GANGA PRASAD MISHRA Vs. STATE OF U P

JUDGEMENT

(1.) S. U. Khan, J. This writ petition is directed against judgment and order dated 23-12-1997 passed by VI-Additional District Judge, Allahabad in Rent Control Appeal No. 107 of 1995 and 111 of 1995. State of U. P. which is tenant in a house instead of behaving like a model litigant is acting in an unscrupulous manner, which instead of being censured by Lower Appellate Court has rather been approved.

(2.) THE brief facts of the case are that State is tenant in the house in dispute in which it has established office of C. B. C. I. D. Initially Miss Harlekar was owner landlord. She died in the year 1984 she had executed a registered will in favour of Ganga Prasad Mishra, petitioner, who filed suit for ejectment and recovery of arrears of rent against the State and Sector Officer C. B. C. I. D. before VIIIth Additional District Judge/j. S. C. C. , Allahabad being O. S. No. 20 of 1985. In the said suit defendant filed written statement and denied any information with regard to will dated 5- 5-1979 on the basis of which G. P. Mishra claimed ownership/land lordship and filed the said suit issues numbers 1 and 5 related to validity of the will and relationship of landlord tenant in between plaintiff and defendant. THE suit for ejectment was dismissed on 18-3-1992 on the ground that the defendant had deposited entire rent etc. on the first date of hearing as required by law (Section 20 (4) of U. P. Act No. 13 of 1972 ). However, Issues No. 1 and 5 were decided in favour of plaintiff G. P. Mishra. It was held that the will was genuine and had properly been proved by one of the attesting witnesses. It was further held that the only thing with regard to the will stated by the defendant was that in case such a will had been executed they would have been informed about the same. Consequently suit for the recovery of rent was decreed and the plaintiff was held entitled to take back the amount deposited by the defendant. It is important to note that the defendants in that suit neither raised the plea of escheat nor moved any application under Section 23 P. S. C. C. Act for return of plaint to be presented to the Civil Court for determination of the title of plaintiff on the ground that relief claimed by him depended upon the proof of disproof of the title to the immovable property which J. S. C. C. could not finally determine. Revision against the same filed by G. P. Mishra has also now been dismissed by this High Court through judgment and order dated 27-9-2002 delivered in Civil Revision No. 335 of 1992. No revision was filed by the State against the decree for recovery of arrears of rent which was based upon the findings that Miss. Harlekar had executed a will in favour of G. P. Mishra which was valid and genuine. Even in the revision filed by G. P. Mishra it was not contended by the State that the findings of J. S. C. C. with regard to title of G. P. Mishra was wrong which it could very well do on the basis of Order XLI, Rule 33 CPC as held by Supreme Court in a recent case reported in AIR 2002 SC 2562. Proceedings giving rise to the instant writ petition were initiated by G. P. Mishra for enhancement of rent under Section 21 (8) of U. P. Act No. 13 of 1972. Rent Control Eviction Officer by order dated 25-2-1995 determined the rent to be Rs. 4,517. Both the parties filed appeals against the said order. Appellate Court dismissed the appeal of the petitioner and allowed the appeal of the State. THE appellate Court brushed aside, the earlier judgment given by A. D. J. /j. S. C. C. dated 18-3- 1992 on the ground that the Additional District Judge recorded the finding of ownership of petitioner beyond its jurisdiction as J. S. C. C. had no right to determine title of the house in dispute. Only in regular Court such a question could be decided after framing relevant issue and on the basis of the evidence of the parties which could be binding on the parties. THE findings recorded by A. D. J. would neither be res judicata between the parties nor State and C. B. C. I. D. were legally bound to accept the said findings. It was further held that petitioner's ownership over the house in dispute could not be accepted unless he obtained from some competent Court probate or succession certificate or got a declaration with regard to validity of the will from some competent Court as State was all along asserting that the will was forged.

(3.) THE plea of escheat raised by the State in the proceedings under Section 21 (8) was also not tenable. THE State in order to establish its right of ownership on the principle of escheat with regard to the building in dispute in facts and circumstances of the case (sic just) as to assert the said right in a regular suit. It cannot transform its status from tenant to that of landlord on the self assumed and self determined right of escheat under some what similar circumstances where State was lessor it has been held by the Supreme Court in State of U. P. v. D. P. Singh, AIR 1989 Supreme Court 997, "sri Sorabjee submitted that great hardship and injustice would be occasioned to the respondents if the State Government on the self-assume and self-assessed validity of its own action of cancellation of the lease, attempts at and succeeds in, a resumption of possession extra-judicially by physical force. Sri Sorabjee referred to the notice dated 19-11-1985 in which the Government, according to Sri Sorabjee, had left no one in doubt as to its intentions of resorting to an extra-judicial resumption of possession. Sri Sorabjee referred to paras 3. 10 and 4 of the order dated 19-11- 1985.