Manna Lal (Dead) Through LRs. vs 1st Additional District Judge, Sultanpur and another

Rajiv Sharma, J.—Heard Sri A.K. Baladiha, learned Counsel for the petitioner and learned Standing Counsel for opposite party No.1 and Sri S.K. Mehrotra, learned Counsel for the opposite party No.2.

The instant writ petition has been filed by Munna Lal in the year 1987, assailing the order and judgment dated 29.8.1987 passed by 1st Additional District Judge, Sultanpur as well as the orders dated 9.5.1991 passed on the review application so preferred by means of amendment.

During the pendency of the instant writ petition, petitionerMunna Lal and opposite party No.2Kailash Nath Agrawal died and as such, petitioner''s legal heirs, namely, Prem Kumar and Pradeep Kumar and opposite party No.2''s legal heirs, namely, Arun Kumar Agarwal and Smt. Bala Devi have been substituted as petitioners No.1/1, 1/2 and opposite parties No.2/1, 2/2, respectively.

Brief facts, giving rise to the instant writ petition, are that House No.58Aa, situate at Mohalla Parkins Chowk City Sultanpur was fallen in the share of one Asharfi Lal, son of Tulsi Ram vide partition dated 25.1.1950 but later on Asharfi Lal in lieu of the services rendered gifted the house in question in favour of the petitioner by means of a registered giftdeed dated 22.3.1981. In these circumstances, the petitioner became the owner and landlord of the house in question. Lower portion which is rented to the opposite party No.2Kailash Nath Agarwal on a monthly rent of Rs.25/, whereas the upper portion of the house in question, petitioner is in his possession.

As the opposite party No.2Kailash Nath did not pay the rent of the house in question to the petitioner with effect from 27.3.1981 to 8.11.1982, a notice under Section 106 of Transfer of Property Act was sent to the opposite party No.2 by the petitioner on 8.11.1982 for terminating the tenancy of the opposite party No.2. The opposite party No.2, instead of complying with the notice, sent a reply to the notice vide letter dated 3.12.1982, wherein he has disputed the title of the landlord with regards to house in question and further stated that rent was deposited in the Court in the name of Asharfi Lal. In these backgrounds, the petitioner filed a suit for recovery of arrears of rent and for ejectment of the opposite party No.2, which was registered as 1 of 1984, under Act No.XIII of 1972. Notice was issued to the opposite party No.2.

In reply to the notice, the opposite party No.2 had put in appearance in the suit and filed his written statement, to which the petitioner has filed replication. After going through the pleadings and on the basis of evidence, the trial Court, vide order dated 2.12.1986, decreed the suit for eviction from the premises in dispute and also ordered for recovery of rent and damages with interest at the rate of 9% per annum. The tenant was allowed one month''s time to vacate the shop in question.

Against the order dated 2.12.1986, opposite party No.2Kailash Nath Agarwal filed a revision, which was registered as S.C.C. Revision No.17 of 1986. The revisional Court, vide order dated 28.8.1987. Revisional Court further dismissed the suit with costs throughout. It was also provided that the entire amounts deposited by the defendant in the Court (in the name of) Asharfilal shall be paid to the plaintiffpetitioner on his application. Feeling aggrieved, the petitioner has filed the instant writ petition inter alia on the grounds that the revisional Court exceeded its authority in upsetting the findings of fact that opposite party No.2 was having full knowledge of the giftdeed since the very beginning and after the notice was served upon him and also after the compromise in civil suit chooses not to tender or pay the rent to the petitioner but instead deposited the rent in the Court that too in the name of Asharfi Lal and as such, respondent No.2 had committed default in payment of rent, while exercising jurisdiction under Section 25 of the Small Causes Courts Act.

