Kasim vs Uma Devi

Mrs. Poonam Srivastav, J.

Heard Sri Rishikesh Tripathi, counsel for petitioner and Sri A.C. Srivastava, counsel for caveator/respondent.

This is tenant''s petition arising out of J.S.C.C. Suit No.34 of 1998 Smt. Uma Devi Vs. Kasim. Landlady/respondent purchased house nos.71/2 and 73/1 situated in Mohalla Chaudharayana, Jhansi by means of registered sale deed dated 19.1.1996 from previous owner Uma Shanker Pathak.

Landlady claimed that petitioner who is tenant at monthly rent of Rs.20/, is defaulter since 1989. A demand notice dated 18.11.1996 under Section 106 Transfer of Property Act, for arrears of rent and also determining tenancy was served on tenant. Petitioner denied arrears and claimed that tenant was not aware about sale of houses. Prior to service of notice dated 18.11.1996, no rent was due. Original sale deed dated 19.1.1996 was brought on record as paper no. 26Ga. Both houses 71/2 and 73/1 were purchased by contesting respondent. Recital of sale deed is clear that it is petitioner, who is tenant of both accommodations. Name of Munni Bai, who was admitted to be in possession of one of houses, was not mentioned in the sale deed. In the assessment record of Nagar Nigam pertaining to year 1975 to 1990, it is petitioner alone, who was recorded tenant, therefore, eviction was sought on the ground of subletting.

The Judge Small Causes Court dismissed the suit vide judgment and order dated 1.12.2003 holding that demand notice claiming rent for the period prior to date of notice is invalid, therefore, landlady was not entitled to institute a suit for eviction on the basis of said notice, which was held to be illegal. However, finding on the question of subletting by Judge Small Cause Court was that Munni Bai is not a tenant but she was permitted by existing tenant to occupy accommodation, which was purchased by present landlady by means of sale deed dated 19.1.1996 and thus agreed with the landlady''s contention that one room was sublet to Smt. Munni Bai.

Landlady/respondent preferred J.S.C.C. Revision No. 2 of 2004 before Additional District Judge, Jhansi. The said revision was allowed by Additional District Judge/Special Judge (SC/ST Act), Jhansi vide judgment and order dated 16.7.2009, which is impugned in the instant writ petition.

Submission of counsel for tenant/petitioner is that once notice was held to be invalid, suit was not maintainable. Besides, tenant had deposited entire amount required to prevent eviction and to avail benefit provided under Section 20 (4) of U.P. Act No. XIII of 1972 (hereinafter referred to as the Act). The Judge Small Causes Court did not record its finding on this question in respect of which specific issue no.4 was carved out. Since the court had held notice under Section 106 Transfer of Property Act to be invalid, which was the basis of suit, therefore, no finding was recorded on the question granting benefit under Section 20 (4) of the Act.

It is further submitted that revisional court while disagreeing with finding of Judge Small Causes Court on the question of notice was liable to decide availability of benefit to tenant under Section 20 (4) of the Act.

I have perused judgment of Additional District Judge. While considering issue no.4, revisional court was of the view that in the event this question granting benefit under Section 20(4) of the Act is to be considered, then matter will have to be remanded. However, revisional court agreeing with findings on the question of ''subletting'' of trial court confirmed it. So far finding of trial court on the issue of ''subletting'' was still available to the landlady, revisional court was of the view that it is good enough ground for granting relief of eviction of tenant from disputed accommodation, therefore, allowed the revision.

I have scrutinized the judgment of the revisional court. I do not agree with submission of counsel for petitioner that revisional court''s judgment is perverse for the simple reason that admittedly notice was served to tenant under Section 106 Transfer of Property Act, after sale of houses in question, it is the contesting respondent who became owner. It was incumbent on tenant to have come up with specific case that whether during intervening period 19.1.1996 and date of notice dated 18.11.1996, any rent was tendered to previous landlord. It cannot be presumed that tenant neither paid rent to previous landlord nor to present one, therefore, he cannot claim a blanket right to continue in possession without deposit of rent. However, even if findings of revisional court are ignored on the question of validity of notice as well as benefit of Section 20 (4) of the Act, two courts below have recorded concurrent findings of fact. So far finding and conclusion on the ground of ''subletting'' is concerned, it has not been challenged by petitioner before this Court. It is apparent that the question of ''subletting'' was concluded by trial court and the same was also not challenged before revisional court. Thus the two courts have held concurrently that disputed accommodation was sublet to Smt. Munni Bai and thus sufficient to decree the suit for violation of Section 20 (2) (e) of the Act. The findings are finding of fact besides revisional court has held the notice to be a valid notice. The question of arrears of rent and specially claim by the present landlady for the amount after purchase of the property and service of notice is not being taken into consideration, the suit is decreed on the ground of ''subletting'' alone.

In view of all these circumstances, I do not find it a fit case for interference in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India. The writ petition lacks merits and is, accordingly, dismissed.