VIRENDRA PRASAD SHUKLA Vs. RAM SWARUP

JUDGEMENT

(1.) Heard the learned counsel for the parties.

(2.) A suit was filed by respondents nos. 1 and 2 against the petitioner impleading respondent no. 3 for ejectment. The case of the plaintiff was that defendant no. 1 (respondent no. 3) was the tenant-in-chief of the disputed accommodation since 1950 and he had taken the petitioner as a sub-tenant in the aforesaid building. A notice was issued to the defendant no. 1 for ejectment and arrears of rent which was not complied with and subsequently the suit was filed for ejectment of the defendants nos. 1 and 2 from the disputed accommodation. The defendant no. 1 filed a written statement accepting all the allegations of the plaintiff which is filed along with the petition as Annexure 2. He made only one request that he be exempted from the costs of the suit.

(3.) The defendant no. 2, who is petitioner in the present petition, filed a written statement claiming that the plaintiffs were not the owners of the disputed house nor the defendant no. 1 was his landlord nor he was the sub-tenant of the defendant no. 1. He claimed that the disputed house belonged to his father, Brij Mohan and he was residing in the house along with his father. His father executed a registered will in favour of the petitioner's son, i.e his grand son and now the petitioner was residing as the licensee of the owner, i.e his son. It was further mentioned that in January, 1966 a notice was issued by the plaintiff's father which was duly replied by the petitioner's father. Thereafter another notice was issued on 20/3/1975 which was also replied on 25/3/1975 The house was within the limits of Town Area Lakhana and the petitioner has been residing in the house since that time. Both the parties adduced oral and documentary evidence. The contention of the petitioner that earlier his father and now his son was the owner of the house was not decided by the courts below and they held, that the matter related to title could be decided by a competent court. The suit was to be decided merely on the basis of the relationship between the landlord and the tenant. Series of documents that were filed by the petitioner were not examined on merits and the courts below proceeded to determine the matter merely on the basis of relationship between the parties as landlord and tenant. The learned counsel for the petitioner alleged in para 9(b) of the petition that there was absolutely no evidence to show that the petitioner was a sub-tenant of defendant no. 1. The various pieces of documentary and oral evidence mentioned in the para were-also ignored and the courts below without going into the merits of the petitioner's case head him to be a sub-tenant of defendant no. 1 and passed a decree for his ejectment in that capacity. In paras 10(a), 10(c) and 10(g) of the petition it was specifically mentioned that there was no evidence to show that the petitioner was a sub-tenant of the plaintiffs or he entered into any contract of tenancy with the defendant no. 1, The learned counsel for the respondent has filed the statements of the parties along with the counter-affidavit. Annexure 5 to the counter-affidavit is the statement of Ram Swaroop alleged to be the tenant-in-chief i.e the defendant no. 1. He stated that he was residing in the house upto 1973. He left the house in the year 1973 and informed the landlord that he was vacating the house and, therefore, he was giving it on Shikmi. In cross-examination he admitted that he did not get any document written. In the last sentence of the cross-examination he stated that it was incorrect to say that defendant no. 2 was his sub-tenant. The statement of plaintiff has been filed as Annexure 2 to the supplementary counter-affidavit. In the examination-in-chief he stated that defendant no. 1 has admitted defendant no. 2 as his sub-tenant without his consent. In cross-examination he admitted that this house was not sub-let in his presence nor he knew what was the rent payable. He could not depose about the terms of sub-tenancy as alleged by him. Besides the above documents, the petitioner has produced a certified copy of the registered sale-deed executed by him in the year 1962. In that sale-deed the address mentioned is of the instant house. In 1966 notices were issued to the petitioner's father at the address of this very house. In 1969, the petitioner's father had executed a registered will in favour of the son of the defendant no. 2 in respect of this very house. In the year 1975 another notice was Issued by the plaintiff which was replied by the defendant no. 2. The defendant no. 2 also produced the papers by which he too of electric connection of the house, paid electricity dues and so on. All these documents have been ignored by the courts below. The petitioner made an application (27-C) before the court below for returning the plaint for presentation to Regular Court for determining the question of title of parties. A certified copy of the order-sheet is filed as Annexure along with the rejoinder affidavit. The application was rejected on 25/7/1979 as is apparent from that certified copy.