Nandkishore Bhardwaj vs Shoorveer Singh
2022 Latest Caselaw 5780 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

              S.B. Civil Writ Petition No.10074/2016

Nandkishore Bhardwaj Son Of Shri Manohar Lal, Resident of Plot
No. 12/123, Kaveri Path, Mansarowar, Jaipur
                                                                  ----Petitioner
                                   Versus
Shoorveer Singh son Of Shri Jagat Singh Bhandari, Resident of
Plot No. 12/94, Kaveri Path, Mansarowar, Jaipur Raj.
                                                                ----Respondent

For Petitioner(s)        :     Mr. Bipin Gupta, Adv.
For Respondent(s)        :     Mr. O.P. Mishra, Adv.



         HON'BLE MR. JUSTICE ASHOK KUMAR GAUR

                                    Order

24/08/2022

This writ petition has been filed by the petitioner, challenging

the order dated 18.08.2015, passed by the Rent Tribunal, Jaipur,

and the order dated 01.06.2016, passed by Rent Appellate

Tribunal, Jaipur, dismissing the appeal preferred by the petitioner.

The brief facts of the case are that the respondent filed an

application under Section 9 of the Rent Control Act, 2001, for

eviction of the premise-residential house, on the ground of,

default in payment of rent. The application of the respondent was

allowed by the Rent Eviction Tribunal, holding that there was a

relationship of landlord and tenant and as such, the petitioner was

directed to hand over the possession of the property-residential

house within three months from the order and further the arrears

of rent of Rs. 43,200/- alongwith interest @ 6% per annum, was

also required to be paid by the petitioner.

                                          (2 of 9)                      [CW-10074/2016]



      The   petitioner   felt    aggrieved          against      the    order   dated

18.08.2015, and he preferred appeal before the Appellate Forum

and his appeal has also been dismissed by order dated

01.06.2016.

Learned counsel for the petitioner submitted that the issue of

landlord and tenant relationship, has wrongly been decided by

both the Courts below, as the petitioner was himself, the owner of

the disputed property.

Learned counsel for the petitioner submitted that the

allegation of the non-petitioner to be in possession since 1992, as

the owner, was not proved and even no rent was ever paid by the

petitioner to the respondent.

Learned counsel for the petitioner submitted that the original

allottee of the property was one Rajendra Kumar Jain and the

petitioner had last will in his favour from the original allottee and

as such, he acquired ownership of the disputed premise.

Learned counsel for the petitioner submitted that the sale

deed dated 09.01.2006, claiming title in favour of the non-

petitioner was a frivolous document and the same did not create

any right in his favour against the petitioner.

Learned counsel for the petitioner has made the following

submissions:-

1. That the Courts below have committed serious error in

deciding issue relating to relationship of the petitioner and the

non-petitioner, as landlord and tenant. The document relied by the

Courts below i.e. exhibit 9 & 10 were not complete document to

find out title in favour of the respondent, as the document in

question-agreement dated 13.10.1992, executed by the original

owner-allottee-Rajender Kumar Jain in favour of the one Anil

(3 of 9) [CW-10074/2016]

Badwal, was not having any amount of consideration being made

in the said agreement at page no.3 and there was also

overwriting/cutting in the name.

Learned counsel for the petitioner submitted that another

document-exhibit 10, relied by the Courts below was the will

executed by Rajender Kumar Jain, in favour of Anil Badwal, where,

there was a cutting and the said will was a frivolous document and

could not have been relied upon.

2. The petitioner had proved his ownership on the basis of

document in his favour i.e. will, agreement and power of attorney.

3. The Court below could not have been swayed only on the

basis of sale deed in favour of the non-petitioner as seller of the

property i.e. Anil Badwal, had no right to execute the sale deed.

4. The non-petitioner had sent a notice to the petitioner dated

06.12.2005, claiming rent and ownership of the property,

however, the sale deed was executed on 09.01.2006, and in spite

of such fact being proved that there was no relationship of

landlord and tenant, the non-petitioner has been declared owner

of the property and eviction order has also been passed.

5. The Rent Tribunal in view of serious dispute of relationship

between the petitioner and the non-petitioner of landlord and

tenant, could not have decided the complex issue and the matter

should have been referred to the Civil Court as the eviction

proceedings, are summary in nature.

