Triloki Nath Agarwal and Others vs Yogendra Nath Dixit and Others

Sibghat Ullah Khan, J.—Heard learned Counsel for the applicant in the review petition/ respondent in the writ petition.

S.C.C. Suit No. 8 of 1981 was instituted by the petitioners landlords against original respondents No. 1 to 8 some of whom were alleged by the plaintiffs to be their tenants and rest sub-tenants of the tenants. J.S.C.C. in 1991 held that complicated question of title was involved and directed the plaint to be returned to the plaintiffs for filing before civil court. (The alleged tenants had claimed title in themselves.) Revision filed against the said order was dismissed. Through my judgment dated 18.09.2008, I allowed the writ petition, set aside both the orders passed by the courts below and directed the trial court/ J.S.C.C. to decide the suit.

The main argument raised by the learned Counsel for the applicant is that the earlier judgment of this Court passed in Second Appeal No. 3246 of 1975 was not relevant and admissible under any of the Sections 40 - 44 of Evidence Act. (Even though in the review petition no such point has been taken.) In my judgment, I mentioned that in the earlier litigation which culminated in the second appeal, Diwakar Dixit father of contesting respondents in the writ petition had admitted that he was the tenant of the present petitioners (and before them, of their predecessor in interest Raghubir Prasad). After the death of Diwakar Dixit, one of his sons also made similar admission. The High Court in the judgment of the second appeal clearly recorded the findings that as the tenant Diwakar Dixit continued to pay rent to Raghubir Prasad, predecessor-in-interest of the petitioners, hence auction purchaser was not in possession and Raghubir Prasad was in possession. On the basis of this finding, it was held that as auction purchaser was not in possession since long, hence his suit was barred by time.

In the judgments challenged in the writ petition, both the courts below had held that High Court had allowed the second appeal on the ground of limitation and no finding regarding status of Diwakar Dixit as tenant had been recorded. In my judgment under review, I held that the High Court had clearly held that Diwakar Dixit was tenant. It was also the admission of Diwakar Dixit and after his death, one of his sons in the said case.

u/s 43 of Evidence Act, the earlier judgment of second appeal is relevant. The section is quoted below:

Judgments, etc., other than those mentioned in Sections 40 - 42, where relevant.- Judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provision of this Act.

''Facts in issue'' have been defined u/s 3 of the Evidence Act, Explanation of which is quoted below:

Explanation.- Whenever, under the provisions of the law for the time being in force relating to Civil Procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer to such issue, is a fact in issue.

One of the issues in the suit giving rise to the writ petition was as to whether contesting respondents/ defendants were tenants of petitioners/ plaintiffs or not. u/s 5 of Evidence Act evidence may be given in any suit of the existence of every fact in issue. The admission made by Diwakar Dixit and one of his sons as recorded in the judgment of High Court in the earlier litigation are relevant u/s 21 of Evidence Act.

Accordingly, the earlier judgment of the High Court in second appeal is quite relevant and admissible in evidence.

The main ground taken in the review petition and also argued by the learned Counsel for the applicant is that out of 25 petitioners, five had accepted the respondents No. 1 to 3 in the writ petition as landlords of the house in dispute through registered compromise which could not be filed till the decision of the writ petition. Firstly, question of compromise in a suit or petition cannot be considered unless it is brought on record before the decision of the suit or petition. Secondly, compromise of some of the landlords with the tenant during pendency of suit or petition does not affect the right of the other landlords. In such situation, total merger of tenancy rights which ownership u/s 111(d) does not take place vide T. Lakshmipathi and Others Vs. P. Nithyananda Reddy and Others, It has also been held by the Supreme Court in India Umbrella Manufacturing Co. and Others Vs. Bhagabandei Agarwalla (Dead) by Lrs. Smt. Savitri Agarwalla and Others, that eviction suit against tenant can be filed even by one co-owner and if suit is filed jointly by two co-owners, one of them cannot withdraw his consent midway to prejudice of the other co-owner.

It has also been informed by the learned Counsel for the applicant in review petition that two or three days before, the suit has been decreed by the J.S.C.C.

Accordingly, I do not find any error in my judgment dated 18.09.2008. Review petition is therefore dismissed.