Aj Prakashan Limited vs Vinit Sachdeva And Another
2017 Latest Caselaw 5064 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
(Judgment reserved on 13.07.2017)
 
(Judgment delivered on 06.10.2017)
 
Court No. - 07
 

 
Case :- S.C.C. REVISION No. - 54 of 2017
 
Revisionist :- Aj Prakashan Limited
 
Opposite Party :- Vinit Sachdeva And Another
 
Counsel for Revisionist :- Chandan Sharma,Jitendra Kumar,Umesh Narain Sharma
 
Counsel for Opposite Party :- Vinayak Mithal,Madan Mohan,Swapnil Kumar
 

 
AND
 

 
Case :- S.C.C. REVISION No. - 53 of 2017
 

 
Revisionist :- Aj Prakashan Limited
 
Opposite Party :- Smt. Santosh Sachdeva (Deceased) And 3 Others
 
Counsel for Revisionist :- Chandan Sharma,Jitendra Kumar,Umesh Narain Sharma
 
Counsel for Opposite Party :- Vinayak Mithal,Madan Mohan,Swapnil Kumar
 

 

 

 
Hon'ble Surya Prakash Kesarwani,J.

1. Heard Sri Jitendra Kumar, learned counsel for defendant-revisionist and Sri Swapnil Kumar, learned counsel for plaintiff-respondents/ landlord.

2. S.C.C. Revision No.54 of 2017 arises from the judgment dated 15.12.2016 in S.C.C. Case No.45 of 2007 (Vinit Sachdeva vs. Aj Prakashan Ltd. and another). The S.C.C. Revision No.53 of 2017 arises from another judgment dated 15.12.2016 in S.C.C. Case No.46 of 2007 {Smt. Santosh Sachdeva (dead) and another vs. Aaj Prakashan Ltd. and another}. Both the aforesaid S.C.C. cases were filed by the plaintiff- respondents for eviction of the defendant-revisionist from the disputed property No.1/3B, Old No. 6-E, M.G. Road, Near St. Johns Crossing, Lohamandi Ward, Agra on account of default in payment of rent and also for recovery of rent with interest. Since the facts involved in both the aforesaid revisions are common and relate to one and the same property and tenant, and as such with the consent of the learned counsels for the parties, both the revisions are being heard together treating the S.C.C. Revision No.54 of 2017 as leading revision and facts of that revision are being noted below.

FACTS OF THE CASE:

3. Briefly stated facts of the present case are that undisputedly the plaintiff- respondents had let out the disputed house to the revisionist-defendant w.e.f. 01.11.1989 at a monthly rent of Rs.8000/-. On account of alleged default in payment of rent, the plaintiff-respondent issued a notice dated 28.06.1997 to the defendant-revisionist whereby she terminated tenancy and demanded arrears of rent and vacant possession of the disputed house. The said notice was replied by the defendant-revisionist by reply dated 24.07.1997 in which he took the stand that the plaintiff-respondent had agreed to sell the disputed house to him and as advance received in cash Rs.30,000/- on 01.03.1997, Rs.30,000/- on 08.03.1997, Rs.30,000/- on 15.03.1997 and Rs.12,000/- on 22.03.1997, total Rs.1,02,000/- and thus, the tenancy cannot be terminated and it still subsists and continuing, and is protected by U.P. Act No.13 of 1972. The relevant portion of reply dated 24.07.1997 to the notice of the plaintiff-respondent dated 28.06.1997, is reproduced below:-

"That no rent is due against my client as alleged in your notice and the tenancy of my client cannot be terminated and it still subsists and continuing and is protected by U.P. Act No.13 of 1972............"

4. The plaintiff-respondent sent a letter replying to the reply of the defendant-revisionist dated 10.10.1997 stating that the defendant-revisionist is in default of payment of rent and no agreement to sell has ever taken place between them. The plaintiff-respondent completely denied the existence of any such agreement to sell or payment of cash amount as alleged by the defendant-revisionist.

