BEHARI LAL Vs. ADDL DISTRICT JUDGE - VII BAREILLY

JUDGEMENT

(1.) S. U. Khan, J. This is tenant's writ petition. Landlord/respondent No. 3 Durga Prasad s/o Umedi Ram filed suit No. (S. C. C. Suit No.) 162 of 1974 against tenant/petitioner before J. S. C. C. , Bareilly for his ejectment on the ground of default and for recovery of arrears of rent. According to plaint allegation in brief plaintiff was landlord and defendant was his tenant in the accommodation in dispute at the rent of Rs. 5/- per month and that rent had not been paid w. e. f. 11-12-1968, that a notice terminating the tenancy and demanding rent from 11-12-1968 till 10-8-1973 was given by the plaintiff on 8/12-9-1973, and on failure of the defendant to comply with the notice the suit was filed. The defendant filed the written statement denying title of the plaintiff and relationship of landlord and tenant in between him and the plaintiff. The defendant/petitioner asserted his own title over the house in dispute on the ground that it belonged to his father-in-law Umedi Ram who gave it to his daughter i. e. wife of the defendant (the litigation is in between brothers-in-law ). Receipt of notice was also denied. The plaintiff in order to prove his title filed registered sale deed dated 27-4-1957 regarding house in dispute executed by Umedi Ram (Father of the plaintiff ). The trial Court believed the version of the plaintiff to the effect that he was owner of the house in dispute by virtue of the aforesaid sale deed. In order to prove relationship of landlord and tenant plaintiff filed paper No. 36- C alleged to be rent-note executed by the defendant. The trial Court did not believe execution of rent-note by the defendant on the ground that even though it contained several thumb marks alleged to be of defendant but none of the thumb marks was clear and all the thumb marks were blurred. However, initial owner Umedi Ram (Father of plaintiff and father- in-law of defendant) stated that defendant executed the rent-note in his presence. The trial Court also disbelieved the version of the plaintiff that defendant ever paid rent to him. The trial Court, therefore, even though held the plaintiff to be the owner, decided that defendant was not the tenant. The trial Court held the service of notice sufficient. Ultimately the suit was dismissed through judgment and decree dated 19-2-1979. Plaintiff/respondent No. 3 filed revision against the said judgment and decree being Civil Revision No. 93 of 1979. The revision has been allowed on 23-1- 1980 by Additional District Judge-VII, Bareilly. This writ petition is directed against the said judgment and order passed by the Revisional Court. The Revisional Court allowed the revision and decreed the suit for ejectment and recovery of arrears of rent and damages for use and occupation. The Revisional Court regarding arguments of learned Counsel for the tenant to the effect that in revision under Section 25 P. S. C. C. Act findings of fact recorded by J. S. C. C. could not be disturbed held as under, "though there is a rule that in revision findings of fact should not be normally interfered yet if there is any perversity there is no bar of the Court to interfere with that findings and to take a different view. " The Revisional Court held that another rent-note paper No. 35-C dated 28-4-1957 was available on record. This rent-note was executed by Umedi Ram (initial owner) in favour of the plaintiff. Umedi Ram executed the sale deed in favour of his son i. e. the plaintiff one day before i. e. 27-4-1957. The Revisional Court further held that. " Since the defendants are in possession over the house through Umedi Ram and because the title of the plaintiff is established over the disputed house, there can be no other capacity except that the defendant is tenant of the plaintiff". The use of words "defendants are" (in plural) is not at all understandable. There is only one defendant i. e. petitioner. The Revisional Court held that the rent-note executed by Umedi Ram was valid. This means that Umedi Ram was the tenant. It also appears that Revisional Court was of the view that defendant/petitioner was residing in the house in dispute on behalf of Umedi Ram. If it is so then the suit treating petitioner to be the tenant and without impleading Umedi Ram, the alleged main tenant was itself bad and liable to be dismissed. The clear-cut case of the plaintiff in the plaint was that defendant was his tenant, had executed a rent-note and had paid some rent. If Umedi Ram is held to be the tenant then the entire case taken in the plaint fails and suit is liable to be dismissed.

(2.) EVEN otherwise Revisional Court interfered in and reversed pure findings of fact recorded by the trial Court regarding absence of relationship of landlord and tenant in between plaintiff and defendant. This was not permissible in exercise of revisional power under Section 25 P. S. C. C. Act.