HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Civil Revision No. 173 of 2011 Moti Ram Gupta..........................................................Revisionist. Vs. Sri Nirmal Kumar Patni (Since dead) and another..........................Respondents. Hon'ble Rajes Kumar, J.
In the present revision the revisionist is challenging the order dated 10.2.2011 passed by the Additional District Judge / Special Judge (E.C. Act), Agra in S.C.C. Case No. 25 of 2000 whereby the suit of the plaintiff has been decreed and the defendant-revisionist has been directed to evict the premises in dispute and pay rent from 1st March, 2000 @ Rs.3,320/- per month.
The plaintiff-respondent filed a suit for eviction against respondent no. 2 and the revisionist, who was defendant no. 2, in the suit.
The brief facts of the case are that plaintiff has let out a newly constructed pukka tin shed in a portion of the compound premises no. 20/82, Jamuna Kinara Chhatta Ward, Agra to defendant no. 1 Shri Ram Niwas Gupta on a rent of Rs.1400/- per month. The measurement of the area was 37' 8" x 32' 10". The liability to pay the tax was on defendant no. 1. The plaintiff and the defendants have entered into an agreement on 20.1.1984 in this regard. On the request of defendant no. 1, the plaintiff allowed defendant no. 2, who is revisionist in the present case, to carry on the business along with defendant no. 1. In the year 1991, another tin shed was constructed measuring 32' 10" x 19' 2" which has also been let out and the rent has been enhanced from Rs.1400/- to Rs.3,320/- per month. The other condition of the agreement dated 20.1.1984 remained same.
It appears that on a vacant land measuring an area of 1500 Sq. ft. a tin shed was constructed has also been used by the defendants. The case of the plaintiff was that the defendants had taken the possession of the said land unauthorizedly. The suit was filed on the allegation that since 1st of March, 2000, the rent, and since 1985 the tax has also not been paid. The suit was filed for the eviction from the premises and also arrears of rent @ Rs.3,320/- per month in respect of 1500 Sq. ft. land illegally occupied by the defendants. The notice in this regard was given by the plaintiff to the defendants. The defendant no. 1 has not filed any written statement. The revisionist-defendant no. 2 filed the written statement and contested the suit. The revisionist-defendant no. 2 contended that there was no co-tenancy with defendant no. 1 and defendant no. 2 was tenant right from the very beginning on the rent of Rs.225/- per month and with the permission of the plaintiff the construction was made. It was contended that he was the tenant of the premises prior to 1984 and the entire rent has been paid upto 30th April, 2000 but no receipt was issued. Therefore, the rent w.e.f. 1.3.2000 was sent by money orders and when the plaintiff refused to receive the rent, the rent from 1.3.2000 has been deposited in the court. The defendant no. 2 contended that defendant no. 1 was never tenant of the premises in dispute and the agreement dated 20.1.1984 has been fabricated with the collusion of defendant no. 1.
In the suit, the plaintiff, Sri Nirmal Kumar Patni's statement was recorded. During the pendency of the suit, he died and his wife Smt. Kaushal Kumari Patni has been substituted as a plaintiff by virtue of Will deed. Issues have been framed and the witnesses have been examined. The court below has decided issue nos. 1, 2, 3 and 4 together. The court below on the basis of the evidence on record has held that the plaintiff has let out a newly constructed tin shed in a portion of the compound premises no. 20/82, Jamuna Kinara Chhatta Ward, Agra to defendant no. 1 on a rent of Rs.1400/- per month. The defendant had to pay the tax also apart from the rent. An agreement was executed on 20.1.1984 in this regard. The defendant no. 1 has included defendant no. 2 in his business with the permission of the plaintiff. In the year 1991, a new tin shed had been constructed, which has also been let out and the rent has been enhanced from Rs.1400/- to Rs.3,320/- per month. The court below has not accepted the plea that 1500 Sq. ft. land has been illegally occupied by the defendants. On the basis of the evidence on record, it has been held that in the year 1991 itself the tin shed had been given on rent after the construction of tin shed and at that time 1500 Sq. fit. land had also been given. Accordingly, the court below has held that the plaintiff is not entitled for the rent of Rs. 3/- per Sq. feet per month towards damages for illegal occupation of 1500 Sq. ft. land. The court below held that the rent was more than Rs.2000/- per month and the construction was new therefore the provisions of Act No. 13 of 1972 are not applicable and accordingly the suit for ejectment and arrears of rent has been decreed by the court below.