It has been submitted by the learned counsel for the petitioner the petitioner was put in possession of the upper portion of the house in pursuance of the Gift Deed dated 27.3.1981 and as such, the respondent No.2, who was already a tenant and in possession of lower portion of the house in question by all means came to know about the execution of the gift deed besides the fact that the petitioner also informed him about the gift deed. He further submits that before January, 1984, the opposite party No.2 did not pay the rent to the petitioner or deposited rent in the name of the petitioner inspite of service of demand notice dated 8.11.1982 and also after compromise dated 7.5.1983 held between Asharfi Lal and the petitioner in Regular Suit No.70 of 1982 by which the dispute of ownership was settled. He further submits that the petitioner''s review application, bearing Misc. Case No.8 of 1987, was also rejected by the order dated 10.5.1991, which order has been assailed by means of amendment.

In support of his submission, learned Counsel for the petitioner has relied upon the judgment of the Apex Court rendered in the case of Hanuman Prasad v. III Addl. District Judge and others, (2001 All. C.J. 35) and this Court''s judgment rendered in the case of Uttam Chand and other v. VI Additional District Judge, Jhansi and others, (2000 All CJ, 1393), Rajendra Nath Tripathi and another v. Jagdish Dutt Gupta and another (1999 All CJ, 431), Shahid Hussain v. 1st Addl. District Judge, Bulandshahar and others (1983 All CJ 578).

Refuting the submission of learned Counsel for the petitioner, Sri S.K. Mehrotra, learned Counsel for the opposite party No.2tenant submits that he has not disputed the fact that Asharfi Lal transferred the ownership of the house in question to the petitioner by executing a gift deed dated 27.3.1981 in his favour but the opposite party No.2 acquired the knowledge of the execution of the said gift deed in favour of the petitioner when the petitioner has sent notice dated 8.11.1982. Subsequently, Asharfi Lal served a notice on the opposite party No.2 that he had filed a suit for cancellation of the gift deed. However, the parties to the said suit subsequently entered into a compromise and as such the suit was decided in terms of the said compromise. He submits that Asharfi Lal died in the year 1983 and after his death, the opposite party No.2 remitted the rent for the month of January, 1983 by money order to the petitioner. He submits that in the money order, it has been stated that the rent upto the month of December, 1983 had been deposited by him under Section 30 of Act 13 of 1972 in the Court. But the petitioner refused to accept the said money order as per the postal endorsement on the same.

Sri S.K. Mehrotra, learned Counsel for the opposite party No.2 submits that opposite party No.2 has accepted the petitioner as owner/landlord of the house in question and has never renounced his title as such. He submits that the entire amount has been deposited by the opposite party No.2 before the Court concerned.

Sri S.K. Mehrotra, learned Counsel for the opposite party No.2, contended that a decree on the ground of denial of the landlord''s title by the tenant and such denial being not bona fide could not have been a ground for directing eviction of the tenants in the present case. Firstly, the application for eviction filed by the landlord, do not plead such a cause of action, setting out material facts and as providing a ground for relief of eviction. The plea taken by the defendanttenants in their additional counter does not by itself amount to denial of title so as to render them vulnerable to eviction by attracting applicability of Section 10(2)(vii) of the Act. The basic question was whether the landlords themselves treated to plea taken by the tenants in their additional counter as denial of their title and if that be so, the landlords should have amended their application for eviction incorporating the averment that the said additional counter amounted to denial of title of the landlords and such denial was not bona fide. Thereupon, the tenants would have had an opportunity of explaining the facts and circumstances in which the additional counter, along with the pleas raised therein, came to be filed and if that amounted to denial of landlords title then how did they propose to justify such denial as bona fide. Such pleas could have been the subject matter of trial and evidence adduced by the parties followed by expression of opinion by the Controller as to whether a ground for eviction was made out or not. Before the Controller none of the parties were alive to the fact that alleged denial of title by the tenants could possible be clicked by the landlords as a ground of eviction. In support of his submission, learned Counsel for the opposite party No.2 has relied upon the judgment of the Apex Court rendered in the case of J.J. Lal Pvt. Ltd. and others v. M.R. Murali and another, (2002) 3 Supreme Court Cases 98.

