AMAR CHAND Vs. MAGAN DEVI

JUDGEMENT

(1.) The present writ petition was earlier filed as Second Appeal No. 726 of 1993, under Section 100 C.P.C. before this Court against the judgment and decree dated 22nd April, 1992 passed by Additional Civil Judge, Mathura in Civil Appeal No. 41 of 1991 which arose out of Original Suit No. 370 of 1982. Subsequently, on 12th October, 1993, the appellant requested the Court to convert the aforesaid second appeal into a writ petition. The prayer was accepted by the order dated 12th October, 1993. It was then registered as Writ Petition No. 8169 of 2000. Original Suit No. 370 of 1982 was instituted by Shri Sridhar Prasad, (who died during pendency of the suit and was substituted by heirs who are respondents herein) against the defendant-petitioner for recovery of Rs. 915 towards arrears of rent and ejectment from house in dispute on the allegations that the defendant was tenant on monthly rent of Rs. 25. He is in arrears of rent since 1st July, 1977 to March, 1982. The tenancy was determined by serving a notice dated 8th April, 1982 under Section 106 Transfer of Property Act served on 14th August, 1982. It was further pleaded that inspite of service and receipt of notice, the defendant-tenant has refused to pay the rent. He has denied relationship of landlord and tenant between the parties. The suit was contested by the defendant by denying the relationship of landlord and tenant between the parties. It was pleaded that he never took the house in question on rent nor he ever paid any rent. It was further pleaded that neither the defendant nor his ancestor took the property in dispute on rent from the plaintiff or his ancestor and as such there is no question of default in payment of rent. In the alternative, it was pleaded that if the petitioner is held as tenant then, his tenancy is on monthly rent of Rs. 25 and he is entitled to invoke the benefit of Section 20(4) of the U.P. Act No. 13 of 1972. The validity of the notice determining the tenancy was disputed. Pleas that other heirs of Nanag Ram have not been impleaded and as such the suit is bad for non-joinder of necessary parties, it is also barred by time, the suit should have been filed on the Judge Small Causes Court side and not on the regular side of the Court, were raised.

(2.) On the pleadings of the parties, as many as 13 issues were struck. Issue Nos. 1 and 2 relating to the ownership of the property in dispute as also as to whether the relationship of landlord and tenant existed between the parties were decided together against the plaintiff. The trial Court by the judgment and decree found that the defendant has perfected his title by adverse possession and the plaintiff and his ancestor have lost their right, title or interest in the disputed property. Thus, the aforesaid issues were decided in favour of the defendant. Under Issue No. 3, it was held that the plaintiff has no right to maintain the suit. Under Issue No. 4, in view of the findings under Issue Nos. 1 and 2, it was held that question of invoking the benefit of Section 20(4) of the U.P. Act No. 13 of 1972 by the defendant does not arise. The notice determining the tenancy under Issue No. 5 was held to be valid. Similarly, it was found under Issue No. 6 that the suit is not bad for non-joinder of the necessary parties. Issue No. 7 relating to the jurisdiction of the trial Court to entertain the suit was not pressed by the defendant and it was decided accordingly. Under Issue No. 9, it was held that the suit is barred by limitation. Issue Nos. 10 and 12 were decided in favour of the plaintiff. Issue No. 11 was decided in favour of the defendant. The suit was dismissed by the judgment and decree dated 28th February, 1991 by the trial Court.

(3.) The matter was carried in appeal filed under Section 96 of C.P.C. before the Court below. First Appellate Court re-examined the matter and reversed the judgment and decree of the trial Court by the impugned judgment. It decreed the suit for recovery of arrears of rent and ejectment by holding that the plaintiff is the owner and landlord of the property in dispute and the defendant has not perfected title by adverse possession. The other findings of the trial Court on these relevant issues have been reversed. It has been found that there was rent note between the parties. The said rent note is paper No. 23-Ka and is dated 10th June, 1928. Under the said rent note, Nanag Ram S/o Girvar (father of the petitioner) took the property in dispute on rent at the rate of Rs. 10 per month for a period of one year. In para-33 of the judgment, the Appellate Court reached to the conclusion that there is relationship of landlord and tenant between the parties. The notice determining the tenancy has been held to be valid in para-34. It was held in para-35 that the rent was enhanced subsequently from time to time. The defendant was held to be defaulter in payment of rent since 1st July, 1977. A decree, after setting aside the decree of the trial Court, for recovery of Rs. 915 towards rent and damages etc. has been passed by the impugned order.