5. Since the notice was not complied with by the defendant-revisionist and as such the plaintiff-respondent filed S.C.C. Case No.45 of 2007 and S.C.C. Case No.46 of 2007, which were allowed by the impugned separate judgments both dated 15.12.2016 passed by the Additional District Judge/ Judge Small Causes Court, Court No.6, Agra. Aggrieved with these two judgments, the aforenoted two S.C.C. revisions have been filed.

6. The original plaintiff of S.C.C. Case No.46 of 2007 was Smt. Santosh Sachdeva who was the mother of the plaintiff of S.C.C. Case No.45 of 2007. The aforesaid Smt. Santosh Sachdeva died and she was succeeded by her legal heirs and representatives namely Sri Manohar Lal Sachdeva (her husband) and her son Sri Vinit Sachdeva, who is plaintiff of the S.C.C. Case N.45 of 2007. The notice and the plaints of both the S.C.C. cases show that the plaintiff-respondent has stated that he is the landlord of the disputed property and he inducted the defendant-revisionist as tenant w.e.f. 01.11.1989. This statement of fact was never disputed by the defendant-revisionist rather the defendant-revisionist took two stands, firstly, that an agreement to sell has been entered by the plaintiff-respondent with the defendant-revisionist and secondly, that the plaintiff-respondent is not the owner of the disputed house rather Waqf Allal Aulad Kunwar Mohammad Latafat Ali Khan through Kunwar Javed Ali Khan has been claiming its landlordship in respect of the disputed house. The evidences were led by the parties and the submissions were made and, thereafter by the impugned judgments, both the S.C.C. cases were decreed.

Submissions on behalf of the defendant-revisionist:

7. Learned counsel for the defendant-revisionist has submitted as under:-

(i) The recovery of rent is barred by limitation inasmuch as in paragraph-10 of the plaint, the cause of action is shown to be 23.08.1996 from which date the rent is due whereas the suit was filed on 22.11.2007 and, therefore, the recovery of rent cannot be made beyond three years.

(ii) The unregistered rent deed could be looked into only for the purposes of landlord-tenant relationship in the circumstances when both the parties admit such rent deed. The terms and conditions and rate of rent mentioned in the unregistered rent deed cannot be looked into. The rate of rent as per alleged rent deed was not admitted in the written statement and as such finding on the point of rate of rent is perverse. There is no ascertainment of rent and, therefore, there is no question of default in payment of rent.

8. In support of his submissions, learned counsel for the defendant revisionist has relied upon the judgments of Hon'ble Supreme Court in the case of Anthony Vs. K.C. Ittoop and sons, AIR 2000 SC 3523 and Park Street Properties Private Ltd. vs. Dipak Kumar Singh and another, (2016) 9 SCC 268 and the judgment of this Court in the case of Sushil Kumar Soni (Sarraf) Vs. Smt. Sheela, 2016 (1) AWC 76.

Submission on behalf of Plaintiff-Respondent:

9. Sri Swapnil Kumar, learned counsel for plaintiff-respondent submits as under:

(i) The first notice dated 28.06.1997 was issued by the plaintiff-respondent and in paras-2 and 4 thereof, it was specifically stated that rate of rent is Rs.8000/- per month w.e.f. 01.11.1989 besides excess water charges with enhancement of 20% rent from 01.11.1994 as mutually settled and thus rate of rent w.e.f. 01.11.1994 is Rs.9600/- per month. The reply to the said notice was given by the defendant-revisionist by reply dated 24.07.1997 in which the aforesaid facts were not denied. The contents of paras-1 & 2 of the plaint making statement of fact of landlordship and arrears of rent have not been specifically denied by the defendant-revisionist in his written statement. Thus, the landlord-tenant relationship between the plaintiff- respondent and the defendant-revisionist was fully established apart from the rent deed dated 29.10.1989.

(ii) The defendant-revisionist being tenant cannot challenge landlordship of the plaintiff-respondent in view of the settled law and the provisions of Section 116 of the Evidence Act.

(iii) The findings recorded in the impugned judgment are findings of fact based on consideration of relevant evidences on record and as such, these findings cannot be interfered with in revisional jurisdiction under Section 25 of the Provincial Small Cause Courts Act, 1887.