Sri S.K. Mehrotra, learned Counsel for the opposite party No.2 further submits that the scope of interference in a certiorari proceedings by saying that a writ of certiorari is issued for correcting the errors of jurisdiction committed by the Courts or Tribunals in cases where they exceed their jurisdiction or fail to exercise it or exercise it illegally or improperly, i.e., where an order is passed without hearing the party sought to be affected by it or where the procedure adopted is opposed to principls of natural justice. A caution was indicated by saying that the jurisdiction to issue a writ of certiorari is a supervisory one and in exercising it, the court is not entitled to act as a Court of appeal. That necessarily means that the findings of fact arrived at the interior Court or Tribunal be binding. An error of law apparent on the fact of record, could be corrected by a writ or certiorari but not an error of fact, however, grave it may appear to be. In support of his submission, he has relied upon the judgment reported in 1984 (1) ARC 679 (SC), Jagdish Prasad v. Smt. Angoori Devi.

Learned Counsel for the opposite party No.2 has also submitted that landlord is not entitled to decree for ejectment of tenant on the ground of forfeiture if he has not served tenant with notice determining tenancy on the ground of forfeiture.

I have heard learned Counsel for the parties and perused the records.

It is well settled proposition of law that this Court in exercise of power under Article 226 of the Constitution of India will not sit in appeal over the concurrent findings of facts arrived by the prescribed authority and Hon''ble Supreme Court in the case of Ashok Kuamr and others v. Sita Ram, (2001) 4 Supreme Court Cases, 478 has held that:

�The position is too well settled to admit of any controversy that the finding of fact recorded by the final court of fact should not ordinarily be interfered with by the High Court in exercise of writ jurisdiction, unless the Court is satisfied that the finding is vitiated by manifest error of law or is penalty perverse. The High Court should not interfere with a finding of fact simply because it feels persuaded to take a different view on the material on record.�

The said view was further reiterated by Hon''ble Supreme Court in the case of Ranjeet Singh v. Ravi Prakash, (2004) 3 Supreme Court Cases 682.

Moreover, the Apex Court in the case of Mst. Bega Begum and others v. Abdul Ahad Khand (Dead) by L.R. and others, (1979) SCC 273 has held that it is not doubt true that the tenant will have to be ousted from the house if a decree of eviction is passed but such an event would happen eventually whenever a decree for eviction is passed and merely because the tenant will be ousted from the premises where he was running his activity cannot be itself be considered to be a hardship and be availed ground for refusing the landlord a decree for eviction.

In the instant case, the petitioner is the landlord and the opposite party No.2 is the tenant. The version of the petitioner is that the petitionerlandlord wants to evict from the house in question from the opposite party No.2 on the ground of nonpayment of rent, whereas the opposite party No.2tenant did not dispute the factum of landlord but he contested the matter with the facts that he has deposited the entire rent within the time but the petitioner refused to accept it and without showing any bona fide needs, harassed him by saying that the house in question be evicted on the ground of nonpayment of rent.

It is pertinent to mention here that the principle that surround and govern forfeiture of tenancy rights may be enumerated as under:

�(1) The denial of the landlord''s title must be unequivocal and absolutely definite, for the law strongly leans against forfeiture.

(2) When the landlord''s title is denied in writing should be construed as a whole without giving undue emphasis to one or the other party of it. The writing should be examined with a view to ascertain whether the writer really intended to renounce his character as a lessee by setting up a titled to the demised property in himself or in a third party. When the writing consists of a written statement, it should not be overlooked that pleadings in our country are often marked by prolixity and flourish, and in interpreting pleadings due allowance should be made for these inverterate defects.

(3) The onus of proving forfeiture of tenancy rights lies on the landlord''s plaintiff, and

(4) The lessee may in good faith and this own protection put the transferee of his lessor to strict proof of his title to the demised property before making payment to him.

If these principles are applied to the present case, it is difficult to hold that there was forfeiture of tenancy rights. If the written statement is read shorn of the flourish contained therein, the substance of the plea would be that the plaintiffs were put to prove right to realize rent from the defendant on the basis of the gift deed executed in their favour by the original landlord. The defendanttenant did not renounce his character as lessee by setting up a title in third person or by claiming title in himself.

For the aforesaid reasons, I do not find any illegality and infirmity in the impugned order. The writ petition lacks merits and is hereby dismissed.

(Petition dismissed)