Sanjay Misra, J. - (1.) HEARD Sri K.N. Kesharwani, learned Counsel for the petitioner and Sri Amit Dayal, learned Counsel appearing on behalf of the respondents. The petitioner who alleged to be the owner and landlord of the shop in question had filed a Suit No. 13 of 1980 before the Judge Small Causes Court, Etawah for eviction of the petitioner on the ground of arrears of rent. The Trial Court framed the issues and decreed the suit of the petitioner landlord. The Trial Court found that the relationship of landlord and tenant existed between the parties and on other issue it has recorded its finding in favour of the petitioner. Feeling aggrieved, the respondent tenant preferred a revision under section 25 Provincial Small Causes Court Act. The Revisional Court has set aside the judgment of the Trial Court while holding that relationship of landlord and tenant did not exist in as much as the petitioner was not owner of the premises in question. In recording its finding the Revisional Court has relied upon paper No. 34 -Ga which is alleged to be a deed of partition amongst the family members of the petitioner landlord and upon perusal of the aforesaid document the Revisional Court had found that the portion marked in red colour was allotted in the share of Smt. Devi mother in law of the petitioner and therefore it had held that until and unless the mother in law transfers the property to the petitioner the petitioner could not become owner and landlord of the premises in question during the life time of her mother in law.
(2.) LEARNED Counsel for the petitioner has submitted that the husband of the petitioner who is son of Smt. Devi had deposed before the Court below and has stated that the portion shown in red colour of the partition deed has come into his and his brother's share. Consequently the case set up by the husband is that the shop in question is situate in the portion of which Smt. Devi was the owner by virtue of partition and husband of the petitioner namely Vimal Kumar and his brother would become owner thereof. Learned Counsel for the petitioner has placed reliance upon the written statement filed on behalf of the respondent tenant and has contended that in para 14 of the written statement the relationship of landlord and tenant was duly admitted by the respondent. Learned Counsel for the petitioner has also submitted that by virtue of the aforesaid admission the finding of the Trial Court was in accordance with law and the Revisional Court has proceeded to record a contrary finding which is not based on the pleadings. Learned Counsel for the petitioner has placed reliance upon the decision of this Court in the case of Vimal Kishore Paliwal v. IV Additional District and Sessions Judge,, 2005 (2) ARC 672 and in the case of Laxmi Kishore and another v. Har Prasad Shukla : 1981 ARC 545 and in the case of Prayag Narain Gaur v. Muneshwar Das and another, 1979 ARC 341 and has contended that while exercising jurisdiction under section 25 of the Act the Revisional Court can not record its own finding by reappraising the evidence. Relying upon the aforesaid decisions he has contended that the Revisional Court has committed illegality while reappraising the evidence and recording its own finding with respect to relationship of landlord and tenant between the parties and further that the petitioner is not the owner of the shop in question.
(3.) ON the other hand, learned Counsel for the respondents has placed reliance upon a decision of this Court in the case of Anwar Uddin v. 1st Additional District Judge and others : 1999 (35) ALR 305, in the case of Rauf v. III Addl. District Judge and another : 2001 (44) ALR 161 and also in the case of Syed Shahid Husain and another v. Mushahid Ali : 2006 (63) ALR 899. His contention is that if the Revisional Court found that there is no evidence to sustain the finding on a particular issue of fact it can ignore the said finding recorded by the Trial Court. He contends that in such a case the Revisional Court would be justified in deciding the question of fact itself because the evidence is of one way. Since no re -assessment is needed the Revisional Court would be competent to decide the issue itself.;