Abid Husain (Deceased) And 9 Ors. vs Fazlur Rahman Khan Sherwani ...
2013 Latest Caselaw 1588 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Judgement reserved on 17.04.2013
 
Judgement delivered on 02.05.2013
 

 

 
Court No. - 18
 

 
Case :- CIVIL REVISION No. - 181 of 2013
 
Petitioner :- Abid Husain (Deceased) And 9 Ors.
 
Respondent :- Fazlur Rahman Khan Sherwani (Deceased) And 4 Ors
 
Petitioner Counsel :- Vivek Saran
 
Respondent Counsel :- Ram Kaushik,Priyanka Midha
 

 
Hon'ble Sanjay Misra,J.

This is a Civil Revision filed under Section 25 of the Small Causes Court Act against the judgment dated 16.03.2013 passed in SCC Suit No. 11 of 1995 (Fazlur Rehman Khan Sherwani Vs Abid Hussain) by the Additional District Judge, Court no. 19, Aligarh.

During the pendency of the suit the plaintiff died and was substituted by his heirs and legal representatives as plaintiffs no. 1/1 to 1/4. The defendant also died and was substituted by his heirs and legal representatives as defendants no. 1/1 to 1/9.

Heard Sri Vivek Saran learned counsel for the revisionists and Ms. Priyanka Midha learned counsel for all the opposite parties (caveators). Ms. Midha states that the records necessary for decision of this Revision are already on record along with the affidavit filed in support of the stay application hence she does not intend to file any reply there to and the Revision be heard and decided finally.

The Trial Court has decreed the suit of the plaintiffs for eviction, recovery of Rs. 22,916/02 p. as arrears of rent, water tax, house tax and compensation for use and occupation. It has directed the defendants to vacate the premises within two months and hand over its possession to the plaintiffs and deposit the decretal amount within the same period. Any amount deposited by the defendant during pendency of the suit be given due adjustment. The premises has been described as Quarter no. 5/2 Fatima Manzil, Banna Devi, Aligarh bounded by tenant Kafil Ahmad on the east, Syed Nazar Ali on the west, room of Fatima School on the north and G.T. Road on the south.

The issue no. 1 framed by the Trial Court was whether the plaintiff is owner of the premises and whether the revisionist is a tenant @ Rs. 600/- per month rent. The evidence led by the plaintiff was by producing himself as PW-1 and Sadiq as PW-2 and he also filed documents of Nagar Nigam, Aligarh and electricity bills. The revisionist produced the rent receipts and himself deposed as DW-1.

The PW-1 Abdulla Sherwani (plaintiff no. 1/3) deposed that his father late Fazlur

Rehman Khan Sherwani (plaintiff) was owner and landlord of the premises and late Abid Hussain (defendant no. 1) had taken the same on rent @ Rs. 600/- per month from his father in July 1990. The four substituted plaintiffs claimed to be owner and landlord of the premises after their father and that the defendants were their tenants. The PW-2 Sadiq deposed and supported the case of the plaintiff. It was the case of the PW-1 that the defendant late Abid Hussain had defaulted in payment of rent since January 1993 and a notice dated 23.08.1995 was given to which a vague reply dated 19.09.1995 was received. The defendant did not pay the arrears of rent nor he quit hence his tenancy was terminated. The PW-2 Sadiq deposed that he lives opposite the premises and is a washerman who regularly visited the premises to take clothes for washing and to return the clothes after washing and pressing them. He stated that Abid was a tenant in the premises and on several occasion he paid rent of Rs. 600/- per month in his presence.

After the death of Abid Hussain his nine heirs were substituted as defendants. The defendant produced himself as DW-1 (Iqbal Hussain defendant no. 1/1). He deposed that his father late Abid Hussain had paid the rent upto May 1995 to late Fazlur Rehman and his brothers but none of them ever issued any rent receipts.