6. Learned counsel for the petitioner has placed reliance on

judgment passed by this Court in S.B. Civil Writ Petition

No.5678/2011, titled as Sanwar Lal Rai Vs. Appellate Rent

Tribunal, Jaipur & Anr., decided on 28.02.2013 and in S.B.

Civil Writ Petition No.6411/2016, titled as Virendra Kumar

(4 of 9) [CW-10074/2016]

Jain Vs. State of Rajasthan & Ors., decided on 02.01.2018, by

this Court and AIR 2021 (SC) 1741 titled as Madan Mohan

Singh Vs. Ved Prakash Arya, decided on 05.03.2021.

Learned counsel on the strength of the said judgments

submitted that if relationship of the landlord and tenant, is not

established beyond reasonable time, then the Rent Tribunal cannot

pass an order of eviction against the person.

Per contra, learned counsel appearing for the respondent-Mr.

O.P. Mishra submitted that both the Courts below have recorded

the concurrent findings on the question of relationship of landlord

and tenant and default in payment of rent and as such, this Court

will be slow to interfere in a writ of certiorari, where a question of

fact has been examined by the Courts concurrently, after

considering the evidence.

2. Learned counsel for the respondent submitted that the re-

appreciation of evidence in writ jurisdiction may not be done and

the evidence i.e. oral as well as the documentary evidence led by

both the parties, has been considered and discussed in detail by

the Courts below.

3. Learned counsel for the respondent submitted that the Court

below has considered the sale deed in favour of the respondent,

as he purchased the property by registered instrument and the

non-petitioner had submitted all original documents pertaining to

allotment of plot including allotment letter and possession letter,

issued by the Rajasthan Housing Board.

4. Learned counsel for the respondent submitted that the

petitioner himself had executed a document-exhibit 12, wherein

he stated to vacate the suit premise and was to hand over the

same to the landlord.

(5 of 9) [CW-10074/2016]

5. Learned counsel for the respondent submitted that once the

registered sale deed was in favour of the non-petitioner, then only

on the basis of power of attorney, agreement and will, the

petitioner could not have been treated as owner of the property

and a false plea taken by the petitioner, was rightly rejected by

the Court below.

6. Learned counsel for the respondent submitted that suit

property bearing house No.12/123, Mansarower, Jaipur, was

allotted to the original allottee and he had taken possession on

11.03.1987 and Rajender Kumar Jain, executed an agreement to

sell and will in favour of one Anil Badwal on 13.10.1992 and he

also executed the power of attorney in favour of the one Pyarelal,

which was registered.

7. Learned counsel for the respondent submitted that since the

original allottee, had expired on 08.06.1995, then the non-

petitioner had entered into an agreement to sell with Anil Badwal

and he executed a sale deed in favour of the respondent, which

was duly registered and the power of attorney holder-Pyarlal, had

remained witness in the sale deed and as such, all documents

were handed over to the non-petitioner.

8. Learned counsel for the respondent places reliance on

judgments passed by the Apex Court in (2008) 4 SCC 451-S.K.

Maniraju Vs. State of Karnataka, (2008) 1 SCC 330-Usha

Vs. Ravindra and (2010) 5 SCC 510-Mohd Shahnawaz Vs.

First Addl District Judge.

9. Learned counsel on the strength of said judgments,

submitted that the writ jurisdiction under Article 226 of the

Constitution of India, may not be used to set aside the concurrent

finds and facts.

(6 of 9) [CW-10074/2016]

I have heard the submissions made by both the learned

counsel for the parties and perused the material available on

record.

The moot question before this Court is to consider the

relationship of landlord and tenant between the petitioner and the

non-petitioner.

This Court is also required to consider as whether findings

recorded by the Court below on the issue of relationship of

landlord and tenant, are rightly recorded or not.

This Court finds that the Rent Eviction Tribunal while framing

issue No.3 in relation to relationship of landlord and tenant, has

considered the oral as well as documentary evidence and after

considering the entire evidence, it came to conclusion that the

relationship of the petitioner with the non-petitioner was of tenant

and landlord.

The Rent Eviction Tribunal has found that the registered sale

deed was executed in favour of the non-petitioner and further the

petitioner had only agreement, will and power of attorney in his

favour.

The Court below in view of registered document in favour of

the non-petitioner has rightly come to conclusion that for

establishing relationship of landlord and tenant, registered

document, established such relationship.