(iv) No pleading on limitation was made by the defendant-revisionist before the Trial Court and, therefore, it can not be allowed to be raised for the first time in the present revisions inasmuch as it may involve mixed question of facts and law. Besides the suit was not barred by limitation for relief of eviction inasmuch as the limitation of eviction suit is 12 years from the date of termination of tenancy i.e. 28.06.1997 and as such the suit was not barred by limitation. The arrears of rent has been granted by the impugned judgment only for one year prior to the date of filing of the suit and as such there is no perversity in the impugned judgment.

(v) In O.S. No.860 of 1997, the defendant-revisionist himself has made admissions and therefore he is estopped from denying in view of provisions of Sections 17 and 31 of the Evidence Act. In this regard, reference may be had to the judgment of the Hon'ble Supreme Court in the case of Vathsala Manickavasagam and others vs. N. Ganesan and another, (2013) 9 SCC 152 and Food Corporation of India vs. Babu Lal Agarwal, 2004 (2) AWC 1571 (SC), and the judgment of this Court in the case of Anupam Chakravorty vs. VI Additional District Judge, Varanasi and others, 1999 (1) ARC 560.

(vi) Tenant cannot question ownership of the landlord without surrendering possession. Reference in this regard may be had to the judgment of Hon'ble Supreme Court in the case of State of Andhra Pradesh and others vs. D. Raghukul Pershad (dead) by LRs and others, (2012) 9 SCC 584.

(vii) An unregistered rent deed can be looked into only for the purposes of induction of tenancy. Reference in this regard may be had to the judgment of Hon'ble Supreme Court in the case of Park Street Properties Pvt. Ltd. (supra).

DISCUSSION AND FINDINGS:

10. I have carefully considered the submissions of learned counsel for the parties and perused the record before me.

11. From the facts as briefly noted above as well as facts and findings recorded in the impugned judgment, it is clearly established that the defendant-revisionist was inducted as tenant in the disputed house by the plaintiff-respondent w.e.f. 01.11.1989. A notice to quit on account of default in payment of rent was given by the plaintiff-respondent to the defendant-revisionist. In his reply dated 24.07.1997 to the aforesaid notice dated 28.06.1997, the defendant -revisionist, although had set up a case that the plaintiff-respondent had entered into an agreement to sell the disputed house with the defendant revisionist but he had not denied the landlord-tenant relationship and instead stated in paragraph-3 of the reply dated 24.07.1997 that no rent is due as alleged in the notice and the tenancy cannot be terminated and it still subsists and continuing and is protected by U.P. Act No.13 of 1972. Thus, according to own case of the defendant revisionist he continued to occupy the disputed house as tenant of the plaintiff-respondent even after the notice dated 28.06.1997.

12. The plaint version was proved by the P.W.-1 Vinit Sachdeva. In the cross-examination by the defendant-revisionist, the P.W.-1 clearly stated that he and his mother Smt. Santosh Sachdeva are the owner of the disputed house which was purchased from one Smt. Vidyawati Jain in the year 1984 and the said house is not the Waqf property and it was let out by them to the defendant revisionist w.e.f. 01.11.1989. It was further stated in the cross-examination that earlier they had let out ground floor portion of the disputed house to L.I.C. The evidence of P.W.-2 also supported the evidence of P.W.-1 as observed by the court below in the impugned judgment. The defendant-revisionist has not denied the landlordship of the plaintiff-respondent before the court below in his written statement but he had set up a case that Smt. Santosh Sachdeva had also filed S.C.C. case as landlord and a Waqf Allal Aulad Kunwar Mohammad Latafat Ali Khan through Kunwar Javed Ali Khan is also claiming ownership. The D.W.-1 R.B. Singh in his statement, shown ignorance about rent being earlier paid to the plaintiff-respondent. The D.W.-1 during his examination has stated that he has not seen the alleged Waqfnama dated 30.03.1918. The D.W.-2 has also shown ignorance about any lease deed alleged to have been executed by the alleged Mutwalli of the Waqf in favour of one Sri B.R. Nagar. In reply to the notice to quit and in the written statement, the defendant-revisionist took the stand that an agreement to sell was entered by the plaintiff-respondent with the defendant-revisionist for the sale of the disputed house. This itself shows that defendant-revisionist has admitted the plaintiff-respondent as landlord of the disputed house.