The Trial Court went through the above evidence of the parties and held that the relationship of landlord and tenant existed between the parties. The fact that the defendant had himself produced some rent receipts of the premises indicated that he was a tenant of the premises. He found that in paragraph 15 of the written statement the defendant has clearly stated that he had paid the rent upto May 1995 to the deceased plaintiff and his brothers but they did not issue any rent receipt. In the oral statement of DW-1 (Iqbal Hussain) he had stated the same thing. In cross examination the DW-1 admitted that he was never present when rent was being paid nor he was present when the premises was being let out and he did not know the terms which were agreed between the parties. The Trial Court held that DW-1 had no knowledge about the terms of the tenancy nor he was ever present when rent was paid hence his evidence could not be believed. Hence the Trial Court decided the issue no. 1 in favour of the plaintiff and held that the plaintiff was the landlord owner of the premises and the defendant was a tenant @ Rs. 600/- per month.

The issue no. 2 framed by the Trial Court was whether the defendant was in arrears of rent for more than four months and inspite of demand notice he had failed to pay the arrears within one month of receipt of notice. The Trial Court held that the burden to prove that there was arrears of rent for more than four months is on the plaintiff and the burden to prove that the entire arrears had been paid was on the defendants.

The Trial Court went through the oral evidence given by DW-1 (Iqbal Hussain)

and held that in view of the admission of this witness that he was not present at the time when the terms of tenancy were settled between his late father and the late father of the plaintiffs nor he was ever present when rent was paid hence his deposition was false and based on hearsay. The Trial Court recorded that no other witness was produced by the defendants.

The documentary evidence produced by the defendant was written in Urdu language and a translation was also filed. It was held by the Trial Court that the said document did not at all indicate that the defendant had paid the rent from January 1993 to May 1995. The said document has been brought on record as annexure 7 to the affidavit.

The Trial Court perused the reply of the defendant given to the notice of the plaintiff and held that the factum of sending a money order of rent of June and July 1995 was not taken by the defendant in his written statement and additional statement nor any receipt of the money order was filed as evidence. It held that the said averments in the reply of the defendant was false.

On the above evidence the Trial Court decided issue no. 2 and held that the defendant was in arrears of rent for more than four months and inspite of notice of demand he had failed to pay the arrears within time.

The third issued framed by the Trial Court was whether the notice given by the plaintiff was valid. It took into consideration the notice dated 23.08.1995 which was to quit and pay the arrears of rent. The defendant in his written statement and additional statement had taken the plea that the defendant no. 1 had no right to terminate the tenancy since he is not owner of the premises. The Trial Court decided this issue and held that even if one of several owners give such a notice then it is not necessary that all the co-owners must also sign it or give another notice. It held the notice dated 23.08.1995 to be a valid notice given to Abid Hussain (defendant).

The fourth issue framed by the Trial Court was whether the defendant had denied the title of the plaintiff and the plaintiff has not waived his right of re-entry and has not condoned the conduct of the defendant. The defendant had set up a case in his written statement that the plaintiff is not owner of the premises and his real brothers namely Nasirur Rehman and Sujaul Rehman are claiming to be owners of the premises and are making separate demand for the rent. He further stated that two other sisters of the plaintiff namely Naima Sultan and Halima Sultan are also demanding rent of the premises from the defendant. According to the case set up by the defendant two other married sisters of the plaintiff no. 1 (Fazurul Rehman Khan Sherwani) namely Alisa Khatun and Munisa Khatun are also demanding the rent of the premises. On these pleas the defendant denied the title of the plaintiff and stated that he had paid the rent upto May 1995 to the

brothers of the plaintiff but they had not issued any rent receipts.

This issue was dealt by the Trial Court and it took into account the notice dated 18.10.1996 which was given by sister of the plaintiff namely Naima Sultan to the defendant stating that the premises being claimed by the plaintiff as Quarter no. 5/2 was actually Quarter no. 5/8 which was under her ownership hence the defendant should pay the rent to her. This plea of the defendant was rejected by the Trial Court on the basis of the affidavit filed by Naima Sultan in the proceedings where she had averred that she never authorised the advocate to send any notice to the plaintiff and she further averred that Quarter no. 5/8 Fatima Manzil is under the control and supervision of the plaintiff. The Trial Court further held that when the defendant had himself stated that he had paid the rent to the brothers of the plaintiff and on the other hand he was denying their title then he cannot plead that by paying rent to a co-owner would mean that the plaintiff is not the owner.

