the suit on the ground that he was a tenant of Chandra Mohan Sahai Bhatnagar at Rs. 100 per month and was bona fide paying the rent to him ; that the defendant was not liable to pay house tax and water tax ; that no sale deed dated 19.3.1982 was executed by Chandra Mohan Sahai Bhatnagar in favour of the plaintiff ; that the alleged sale deed is forged and void document ; that Gyanendra Swarup Bhatnagar, who purported to execute the sale deed as Attorney of Chandra Mohan Bhatnagar, had no right to do so as no such Power -of -Attorney was executed by Chandra Mohan Sahai Bhatnagar and the document is forged ; that the defendant never admitted himself to be the tenant of the plaintiff ; that the defendant came to know about the forged sale deed on receiving plaintiffs notice dated 14.5.1990 ; that defendant had not got executed any sale deed from the plaintiff ; that complicated question of title was involved and the small cause court had no jurisdiction.

(3.) ON the question whether the plaint was liable to be returned under Section 23 of the Provincial Small Cause Courts Act, the plaintiff examined P.W. 3 Devendra Kumar who stated that the sale deed dated 19.3.1982, was executed for Rs. 50,000 by Chandra Mohan Sahai Bhatnagar who had given special power of attorney to Gyanendra Swarup Bhatnagar. This witness also stated that the original sale deed was lost. Certified copy of the sale deed was obtained from office of Sub -Registrar and was filed in the suit. The original power -of -attorney was also filed ; P.W. 4 Desh Bandhu, deed writer was examined to prove the power -of -attorney. He stated that the power -of -attorney was written by him and was signed by Chandra Mohan Sahai Bhatnagar in his presence and the document was attested by Notary Roshan Lal. The plaintiff also relied upon the fact that defendant had obtained a sale deed dated 6.10.1989, treating the plaintiff as the owner of the property in favour of the defendant's wife Rameshwari Devi. To prove this fact P.W. 1 Mahavir Singh was examined by the plaintiff. On the other hand the defendant stated that he came to know about the alleged sale deed in favour of his wife only at the time of deposition in Court. The trial court disbelieved the statement of defendant and held that the statement of Mahavir Singh P.W. 1 was recorded in the presence of defendant on 14.8.1993 and Mahavir Singh had proved the sale deed in favour of Rameshwari Devi, defendant's wife and as such there was no question of defendant coming to know about this sale deed only on 5.1.2000, when his statement was recorded. Reliance was placed upon the fact that the sale deed was obtained by the defendant in favour of his wife from the plaintiff on 6.10.1989, treating the plaintiff as the owner of the property. The trial court also considered the fact that the name of the plaintiff was entered in the municipal records and the assessment certificate for the year 1991 (Paper No. 37 -Ga) was filed by the plaintiff in proof of the fact that his name was recorded. An affidavit of Chandra Mohan Sahai Bhatnagar was also filed before the Municipal Board for mutation of the plaintiffs name. The trial court held that plaintiff is the owner of the disputed shop and no complicated question of title was involved and the Small Cause Court has jurisdiction to entertain the suit. The finding of the trial court about the title of the plaintiff is based on evidence referred to above.