Sharif Ahmad vs Irshad

S.U. Khan, J.—This is tenant''s writ petition arising out of a suit filed by landlord/respondent against him for recovery of rent only. The suit was registered as S.C.C. Suit No. 33 of 2001 and was decreed by J.S.C.C., Bijnor through judgment and decree dated 1142002 for recovery of Rs. 2,250/ as rent from 1681996 to 3071997 at the rate of Rs. 300/ per month. Through the said decree future rent was also awarded. Tenant/petitioner filed a revision against the said judgment and decree under Section 25 P.S.C.C. Act being S.C.C. Revision No. 24 of 2002. The District Judge, Bijnor through judgment and order dated 1692003 substantially confirmed the judgment and decree passed by the trial Court. However, decree for future rent awarded by the trial Court was set aside by the Revisional Court. This writ petition is directed against the aforesaid judgment of the Revisional Court and judgment and decree passed by trial Court.

As far as decree of the trial Court awarding future rent is concerned it was clearly beyond jurisdiction. In a suit in between landlord and tenant unless possession is asked for the pendente lite and future rent cannot be decreed (Order XX, Rule 12, C.P.C.). The Revisional Court rightly set aside that part of the decree.

Landlord/respondent Irshad Ahmad claimed ownership/landlordship through sale deed executed on 1681996 in his favour by Maqudoom Ali and Abbas Ali who in turn had purchased the property in dispute from Shafiq Ahmad on 2251986 (registered on 2571986).

Defendant petitioner pleaded that the property in dispute neither belonged to the plaintiff, nor to Maqudoom Ali and Abbas Ali nor to Shafiq. He asserted that the shop in dispute belonged to wakf Bashirunnisha whose mutwalli was Syed Sharif Haider and after his death his son Zaheerul Hasan became mutwalli and that rate of rent was Rs. 10/ per month which he was paying to the mutwalli. The plaintiff respondent filed both the sale deeds of 1986 and 1996. Defendant did not adduce any documentary evidence to show that property belonged to wakf. Alleged mutwalli Zaheerul Hasan was also not examined. No rent receipt was filed by the defendant. On the other hand he asserted that mutwalli was not giving any receipt. Plaintiff also filed house tax receipts showing payment of house tax by him of the property in dispute. Both the Courts below on the basis of the evidence rightly came to the conclusion that plaintiff had proved his ownership/landlordship of the property in dispute and defendant miserably failed to prove that property belonged to wakf and he was tenant of wakf. The findings of the Courts below in this regard are confirmed.

However, as far as finding regarding rate of rent being Rs. 300 per month is concerned, no immunity from interfere in exercise of writ jurisdiction can be granted to the same.

The said finding is based on no evidence. In the first sale deed it is mentioned that the annually rent of the property in dispute is Rs. 10 per month. In the second sale deed of 1996 nothing is mentioned recording rate of rent. Neither Shafiq Ahmad nor Maqudoom Ali nor Abbas Ali has been examined by the plaintiff to prove rate of rent. Petitioner is tenant of the property in dispute since before its purchase by the landlord/respondent hence on the basis of his personal knowledge he cannot say anything regarding rate of rent. Courts below had placed reliance upon the statement of P.W. 2 Sabir Hussain for recording the finding that the rale of rent was Rs. 300/ per month. Copy of statement of Sabir Hussain is Annexure6 to the writ petition. The statement was recorded in 20012002. In his statement Sabir Hussain at two places stated that in his presence the tenant/petitioner about seven years before paid rent at the rate of Rs. 300/ per month to Shafiq Ahmad. He also clearly stated that the shop was given on rent by Shafiq Ahmad to tenant/petitioner. He also stated that shop was constructed about 13 to 14 years before which comes to about 198788. This statement is wholly unreliable as Sahfiq had already sold the shop in the year 1986 i.e. about 15 years before the recording of evidence of P.W. 2 Sabir Hussain, hence there was absolutely no question of payment of rent by petitioner to Safiq Ahmad seven years before i.e. in or about 199495. Period of construction given by this witness also comes after the sale deed by Shafiq Ahmad in the year 1986 while he clearly deposes in his statement that Shafiq gave the shop on rent to the petitioner.

There is no other evidence oral or documentary to prove that the rate of rent was Rs. 300/ per month.

Accordingly writ petition is allowed. Judgment and decree passed by both the Courts below are set aside. Matter is remanded to the trial Court to decide afresh the rate of rent after providing opportunity to both the parties to adduce evidence. Finding of the ownership/landlordship of landlord/respondent have been confirmed in the earlier part of this judgment hence said issue must not be reopened by the trial Court.