On the question of deposit of arrears under Section 20 (4) of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act 1972 it was held that the defendant had not deposited the amount with interest hence he was not entitled to its benefit. The issue no. 4 was therefore decided in favour of the plaintiff and against the defendant.

As a result of the findings recorded on Issues no. 1 to 4 the Trial Court held that the plaintiffs are entitled to the reliefs claimed and hence issue no. 5 was decided in terms there of.

The suit of the plaintiff was decreed for recovery of Rs. 22,916/- arrears of rent, house tax, water tax and compensation for use and occupation and a decree of eviction was passed by the Trial Court.

Learned counsel for the revisionist/tenant has submitted that the findings of the Trial Court on the rate of rent are not based on any evidence and it has not taken into account the deposit made by the tenant under Section 30 of the Act at the rate of Rs. 150/- per month which was clear from the letter written by the defendant in the letter dated 05.11.1987 (annexure-7). He has argued that when there were several owners of the premises after the original owner Fazurul Rehman Sherwani died then the notice of demand/quit and the suit itself was not maintainable at the instance of only one owner. According to him all the co-owners had to be party in the notice and the suit which required the tenant to pay the arrears of rent and to quit.

In support of his submission learned counsel for the revisionist has referred to the following decisions:-

(1) Smt. Bela Das & Others Vs Samarendra Nath Bose AIR 1975 SC 398.

In this case the defendant had admitted that he was a tenant under the plaintiff but was asserting that there were some more landlords of the premises hence he could not alone claim a decree of eviction. However his defence was struck of and the hearing of the suit was exparte. The High Court in a second appeal remitted the matter to the Trial Court to allow opportunity to the parties to adduce their evidence and for fresh decision. The Supreme Court held that when the entire defence was struck of the suit rightly proceeded exparte and the view taken by the High Court was erroneous in law.

In the present case there is no issue that the defence of the revisionist was struck of hence no benefit can be derived from the said decision.

(2) Sheela and others Vs Firm Prahlad Rai Prem Prakash 2002 3 SCC 375.

In this case the tenant contested the suit and pleaded that the plaintiff is not owner of the premises but in his written statement he admitted that the plaintiff is his landlord. The plaintiff had filed the suit on the ground of bonafide need. It was held that when the tenant denied title of the plaintiff then a decree of eviction could be passed only in favour of an owner landlord. Therefore ownership was a necessary ingredient of the ground for eviction. The plaintiff had to prove his ownership and disclose information leading to vesting of title upon him. The fact was that the tenant was inducted by one Swami Khetsidas and Prahlad Rai was not his natural-born son. It was the partnership firm that was sueing and claiming eviction of the tenant by claiming to be its landlord. Under such circumstances the firm had to prove how the vesting of title came to it hence the denial by the tenant of title of the firm was a bonafide act.

In the present case the facts indicate that there was denial by the tenant of the title of the plaintiff by saying that there were other co-owners who were also demanding rent from him. They admitted to have paid the rent earlier to the deceased plaintiff. After the death of the plaintiff he pleaded that rent was paid to others who were heirs of the deceased plaintiff. Although no evidence was filed by the tenant of such payment of rent but the sister of the plaintiff made an admission in the proceedings by filing affidavit that the premises was under control and supervision of the plaintiff. Moreover the present suit was not filed on the grounds of bonafide need of the plaintiff. It was a suit for eviction on the ground of default in payment of rent. Therefore even a landlord who may be co-owner or be owner could maintain the suit. That the plaintiff (since deceased) was landlord was not a fact in issue between the parties. Hence the denial of title of the heirs of the plaintiff could not result is dismissal of the suit on that ground. The mere assertion of the tenant that the landlord is a co-owner does not amount to denial of his title.

(3) Kailash Chand & Another Vs Mukundi Lal and others 2002 2 SCC 678.

In this case the Hon'ble Supreme Court laid down the law regarding deposit made by the tenant under Section 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972.

