HARI RAM JANGRE Vs. NAZIR KHAN

JUDGEMENT

(1.) KANHAIYA Lal and Babu Lal were owners of the house in dispute which was a joint family property. Plaintiff petitioner Hari Ram is son of Babu Lal. Om Prakash who appeared as plaintiff's witnesses is son of Kanhaiya Lal. According to the plaintiff petitioner his father Babu Lal had died and Kanhaiya Lal was managing the joint family properties and that Kanhaiya Lal partitioned the properties in such manner that house in dispute fell in the share of plaintiff petitioner. Original respondent No. 1 Nazir Khan since deceased and survived his wife Hajjo (or Hajara) and son Akhtar Khan was tenant of the house in dispute for a very long time. It appears that he was the tenant since before partition in between Kanhaiya Lal and his nephew i.e. plaintiff -petitioner. After partition petitioner sent the notice to the tenant respondent No. 1 demanding the rent and terminating the tenancy. The notice was sent on 27 -9 -1961. Thereafter petitioner filed suit against respondent No. 1 for eviction and recovery of arrears of rent being SCC Suit No. 128 of 1973 on the file of JSCC/Munsiff Ist, Jhansi. The number of the house in dispute is house No. 388 Bahar Sayed Gate, Jhansi. The tenant pleaded that he was the tenant of Kanhaiya Lal and after the death of Kanhaiya Lal he paid rent to legal representatives of Kanhaiya Lal i.e. wife of Kanhaiya Lal. Tenant denied the family partition. Tenant also asserted that he received a notice on behalf of legal representatives of Kanhaiya Lal by Sri A.N. Dubey, Advocate on 17 -5 -1963. According to the tenant this notice was given by the Advocate on behalf of Om Prakash son of Kanhaiya Lal. Om Prakash himself appeared in the witness box as witness of the plaintiff and out rightly denied sending any such notice. He fully supported the case of the petitioner that a partition had taken place in the family and house in dispute had come in the share of plaintiff -petitioner. Om Prakash is the only son of Kanhaiya Lal. There was absolutely no sense in giving false evidence by Om Prakash. By his evidence he categorically admitted that he had no share in the house in dispute. This statement was against his own interest. It is inconceivable that just to benefit the petitioner this statement would be given by Om Prakash. If Partition had not taken place and Om Prakash was the landlord - owner of the house in dispute as stated by the tenant then Om Prakash should have himself filed the suit and not supported the case of Hari Ram his cousin the plaintiff -petitioner. The tenant stated that he was paying rent to the widow of Kanhaiya Lal i.e. mother of Om Prakash. Om Prakash denied this fact. The tenant did not make any efforts to examine the lady. In the absence of evidence of widow of Kanhaiya Lal there remained no evidence on the part of the tenant in support of his pleading that legal representatives of Kanhaiya Lal i.e. widow and son were owners landlords of the house in dispute. In this regard reference may be made to R.H. Ranoji v. M. Channabasappa, AIR 2000 SC 2108. In that authority after decree for eviction against tenant, his brother had filed a suit challenging the said decree and asserting that he was the tenant and not his brother. He did not examine his brother who was defendant in the earlier suit which was decreed. Merely on the basis of this non -examination of the person against whom earlier decreed was passed, High Court allowed the second appeal and the said judgment was approved by the Supreme Court holding that in the absence of evidence of a person against who earlier suit was decreed there remained no evidence on record to prove that the plaintiff of the later suit was the tenant and not the defendant of the earlier suit. The trial Court thoroughly disbelieved by giving very cogent reasons the evidence of the tenant to the effect that he had paid any rent to the widow of Kanhaiya Lal. For this finding contradictions in the statement of the tenant were also taken into consideration by the trial Court.

(2.) PETITIONER has asserted that the rate of rent was Rs. 15/ - per month. Tenant asserted that it was only Rs. 10/ - per month. Trial Court accepted the case of the petitioner and held that petitioner was owner -landlord of the house in dispute, rate of rent was Rs. 15/ - per month and that tenant had not paid the rent since February, 1960. Trial Court ultimately through judgment and decree dated 7 -11 -1979 decreed the suit. Against the said judgment and decree tenant -respondent Nazir Khan filed SCC revision No. 193 of 1979. IVth A.D.J. Jhansi allowed the revision on 30 -7 -1984 hence this writ petition.

(3.) REVISIONAL Court did not record any finding regarding payment of rent.