13. Thus, as per undisputed facts as briefly noted above and also as per his own stand of the defendant-revisionist he is the tenant of the disputed house of which the plaintiff-respondents are the landlord and, therefore, the defendant-revisionist is estopped from denying the landlordship of the plaintiff-respondents in view of Section 116 of the Indian Evidence Act. This legal position is also supported by the law laid down by Hon'ble Supreme Court in the case of D. Satya Narayan vs. P. Jagdish (1987) 4 SCC 424 and D. Raghukul Prasad (dead) by LRs and others (supra). As a general rule, a tenant who has been let into possession cannot deny his landlord's title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord. Hence, the defendant revisionist who was tenant of the plaintiff-respondent/ landlord cannot deny the landlord's title and he has to surrender possession to the plaintiff-respondent before he can challenge the title of the plaintiff-respondent.

14. So far as the question of limitation raised by the defendant-revisionist for the first time at this revisional stage is concerned, I do not find any substance in it. In the case of Anupam Chakravorty (supra), this Court vide para-5 of the judgment held that there is no provision under the Limitation Act, 1963 providing for limitation in filing a suit against a tenant when a ground for eviction exists under a Statue. Section 20(2) of the Act only creates a bar to file a suit for eviction even though the tenancy has been determined as provided under the Transfer of Property Act. Once the bar is removed, the suit can be filed for eviction within 12 years from the date of determination of tenancy. Paragraph-5 of the judgment in the case of Anupam Chakrvorty (supra) is reproduced below:

"5. Section 20 (2) of the Act further does not provide that the cause of action which may arise at one point of time for filing the suit for eviction on the ground mentioned under Section 20 (2) of the Act should continue till the filing of the suit. If the tenant has raised construction or made any other material alteration which had diminished the value of the property but by the time of filing of the suit or subsequently thereafter it is removed, he cannot plead that the cause of action which did arise, has disappeared before filing the suit or subsequent thereto. Similarly when a tenant has sublet an accommodation, the cause of action for filing the suit arises and it is not necessary that the sub-tenant must continue till the date of filing of the suit. If the tenant has used an accommodation for inconsistent user, he might have again changed the user but the bar created under Section 20 (2). of the Act for filing the suit for eviction is removed. The Act does not provide for any period of limitation for filing the suit on the grounds mentioned therein. In Sallu Lall v. Mani Ram, 1962 A.L.J. 44 (Summary), the Court interpreting Section 3 (1) e) of U. P. (Temporary) Control of Rent and Eviction Act, 1947 which provided that if the tenant who has sublet the whole or any portion of the accommodation without permission of the landlord was liable for eviction, held that as soon as the tenant sublets the accommodation or any part thereof without permission of the landlord, the bar created by Section 3 against suing for ejectment without permission of the District Magistrate is removed and it thereafter becomes open to the landlord to exercise his right to sue for ejectment. The mere fact that a landlord may not, even after coming to know that the tenant has sublet the accommodation or any part thereof, institute a suit for ejectment, would not deprive the landlord of his right to institute such a suit if and when he is pleased. Article 113 of the Limitation Act. 1963, will not be applicable because the right to sue against the tenant arises only after determination of the tenancy. Section 20 (2) of the Act only creates a bar to file a suit for eviction even though the tenancy has been determined as provided under the Transfer of Property Act. Once the bar is removed the suit can be filed for eviction within twelve years from the date of determination of the tenancy."