This Court further finds that the Rent Tribunal has taken into

account document executed by the petitioner himself, wherein, he

stated that he vacated the suit premise and handed over to the

landlord and further signatures of the petitioner were admitted by

his own witness P.W. 4.

(7 of 9) [CW-10074/2016]

The Court below further found that the petitioner himself

had admitted signature of the original allottee Rajender Kumar

Jain, on documents produced as exhibit 9 & 10 and further the

witness produced by the petitioner-Shankar Lal Sharma, also

admitted in respect of alleged agreement that no consideration

was ever paid in his presence.

This Court finds that the Court below has also recorded that

there was a stipulation in the registered sale deed in favour of the

non-petitioner, whereby, the petitioner was shown to be tenant in

the suit premise.

The submission of the learned counsel for the petitioner that

the issue of landlord and tenant ought not to have been decided

by the Rent Eviction Tribunal as it conducts summary proceedings,

suffice it to say by this Court, that in eviction matter, if there is a

denial of relationship by a tenant and the tenant wants to absolve

himself to pay rent on said account, the Rent Eviction Tribunal is

required to consider the relationship after taking into account the

relevant evidence produced before it.

There is a person who has got a sale deed in his favour and a

person who does not have any title in the property or proper

execution of legal document in his favour, later cannot be

permitted to dispute the relationship of landlord and tenant.

The submission of the learned counsel for the petitioner that

since the petitioner had last will in his favour and as such, the

earlier will executed in favour of any other person, will have no

sanctity in eye of law, suffice it to say by this Court, that if

registered sale deed has been executed, the relevance of last will

or previous will, will not be a relevant consideration for deciding

(8 of 9) [CW-10074/2016]

the issue of relationship of landlord and tenant for considering the

issue of eviction before the Rent Tribunal.

The submission of the learned counsel for the petitioner that

the document which was produced by the non-petitioner was a

forged document as there was cutting/overwriting at certain place

and further there was no detail with the regard to consideration

paid by the non-petitioner to the original allottee, suffice it to say

by this Court, that the oral evidence as well as the documentary

evidence led by both the parties, have been examined in detail

and then findings have been recorded by the Courts below and as

such, this Court is not required to re-appreciate the evidence,

while exercising the writ jurisdiction.

This Court finds substance in the submissions of the learned

counsel for the respondent that the relationship of landlord and

tenant is a question of fact which has been examined by both the

Courts below and as such, re-appreciation of evidence will not be

permitted by this Court, exercising the writ jurisdiction.

The reliance placed by the learned counsel for the petitioner

in the case of Sanwar Lal Rai Vs. Appellate Rent Tribunal, Jaipur &

Anr. (supra), this Court finds that the said judgment is of little

assistance to the learned counsel for the petitioner. This Court in

that case, recorded the fact that the tenant had acquired

possession of the flat on the strength of agreement to sell and fact

of payment to the owner was supported by evidence and further

the remaining amount was to be paid by the tenant by way of

demand draft as sale consideration and considering these facts of

the case, this Court came to conclusion that relationship of

landlord and tenant, was established as due payment was made to

the person by the tenant.

(9 of 9) [CW-10074/2016]

This Court finds that in the present case, the non-petitioner

had a registered sale deed in his favour and further the petitioner

has not been able to prove from any cogent evidence, his right to

retain the property as landlord.

The reliance placed on the judgment passed by the Apex

Court in the case of Madan Mohan Singh Vs. Ved Prakash

Arya (supra), the Apex Court found that the oral agreement of the

tenancy can also be taken into account and conduct of parties

before and after creation of relationship, is relevant for finding out

their intention. This Court finds that the said judgment was passed

by the Apex Court after regular second appeal was decided by the

High Court and as such, the said judgment is of no assistance.

The reliance placed by the learned counsel for the petitioner

on the judgment passed by this Court in Virendra Kumar Jain

Vs. State of Rajasthan & Ors. (supra), this Court finds that the

issue before this Court was with respect to the title of the land, as

whether, it was the Jaipur Development Authority or the Forest

Department and as such, this Court found that ownership of

property, cannot be determined in the eviction proceedings.

This Court accordingly, finds that no error has been

committed by the Courts below and accordingly, the present writ

petition stands dismissed.

(ASHOK KUMAR GAUR),J

Bhavnesh Kumawat/Ramesh Vaishnav

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