AMARWATI Vs. XITH A D J MORADABAD

JUDGEMENT

(1.) THESE two writ petitions have been filed by the defendants for quashing the order dated 7.2.1990 passed by Xlth Additional District Judge, Moradabad (respondent No. 1) in Civil Revision No. 92 of 1985 and Civil Revision No. 93 of 1985, whereby the application filed by the plaintiff revisionist (respondent No. 2) for admitting the additional evidence has been allowed and the objections of the petitioners have been rejected.

(2.) THE dispute relates to the properties mentioned in Schedule 'A' to the plaint of Suit No. 129 of 1984, Smt. Ramawati v. Amrawati and Ors., by which Smt. Ramawati claims herself to be the owner and landlord and the petitioners as tenants. The suit was filed with the allegation that property in dispute was owned by Sri Jagdish Kumar and upon his death it was inherited by his widow Smt. Surendra Bala and his mother, Smt. Genda Kunwar. Earlier Smt. Surendra Bala had filed a suit against Smt. Genda Kunwar for her eviction and for declaration, which was registered as Suit No. 17 of 1944. The said suit was decided against Smt. Genda Kunwar, against which she filed a civil revision before the High Court, which was registered as Civil Revision No. 338 of 1945. A compromise was arrived at on 16.12.1947 and on its basis Smt. Genda Kunwar was given life interest in the property, detailed in Schedule 'B' to the plaint in lieu of the maintenance and she was accordingly, put into possession of the said property. Upon enforcement of the Hindu Succession Act, 1956, Smt. Genda Kunwar became full and absolute owner of the aforesaid property and also had a right to transfer the same. Smt. Genda Kunwar executed a Will in respect of the said property on 23.2.1967 in favour of her grand daughter Smt. Rajeshwari Devi Tandon. Upon the death of Smt. Genda Kunwar on 15.4.1976, the Will became operative and Smt. Rajeshwari Devi Tandon became the owner and continued to remain to be so till her death on 17.12.1980. On that date Smt. Beena Bahal, only daughter and sole heir of Smt. Rajeshwari Devi Tandon inherited the property and she executed the Will deed dated 7.7.1983 in favour of the plaintiff Smt. Ramawati. It was further alleged in the plaint that the accommodations detailed in Schedules 'B' and 'C' at the end of the plaint were part and parcel of the property shown in Schedule 'A' to the plaint. It was clarified that the properties of the Schedules 'B' and 'C' were in tenancy of Sri Ram Kishore, husband of the defendant No. 1 Smt. Amrawati and father of the defendant Nos. 2 to 5, namely Sri Rajendra Kishore, Sri Ravindra Kishore, Sri Dharmendar Kishore and Sri Arvind Kishore. On the death of Ram Kishore defendant Nos. 1 to 5 became tenants of the original owner Smt. Genda Kunwar, thereafter of Smt. Rajeshwari Devi Tandon, then of Smt. Beena Banal and finally of the plaintiff Smt. Ramawati. The defendant had committed default in payment of rent from 7.7.1983 and therefore a notice requiring to pay the arrears as also terminating their tenancy and to vacate the premises was given on 20.1.1984. However as the defendant failed to pay arrears despite notice and had further denied the title of the plaintiff as landlord as such the suit was filed on these two grounds for recovery of rent and ejectment from the properties detailed in Schedule 'B' at the foot of the plaint. In respect of properties mentioned in Schedules 'A' and 'C' since they were in occupation and possession of other parties separate suits were filed against them, being registered as Small Causes Suit Nos. 130 of 1984 and 131 of 1984.

(3.) BEFORE the trial court both the parties led the evidence. The plaintiff filed a copy of the compromise dated 16.12.1947, which was arrived at between the parties in Civil Revision No, 338 of 1945. However, neither the pleadings of Suit No. 17 of 1944 nor the order sheet of Civil Revision No. 338 of 1945 etc. could be filed before the trial court even though the pleading to the same were made in the plaint. The trial court after hearing the parties and considering the materials on records came to the conclusion that Smt. Genda Kunwar never became the absolute owner and had no right to execute the Will and subsequently the rights alleged to have accrued pursuant to the sale deed and the subsequent sale deed by Smt. Beena Bahal could not make the plaintiff owner and landlord of the properties in dispute. The trial court was of the view that it was always Sri Vishnu Kurnar on the basis of Will of Smt. Surendra Bala who became the owner and landlord and therefore there existed no relationship of landlord and tenant between the parties. On these findings of fact the trial court vide judgment dated 8.2.1985 dismissed the suit. Aggrieved by the same the plaintiff filed a revision under Section 25 of the Provincial Small Causes Courts Act, 1887 (hereinafter referred to the Act) before the District Judge, Moradabad, which was registered as Revision No. 92 of 1985. During pendency of the said revision the plaintiffs -revisionist filed an application under Section 151, C.P.C. read with Order XLI, Rule 27, C.P.C, for admitting additional evidence on record for correct and proper adjudication of the rights of the parties. This application was supported by an affidavit. The five papers sought to be placed on the record included :