In the present case admittedly the tenant did not deposit Rs. 600/- per month under Section 30 of the Act. The suit was filed for eviction on the ground of arrears of rent. But the tenant disputed the title of the plaintiff. Therefore eviction could be ordered. Admittedly the tenant did not make the deposit of rent, interest etc as required under Section 30 of the Act hence the court below has refused the benefit. Moreover the rent upto May 1995 was alleged to have been paid to the co-owners but no receipts were filed nor any evidence was lead to prove the payment. Therefore even if the deposit was made under Section 30 of the Act then it was @ Rs. 150/- per month after May 1995 upto March 1996. Clearly on the own showing of the tenant there was default even upon deposit under Section 30 of the Act and the benefit of such deposit being given to the tenant has been refused by the Trial Court since after adjustment of the said deposit the tenant was still a defaulter.

Learned counsel for the opposite party/plaintiff has submitted that the jurisdiction of the court under Section 25 of the Provincial Small Cause Court Act is only to satisfy itself that the decree or order of the Small Cause Court is in accordance with law. Re-appreciation of the evidence on its own is not permissible. It is argued that findings of fact recorded by the Trial Court cannot be set aside in revisional jurisdiction under Section 25 of the Act unless it is found that there has been miscarriage of justice and the decision was not in accordance with law. It is stated that when there is a dispute of the rate of rent deposited under Section 30 of the Act of 1972 and the rate of rent so deposited is found to be incorrect then the deposit is illegal and invalid hence the liability of payment by the tenant is not discharged. According to learned counsel a co-owner landlord is an owner and it is only the landlord who can terminate the tenancy and institute the suit for eviction. Hence it is not necessary that Notices to quit should be from all the co-owner landlords.

In support of the submissions learned counsel for the opposite party/ landlord has relied on the following decisions:-

1) Ravindra Nath vs. Jagdish 1994 (2) ARC 265.

The scope of the revisional court under Section 25 of the Provincial Small Cause Court has been held to be limited and the findings of fact cannot be set aside unless there is miscarriage of justice or the decision of the Trial Court is not in accordance with law.

It was also held that when there is dispute of rate of rent deposited under Section 30 of the 1972 Act and the rate of rent so deposited was found to be incorrect then the deposit is illegal and invalid.

In the present case the rate of rent claimed by the plaintiff was Rs. 600/ per month. The plaintiff proved the fact by his witness. On the other hand the tenant referred to a document letter dated 05.11.1987 (Annexure-7 to the affidavit). The Court found that this letter was not between the plaintiff and the defendant. It was a letter written by the defendant to his son hence it was not proof of the rate of rent. Admittedly the defendant claimed that he had paid rent upto May, 1995 to the brothers but no evidence was filed or led to prove this plea. Then the defendant claimed to have deposited the rent @ Rs. 150/- per month under Section 30 of the 1972 Act upto March, 1996. Clearly the rate of rent was held to be Rs. 600/- per month and the deposit under Section 30 of the 1972 Act was held to be incorrect rate of rent. The tenant was therefore a defaulter hence the incorrect amount deposited was illegal and invalid even upon adjustment being granted. The tenant had clearly not discharged his liability of payment of rent.

2)Sukhanand vs. IV Additional District Judge AIR 1994 Alld 59.

It was held that proof of payment of rent has to be brought by the tenant. He has to discharge the burden and only his own mere oral testimony of payment is not sufficient proof when no rent receipts have been filed. There was also no explanation as to why the rent was not paid by money order if the landlord refused to issue rent receipts.

In the present case the tenant has stated that he paid rent upto May 1995 to the brothers of the landlord. This was a mere allegation. It has no where been stated that when the brothers of the landlord did not issue rent receipts he attempted to pay the rent upto May 1995 by money order or any other mode so as to prove the payment. The Trial Court has not believed the said plea of the tenant and held him in default. The tenant had therefore not discharged his burden to prove payment of rent upto May 1995 hence he was held to be in default. The finding of the Trial Court is in accordance with law.

3)Ram Pasricha vs. Jagannath AIR 1976 SC2335.