Heard Sri Pankaj Agrawal, learned counsel for the revisionist and Sri A.K. Gupta, learned counsel appearing on behalf of the respondents.
Learned counsel for the revisionist submitted that the plaintiff himself set out a case that 1500 Sq. ft. land has been illegally occupied by the defendants on which the tin shed was constructed by the defendants. The relationship of the tenant and the landlord does not exist in respect of the said land. Therefore, the said portion of the land is beyond the purview of S.C.C. Suit and is triable by the regular court. He submitted that the relationship between the landlord and tenant was only in respect of other area on which the tin shed was constructed. Therefore, the impugned order is liable to be set aside. He relied upon the decision of the learned single Judge of this Court in the case of Akhilesh Chand Varshney Vs. Smt. Bhagwati Devi and others, reported in AIR 1976 Allahabad-42.
Sri A.K. Gupta, learned counsel appearing on behalf of respondents submitted that Judge, Small Cause Court on the basis of the evidence on record has held that initially the tin shed was let out to defendant no. 1 against the agreement dated 20.1.1984 on a rent of Rs.1400/- and in the year 1991 when another tin shed was constructed, the same was also let out and rent has been enhanced from Rs.1400/- to Rs.3,320/- per month and at the same time 1500 Sq. ft. land was also let out along with new tin shed. The case of the plaintiff has not been accepted that the defendant has illegally occupied 1500 Sq. ft. land and raised the construction over it. The claim of separate rent @ Rs. 3/- per Sq. ft. per month for the entire 1500 Sq. ft. land has also been rejected. 1500 Sq. ft. land has been considered to be a part of the portion, which had been let out in the year 1991 by virtue of which the rent has been enhanced from Rs.1400/- to Rs.3,320/-. The agreement dated 20.1.1984 executed between the plaintiff and defendant no. 1 has been held to be genuine agreement. Defendant no. 2 has been allowed to carry on the business along with defendant no. 1 on the request of defendant no. 1. Defendant no. 1 has not filed the written statement and has not contested the suit. He submitted that since 1500 Sq. ft. land has been treated as the part of the area let out in the year 1991, the suit was maintainable in Judge, Small Causes Court and the argument of learned counsel for the revisionist has no substance and is liable to be rejected.
I have considered the rival submissions and have gone through the order of the court below.
I do not find any error in the order. The Judge, Small Causes Court on the basis of the evidence on record has held that 1500 Sq. ft. land was the part of the premises, which had been let out in the year 1991 along with the tin shed is proved by the evidences on record. Therefore, the suit was cognizable by the Judge, Small Cause Court in respect of 1500 Sq. ft. land, which was the part and parcel of the tin sheds admittedly let out by the plaintiff to the defendants. The tenancy of both tin sheds and alleged 1500 Sq. ft. land on which the tin shed has been constructed were under the single indivisible contract of tenancy and both cannot be split for the purposes of ejectment. Learned counsel for the revisionist is not able to show that there was any separate agreement of tenancy for the two tin sheds let out to the defendants with regard to which there is no dispute and the tin shed constructed over the land of 1500 Sq. ft.
Reliance has been placed upon the decision of the apex Court in the case of Habibunnisa Begum and others Vs. G. Doraikannu Chettiar (deceased by L. Rs.) and others, reported in AIR 2000 S.C.-152. This view is also supported by the decision of the apex Court in the case of K. Bhagirathi G. Shenoy and others Vs. K.P. Ballakuraya and another, reported in 1999 S.C.-2143.
The decision cited by the learned counsel for the revisionist in the case of Akhilesh Chand Varshney Vs. Smt. Bhagwati Devi and others (supra) does not apply in the present case. In the said case some of the relief was triable under the Provincial Small Cause Courts Act, 1887 and some of the relief was admittedly not triable under the aforesaid Act and on this fact the learned single Judge has held that the entire suit was triable on regular side.
In view of the foregoing discussion, the revision has no substance and is accordingly dismissed. However, the revisionist is allowed three months time to vacate the premises provided he gives an undertaking before the trial court and pays the entire decreetal amount within a period of two weeks.
Dated: 28th April, 2011 OP