Zafar vs Mohammad Salim

Rakesh Tiwari, J.—Heard counsel for the parties and perused the record.

This writ petition has been filed by the Petitioner challenging the validity and correctness of the order dated 2.8.2010 passed by the Revisional Court in SCC Revision No. 69 of 2008,Jafar v. Mohd. Salim whereby the revision was dismissed by affirming the judgment and order dated 17.7.2008 passed by the Judge Small Causes Court, Aligarh in JSCC Suit No. 13 of 2003, Mohd. Salim v. Jafar. By order dated 17.7.2008 the suit of the Respondent landlord was partly allowed by directing the Petitioner tenant to pay rent of the property in dispute @ Rs. 50/-per month to the landlord w.e.f. 29.5.2003 till the date of decision of the suit within a period of 30 days. In so far as the prayer for eviction of the Petitioner from the property in dispute was concerned, this prayer was rejected by the court below.

Brief facts of the case are that the Plaintiff Respondent filed SCC Suit No. 13 of 2003, Mohd. Salim v. Zafar for eviction of the Petitioner tenant from the shop in dispute. It was alleged in the plaint that the Respondent is owner and landlord of the shop in dispute, bearing municipal No. 173/1, Khair Nagar Bazar,Meerut vide sale-deed dated 8.6.1998 executed by Sitara Begum; that the Petitioner was tenant of the shop in dispute @ Rs. 100/-per month and was in arrears of rent since 8.6.1998; that the Respondent landlord demanded rent vide notice dated 14.5.2002 and terminated the tenancy of the Petitioner and when he was not willing to pay the rent, he filed the aforesaid suit.

The Petitioner contested the suit denying the plaint allegations by filing his written statement. It was pleaded in the written statement that the sale-deed dated 8.6.1998 did not relate to the shop in dispute as such the Petitioner was not the owner and landlord of the shop in dispute; that he was the tenant of Smt. Pushpa Rani @ Rs. 50/-per month of the shop in dispute; that the Respondent had neither purchased the same nor did the relationship of landlord and tenant exist between the Petitioner and the Respondent; that the Respondent had purchased property No. 173 and not 173/1, which was separate; that the alleged notice dated 14.5.2002 u/s 106 of Transfer of Property Act was wrong and it did not determine the tenancy of the Petitioner.

The Respondent thereafter moved an amendment application and pleaded that the Petitioner had denied his title as landlord and had become liable for eviction from the shop in dispute u/s 20(2)(f) of U.P. Act No. 13 of 1972.

The Petitioner also filed his additional written statement stating that he had not denied the title of the true owner; that the Respondent had purchased a part of the building through sale-deed dated 8.6.1998 and not the entire building, hence the shop in dispute was not covered under the sale-deed of the Respondent. After filing of the suit, the previous owner, Smt. Sitara Begum executed an additional sale-deed in respect of the shop in dispute in favour of the Respondent, which according to the Respondent was a correction deed relating to the original sale-deed dated 8.6.1998.

On the basis of pleadings of the parties, the trial Court framed following issues:

Whether the Defendant is tenant @ Rs. 100/-per month of the property in dispute? or on any other rate.

Whether the relationship of landlord-tenant exists between the Plaintiff and Defendant ?

Whether notice u/s 106 of Transfer of Property Act is wrong and it does not determine the tenancy of the Defendant ?

Whether the Defendant has denied the title of the landlord and is thus liable for eviction u/s 20(2)(f) of U.P. Act No. 13 of 1972 ?

Whether the Defendant is liable for eviction on the ground of default in payment of rent ?

Relief ?

Issue No. 1 was decided in favour of the Petitioner holding that the Respondent landlord has failed to prove that the Petitioner was tenant of the shop in dispute @ Rs. 100/-per month. Issue No. 2 was decided by the trial Court holding that the Respondent was not the owner and landlord of the shop in dispute on the date of institution of the suit. In respect of issue No. 3, the trial Court held that as the Respondent was not the owner and landlord of the shop in dispute at the time of service of notice dated 14.5.2002, hence the tenancy of the Petitioner could not be determined by the said notice. Issue No. 4 was decided by holding that since the Petitioner had not denied the title of the landlord, hence he is not liable for eviction from the shop in dispute. In so far as issue No. 5 is concerned, the trial Court held that since the Respondent was not the owner and landlord of the shop in dispute on the date of issuance of notice dated 14.5.2002, the Petitioner is not liable for eviction on the ground of default. Issue No. 6 was decided holding that the Respondent is not entitled to seek relief of eviction of Petitioner from the shop in dispute.

The trial Court partly allowed the suit of the Respondent vide order dated 17.7.2008 as stated above.

Aggrieved by the aforesaid order dated 17.7.2008 of the trial Court, the Petitioner filed SCC Revision No. 69 of 2008 before the Revisional Court which too was dismissed vide order dated 2.8.2010 by it as not maintainable.

In the mean time, the Respondent again filed SCC Suit No. 125 of 2008, Mohd. Salim v. Zafar for eviction of the Petitioner from the shop in dispute on the ground of default in payment of rent in the court below which is still pending.

It appears from the record that the Respondent landlord has again filed SCC Suit No. 125 of 2008 in the Court of Judge Small Causes, Meerut for eviction of the Petitioner tenant from the shop in dispute on the ground of default in payment of rent from the date of subsequent purchase of the property which is still pending as the earlier suit of the landlord was partly allowed by rejecting the prayer of the landlord for eviction of the Petitioner from the shop in dispute on the ground that as he was not the owner and landlord of the shop in dispute at the time of service of notice dated 14.5.2002, the Petitioner is not liable for eviction from the shop in dispute on the ground of default. The Petitioner may move an appropriate application in SCC Suit No. 125 of 2008 aforesaid raising all the grounds which he has raised in this writ petition. The same shall be considered in accordance with law by the court below. The writ petition is premature and it is accordingly, dismissed. No order as to costs.