The Supreme Court held that a co-owner landlord is an owner. He could maintain a suit on the ground of reasonable requirement of the family. A denial of title of the landlord in a suit for his eviction is not permissible since he cannot deny that the landlord had title to the premises at the commencement of the tenancy.

In the present case the tenant has categorically accepted that he took the premises on rent from the deceased father of the plaintiffs. He also pleaded payment of rent to him and after his death to his successors. When at the commencement of the tenancy he

accepted the title of the landlord then now in this suit for his eviction on the ground of default he cannot question the title of the co-owner landlord. Moreover in a suit between a landlord and a tenant the question of title to the premises is quite irrelevant.

4) Subhandu Prasad Roy Chandhary vs. Kamla Bala Roy Chandhaury and others AIR 1978 SC 835.

The Supreme Court in this decision has held that notice to quit need not be given by all the co-owner landlords. Even if one of them gives the notice it would be good and valid.

In the present case the tenant does not deny the receipt of notice to quit. His reply to the notice was vague. He took up pleas in his written statement not taken in his reply to the notice hence the Trial Court rejected his plea that another co-owner was demanding the rent from him. Even that co-owner filed affidavit before the Court below and accepted that the plaintiff was in control and supervision of the premises. Therefore to say that notice to quit given by the plaintiff was not signed by the other co-owners would invalidate the notice is incorrect.

The evidence relied upon by the Trial Court on Issue no. 1 was on the own showing of the defendants. They admitted in their written statement that they had paid rent to the deceased plaintiff. The DW-1 deposed and also stated the same thing. The factum of tenancy was therefore recorded by the Trial Court and there is no error in the said finding. In fact the assertion made by the plaintiff that the defendant is a tenant of the premises was duly proved on record.

On issue no. 2 the Trial Court found that the plaintiff had given notice for defaulted rent but a vague reply was given by the defendant. The defendant had produced a letter written by him to his own son stating that the rent is Rs. 150/- per month but the Trial Court held it to be a correspondence inter-se the defendant and his son which could not bind the plaintiff. The DW-1 in his cross examination admitted that he had never been present when the rent was paid nor he was present when the terms of tenancy were settled. On the other hand the PW-2 clearly deposed that rent of Rs. 600/- per month was paid by the defendant to the plaintiff in his presence on several occasions. The defendant on the other hand did not produce any rent receipts nor any other evidence to show that the rent was not Rs.600/- per month. This finding of the Trial Court is based upon evidence available on record and cannot be held to be perverse.

The third issue was decided by the Trial Court by holding that the notice was valid since its receipt was accepted by the defendant when he sent his reply which was on record. Moreover it held that even one co-owner landlord was competent to give notice

for default in payment of rent and to quit. The law on this issue is quite clear and the finding and conclusion of the Trial Court are in accordance with law and based an evidence.

The fourth issue was dealt by the Trial Court which has held that the denial of title of the plaintiffs by the defendants was not permissible for the reason that at the time when the tenancy commenced the defendant accepted the plaintiff as his landlord and owner of the premises. Now he cannot resile from such admission and claim that the plaintiff did not have title. It has been held that after the death of the plaintiff his heirs are the landlords and such fact was also proved by one of the sisters of the plaintiffs who had filed affidavit in the proceedings. The mere fact that rent was demanded also by a co-owner would not be enough to affect the title of another co-owner. These reason given by the Trial Court are in accordance with law and are based on the evidence of the parties.

The last issue on the benefit of Section 20 (4) of the Act of 1972 the Trial Court has categorically held that the deposit as required was not made and the defendants were in arrears and had defaulted. It denied the benefit to the defendants. There is no other evidence to indicate that default was not committed by the defendants hence the finding of the Trial Court cannot be held to be illegal or that miscarriage of justice has occasioned.

The revisional jurisdiction of the court under Section 25 of the Provincial Small Cause Court Act is quite limited. The court cannot re-appraise the evidence and substitute its own finding on a question of fact. The impugned judgment is concluded by findings of fact and there is no illegality in such findings recorded by the Trial Court. No interference is required in this revision.

The Revision is devoid of merit. It is accordingly dismissed.

No order is passed as to costs.

Order Date :- 02.05.2013

Pravin