GHAN SHYAM SINGH Vs. MAHBUBUR

JUDGEMENT

(1.) Issue in this tenants petition which survives for consideration is whether the revisional court could in exercise of its power under Sec. 25 of Small Causes Courts Act interfere with finding of fact and reassess the evidence only because the trial court misappreciated the evidence on record. Apart from it shall also have to be examined if even accepting the jurisdiction to interfere the revising authority acted in accordance with law, is deciding the suit even after finding that petitioner was not in default because he committed violation of tenancy rights by putting luggage and waste (Kabar) on the stair case attached to the shop thus preventing the landlord from using the same resulting in nuisance within meaning of Act 3 of 1947.

(2.) Parties had joined issue on right and user of stair-case. According to landlord it was never let out therefore the tenant had no right to use it. But the claim was negatived by the trial court as it was admitted by landlord and his witnesses that petitioner was using it and had even demolished a wall attached to the stair-case five years ago yet neither any action was taken nor any report was lodged. Reliance was also placed on evidence of one Pradam Kishan examined on behalf of petitioner who stated that he was related to erstwhile landlord from whom opposite party had purchased. He used to collect rent etc. and he knew that not only shop but stair-case was also let out. Prima facie finding on letting is a finding of fact. And cannot be interfered in revision. At least for error in appreciation of evidence unless of course the court or authority in recording the finding commits error of procedure or misdirects itself in analysing the material on record. Given the wider jurisdiction under Sec. 25 of Small Causes Court Act the revisional court acted erroneously in finding infirmity in finding of trial court on wholly fallacious approach. After assuming jurisdiction to interfere it found that petitioner having claimed staircase in its tenancy the burden to prove it was on him. It was against all cannons of evidence. Landlord opposite party sought eviction on commission of nuisance as staircase was never let out. His suit would fail if he fails to prove it. True once evidence has been led onus becomes immaterial. But the error was perpetrated by the revisional court in not only putting the burden wrongly but adjudicating upon the issue in dispute not on landlord's evidence who had filed the suit but on petitioners. No reference is made to landlord's evidence. No discussion, not even a whisper. Adverse inference was drawn against petitioner from circumstances which were wholly irrelevant. It was found that as staircase was not mentioned in rent receipt it demolished petitioner's case of its inclusion in its tenancy. Not with a view to substitute the finding but it cannot be disputed that rent receipts do not specify details of accommodation. Further it was held that petitioner having admitted execution of rent note in favour of his deceased father by erstwhile landlord he should have filed the same. As it was not done nor any effort was made to trace it the reluctance of petitioner gave rise to inference that staircase was not let out. Evidence of Pradam Kishan was discarded as even if he was collecting rent for erstwhile landlord he could not in ordinary course have known about letting in drawing inference against petitioner from circumstances which did not warrant them and in decreeing suit of opposite party without referring to evidence led on his behalf the revising authority certainly committed error of law.

(3.) Thus the order of revisional authority is bad. Normally be should have been directed to decide the revision afresh. But the suit for possession over stair-case was dismissed and the landlord was directed to file suit for eviction before regular court. Yet decree for ejectment from the shop was granted as putting of Kabar on staircase by tenant amounted to nuisance. To support this finding learned counsel for landlord relied on some decisions of other courts and urged that even obstruction by putting furniture or removing wall of staircase preventing landlord from going over roof has been held to amount to nuisance within meaning of Rent Control Acts therefore either the finding be upheld or the revising authority be directed to examine the issue of staircase afresh. According to learned counsel if it was not let out as has been found by revising authority or may be found the petitioner being guilty of breach of provisions of Act 3 of 1947 shall be liable to ejectment from the shop. Preventing landlord from exercising his right as lessor may be nuisance but to be actionable within meaning of Act 3 of 1947 it should be mala fide and high handed not in bona fide assertion of title. In J. Prasad Vs. T.C. Jain, AIR 1977 Allahabad 11 a Division Bench decision of this court concludes the matter in favour of petitioner. In that case dispute arose between landlord and tenant about tenancy of another portion in the building. The claim of tenant was negatived upto this court. Then landlord filed suit for eviction on nuisance. It was held when a party in assertion of bona fide title to the property or a bona fide claim to some interest therein goes before a court of law or is compelled to go before a court of law, it will not involve any amount of nuisance entering into his conduct............It is only when some mala fides or want on act is done by a party is high handed and the manner of doing it would be a nuisance but to bring in a bona fide assertion and claim which he considers rightful, though it may hurt the feelings of the true owner of that property, and may entail some amount of plain to him would not be a nuisance. On ratio of this decision can it be said that petitioner was guilty of committing nuisance. Admittedly landlord is not residing in premises in dispute. There are three shops in a row. The shop in dispute is in the end. The door of stair-case opens in shop of petitioner. He has been putting Kabar for five years prior to filing of suit in 1972 but neither any report was made nor any action was taken. No other tenant has filed any affidavit that stair-case was used by them. In the circumstances it cannot be said that claim of petitioner was mala fide. If it is established that stair-case was not let out the petitioner might be liable to ejectment. But the claim being bonafide in assertion of title it could not not amount to nuisance and no decree for eviction from the shop could be passed. Learned counsel for petitioner raised two other submissions, one that after enactment of Act 13 of 1972 the eviction of tenant on ground of nuisance was not available. According to him although Sec. 43 of the new Act continues proceedings initiated under earlier Act but eviction should be permitted only on the ground available under Act 13 of 1972. Reliance was placed on M/s. Alld. Theatres Ltd. Vs. Smt. Kusum Kumari, AIR 1974 Allahabad 73 . The other submission made was that the suit was bad for misjoinder. It is however not necessary to consider these submissions as it has already been held that suit of opposite party for eviction of petitioner was not maintainable.