Allahabad High Court
Arvind Kumar Tiwari (At: 03:50 ... vs Ist A.D.J.Hardoi on 10 July, 2013
Bench: Sibghat Ullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
(Judgment reserved on 08.04.2013)
(Judgment delivered on 10.07.2013)
Court No. - 21
Case :- RENT CONTROL No. - 130 of 1991
Petitioner :- Arvind Kumar Tiwari
Respondent :- Ist A.D.J.Hardoi and others
Counsel for Petitioner :- Adil Khan
Counsel for Respondent :- S.Verma,Rajiv Kumar Sinha
Hon'ble Sibghat Ullah Khan,J.
Heard learned counsel for both the parties.
This is landlord's writ petition arising out of S.C.C. Suit No.65 of 1984, Smt. Krishna Kumari since deceased and survived by the petitioner Vs. Lal Bahadur and others wherein eviction of tenant respondent from tenanted accommodation was sought. The suit was dismissed by J.S.C.C./ Munsif (West), Hardoi on 29.11.1990. Against the said decree, petitioner landlord filed S.C.C. Revision No.21 of 1990, which was allowed on 30.05.1991 by First A.D.J., Hardoi and the matter was remanded to the trial court for returning the plaint under Section 23, Provincial Small Cause Courts Act hence this writ petition.
According to the plaint allegations, initially Ram Lal and Sohan Lal were owners of the land in dispute (defendants respondents are sons of Ram Lal), the original owners in the year 1952 through registered sale deed sold the house in dispute to Kamta Prasad the husband of the original plaintiff and Ram Lal and Sohan Lal took the house on rent from the husband of the original plaintiff at the rent of Rs.9 and six annas per month after executing the rent deed; subsequently the rent was enhanced to Rs.15/- per month and that since 13.08.1977 rent had not been paid, hence on the date of filing of the suit arrears amounted to Rs.1230/-.
Before filing the suit, notice of termination of tenancy was also given, which was refused to be accepted by the defendants.
The defendants pleaded that Ram Lal and Sohan Lal had not executed any sale deed and they were not the tenants. It was further pleaded that Kamta Prasad, husband of the original plaintiff was a money lender and actually it was a loan transaction which was entered into in between Kamta Prasad on the one hand and Sohan Lal and Ram Lal on the other hand and Kamta Prasad was usually advancing loan and getting the sale deeds executed and after return of the loan with interest he was executing reconveyance deeds in favour of the borrowers, hence the deed executed by Ram Lal and Sohan Lal in favour of Kamta Prasad was in fact a mortgage deed. It was further pleaded that after receiving the notice of the plaintiff, the defendants under Section 83 of Transfer of Property Act had deposited the principle amount of Rs.300/-. It was also pleaded that Nagarpalika initiated proceedings under U.P. Public Premises Eviction of Unauthorised Occupants Act, 1972 against the defendants and only their names were entered in the muncipal records and they were paying house tax, hence there was no relationship of landlord and tenant between the parties and plaint deserved to be returned under Section 23 of P.S.C.C. Act as question of title was involved.
House is constructed over nuzul land. Plaintiff had filed the document showing that patta of the nuzul land over which house was constructed had been renewed in the name of the plaintiff. In the judgment of the trial court, it is mentioned that the said renewal had been challenged by the defendants in the court of law. The trial court also mentioned that name of the plaintiff was entered in the municipal records (in nuzul register) only after filing of the suit i.e. in the year 1986. The trial court also mentioned that some documents were filed showing that either Kamta Prasad executed deeds of reconveyance in favour of those persons, who had sold the property to him or returned the sale deeds. In this regard particular reference was made to paper No.79-ga, which was a sale deed executed by a person in favour of Kamta Prasad. The sale deed was in possession of the person, who had executed the same and at the back thereof Kamta Prasad had himself written that after getting back the money the document was being returned and Kamta Prasad would not be having any concern with the house any further. Accordingly, the trial court held that Kamta Prasad was the money lender and in routine course he was getting the sale deeds executed from the borrowers and was either returning the same to the borrowers/ sellers after getting back the money or executing the reconveyance deeds.
The trial court placing reliance upon Budhmal Vs. Mahaveer Prasad, AIR 1988 SC 1772 ultimately held that relationship of landlord and tenant was not proved. However under issue No.3 it held that in view of Section 23 of P.S.C.C. Act it had no jurisdiction to entertain the suit. Ultimately, the suit was dismissed.
The lower revisional court agreed with the findings of the trial court, however it held that under Section 23 of P.S.C.C. Act, suit could not be dismissed only plaint could be directed to be returned for filing before regular civil court. Accordingly, the revisional court remanded the matter to the trial court/ J.S.C.C. and directed it to return the plaint under Section 23, P.S.C.C. Act.
In the instant case, there was no allegation that on the execution of the sale deed by Ram Lal and Sohan Lal simultaneously agreement for reconveyance had also been executed by Kamta Prasad. Accordingly, the proviso to Section 58(c) of Transfer of Property Act was not directly involved.
Learned counsel for respondents has cited two authorities of the Supreme Court, one is reported in Ram Lal and other Vs. Bhagua and others, 2006 (1) SCC 168 and the other in Biswanath Prasad Singh Vs. Rajendra Prasad, 2006 (4) SCC 432. In the first authority, it has been held that all the attending circumstances including mutation in revenue records will have to be taken into consideration to decide as to whether the transaction is sale, mortgage by conditional sale or loan transaction. Supreme Court held that the High Court in second appeal rightly reversed the findings of both the courts below and held that sale deed in question was not in fact a real sale deed but was by way of surety. In the said case, it was also held that mere entry of the purchaser in revenue record was not conclusive.
I do not find least error in the findings of the lower revisional court. As far as judgment of the trial court is concerned, there is no fault in it in so far as it has held that question of title was involved. However, the trial court had committed manifest error of law in dismissing the suit, which was corrected by the lower revisional court.
Writ Petition is therefore dismissed. However, it is clarified that no finding regarding title recorded either by the trial court/ J.S.C.C. or revisional court or in this judgment shall be taken into consideration by the regular civil court, where plaint is filed after taking that back from the court of J.S.C.C.
Order Date :- 10.07.2013
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