15. Apart from above, in the case of Food Corporation of India and others (supra), Hon'ble Supreme Court held vide para-13 as under:-

".........It is quite often that question of limitation involves question of facts as well which are supposed to be raised and indicated by the defendant. The objecting party is not supposed to conveniently keep quiet till the matter reaches the Apex Court and wake up in a non- serious manner to argue that the Court failed in its duty in not dismissing the suit as barred by time. The trial Court may not find the suit to be barred by time and proceed with the case but in that event the Court would not be required to record any such finding unless any plea is raised by the defendant. In this connection, learned counsel for the respondent has placed reliance upon a decision in Ittavira Mathai Vs. Varkey and another, (1964) 1 SCR p.495 at page 506, wherein it has been held that if it is a mixed question of fact and law, a party would not be allowed to raise it later on, in case such an objection was not raised at the earliest............"

16. In the case of Park Street Properties Pvt. Ltd. (supra), Hon'ble Supreme Court considered the evidentiary value of an unregistered lease deed in the matter of tenancy dispute and relying upon its earlier three judges bench judgment in the case of Anthony vs. K.C. Ittoop and sons, 2000 (6) SCC 394, AIR 2000 SC 3523, held vide Para-19 as under:

"It is also a well settled position of law that in the absence of a registered instrument, the courts are not precluded from determining the factum of tenancy from the other evidence on record as well as the conduct of the parties. A three Judge bench of this Court in the case of Anthony v. KC Ittoop & Sons, (2000) 6 SCC 394, held as under:

"12.......A lease of immovable property is defined in Section 105 of the TP Act. A transfer of a right to enjoy a property in consideration of a price paid or promised to be rendered periodically or on specified occasions is the basic fabric for a valid lease. The provision says that such a transfer can be made expressly or by implication. Once there is such a transfer of right to enjoy the property a lease stands created. What is mentioned in the three paragraphs of the first part of Section 107 of the TP Act are only the different modes of how leases are created. The first paragraph has been extracted above and it deals with the mode of creating the particular kinds of leases mentioned therein. The third paragraph can be read along with the above as it contains a condition to be complied with if the parties choose to create a lease as per a registered instrument mentioned therein. All other leases, if created, necessarily fall within the ambit of the second paragraph. Thus, dehors the instrument parties can create a lease as envisaged in the second paragraph of Section 107 which reads thus.........

13. When lease is a transfer of a right to enjoy the property and such transfer can be made expressly or by implication, the mere fact that an unregistered instrument came into existence would not stand in the way of the court to determine whether there was in fact a lease otherwise than through such deed.

* * *

16. Taking a different view would be contrary to the reality when parties clearly intended to create a lease though the document which they executed had not gone into the processes of registration. That lacuna had affected the validity of the document, but what had happened between the parties in respect of the property became a reality. Non registration of the document had caused only two consequences. One is that no lease exceeding one year was created. Second is that the instrument became useless so far as creation of the lease is concerned. Nonetheless the presumption that a lease not exceeding one year stood created by conduct of parties remains unrebutted." (emphasis supplied)

Thus, in the absence of registration of a document, what is deemed to be created is a month to month tenancy, the termination of which is governed by Section 106 of the Act. "

17. Thus, the aforesaid unregistered rent deed dated 29.10.1989 would not stand in the way of the Court to determine the factum of tenancy from the evidence on record as well as conduct of the parties. I have already discussed the facts regarding landlord-tenant relationship between the plaintiff-respondent and the defendant-revisionist with reference to the evidence on record and the conduct of the parties. Thus, existence of landlord-tenant relationship between the plaintiff-respondent and the defendant-revisionist has been correctly answered by the court below.

18. The judgment of this Court in the case of Sushil Kumar Soni (supra) relied by the learned counsel for the defendant-revisionist has no application on the facts of the present case as evident from paragraph-34 of the said judgment inasmuch as in that case except an unregistered document, no other document was brought on record to show that the tenancy was for a period of five years. On these facts, it was held that the court below erred in law in relying upon an unregistered document for the purpose of tenure of lease and consequently to that extent, the judgment of the court below was not sustained. The facts of the present case are entirely different which has been discussed above in detail.

19. In view of the above discussion, I do not find any merit in both these revisions. Consequently, both the revisions fail and are hereby dismissed.

Order Date :- 06.10.2017

NLY