Allahabad High Court
The Balwant Education Society, Agra And ... vs M/S Agra Real Estate Pvt. Ltd. And ... on 16 December, 2024
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Neutral Citation No. - 2024:AHC:200137 Court No. - 4 Case :- MATTERS UNDER ARTICLE 227 No. - 5851 of 2022 Petitioner :- The Balwant Education Society, Agra And Another Respondent :- M/S Agra Real Estate Pvt. Ltd. And Another Counsel for Petitioner :- Rahul Sahai,Raj Kumar Mishra Counsel for Respondent :- Shreesh Srivastava,Shreyas Srivastava Hon'ble Ajit Kumar,J.
1. This petition questions the judgment and order dated 02.05.2022 passed by the Additional District and Sessions Judge, Family Court, Agra in SCC Revision No.47 of 2019 decreeing the suit for eviction and for recovery of arrears of rent by reversing the judgment and decree of the trial court passed by Judge Small Causes in SCC Case No.40 of 2012 dated 01.08.2019, dismissing the suit.
2. The only point urged before the Court is that exercising powers of revision under Section 25 of the Provincial Small Causes Courts Act, 1887, the court below was not justified in appreciating the additional evidence and decreeing the suit on that basis instead of remanding it to the trial court for decision afresh.
3. It is argued that powers of court in revision are not as wide as powers in appeal and hence the judgment and decree passed by the court sitting in revision deserves to be set aside. In support of his submission, learned counsel appearing for the petitioners has relied upon a judgment of a concurrent Bench of this Court in the case of Kailash Chandra Jain v. Jagdish Chandra Nagpal, in which the Court had further relied upon a Division Bench judgment in the case of Babu Ram v. Additional District Judge, Dehradun and another 1983 ARC 15. Learned counsel has placed paragraph no.12, 13 and 14 of the judgment which run as under:
"(12) THE position of law which emerges out from the aforesaid decisions is that since Order XLI, rule 27, C. P. C. has been expressly excluded from its applicability to the proceedings before the small Cause Courts, the same, neither in its terms nor in principle, can be pressed into service by the Court in its revisional jurisdiction under Section 25 of the Small Cause Courts Act, 1887 for taking additional evidence but such a Court certainly possesses power to admit additional evidence in exercise of its inherent powers for doing justice between the parties. That power, however, has to be exercised cautiously only in appropriate cases subject to the limitation that the additional evidence should not be admitted for reappraising the evidence or for setting aside a finding of fact. On the same analogy, evidence alleged to be subsequently discovered by a party should normally be not admitted in revision to demonstrate that the finding given by the trial court was erroneous. Similarly, additional evidence also cannot be permitted to be brought on record in a revision under Section 25 of the Small Cause Courts Act to fill in the lacuna.
(13) A perusal of the order, dated 30. 8. 96, whereby the application of respondent No. 1 for bringing on record some rent receipts was allowed, would indicate that the ground for taking the said additional evidence on record was that the rent receipts could not be filed in the trial court as they were not traceable at that time and thus according to the contention of the respondent No. 1, the said additional evidence was discovered subsequently on 19. 4. 96. The revisional court took the view that it was necessary to bring the said rent receipts on record so that the matter in controversy might be adjudicated finally between the parties. The revisional court, however, has not recorded any good reasons as to why the admission of the-rent-receipts-at-revisional-stage-was- necessary for deciding the matter finally between the parties. It also failed to note that it was merely an attempt of respondent No. I to fill in the lacuna. It may be stated here that the trial court had recorded a finding of fact that the respondent No. 1 committed default in payment of rent. This finding of fact could not be set aside on the basis of additional evidence-filed before the revisional court, in view of the aforesaid case of Division Bench wherein it has been specifically held:
"additional evidence subsequently discovered by a party cannot be admitted in a revision to demonstrate that the finding given by the Judge. Small Causes Court was erroneous."
(14) IT was not a subsequent event or a new fact which the revisional court could have permitted to be brought on record. Therefore, this Court is of the view that the order of the revisional court, dated 30.8.96 allowing the application of respondent No. I for admitting alleged rent receipts on record and thereafter to remand the case to the trial court giving another opportunity to the defendant-respondent No. I to prove the said receipts suffers from a manifest error of law."
4. Learned counsel relied upon another co-ordinate Bench judgment of this Court in Pitamber Singh v. Additional District Judge [2018 (1) ARC 738] and has placed before the Court paragraph no.17 of the judgment, which runs as under:
"17. A perusal of the impugned judgrnent of the revisional Court makes it clear that the learned revisional Court has re-appreciated and re-assessed the evidence on record and has recorded a contrary finding that notice was sufficiently served upon the petitioner while there was finding of fact recorded by the learned Trial Court that the notice was not validly served. This procedure adopted by the revisional Court is erroneous in view of the law laid down by the Hon'ble Apex Court. It is a settled law that while exercising the power of revision under Section 25 of the Act. the revisional Court cannot disturb the findings of fact recorded by the learned Trial Court, unless it is found that the findings are perverse or based on no evidence. If the revisional Court comes to the conclusion that the findings are erroneous or perverse, the only option open for the revisional Court is to remand the matter back to the Trial Court after setting aside the judgment directing the Trial Court to record fresh finding on the basis of evidence, but the revisional Court is not empowered to re-appreciate the evidence on record and record a finding contrary to the finding recorded by the Trial Court. The impugned judgment clearly reveals that this has been done by the revisional Court. The service of notice and the applicability of the Act, both are crucial points and questions which will determine the fate of the case. Since, the revisional Court has acted illegally and has exercised its jurisdiction unlawfully by re-appreciating the fact, therefore, this Court is of the opinion that the matter be remitted back to the revisional Court for deciding the revision afresh. Since, the matter is being remitted back to the revisional Court, therefore, this Court refrains from recording any finding as to the requirement of notice and the applicability of the Act. It has to be seen and examined by the Court."
5. Yet another argument has been advanced by learned counsel appearing for the petitioners that there was a serious dispute of title as to the demised premises for which the suit was barred under Section 23 of the Provincial Small Causes Courts Act, 1887 and the findings returned by the court sitting in revision on the said issue are quite perverse in nature and, therefore, deserve to be interfered with. It is contended that there was original suit also filed by the petitioners which though was dismissed but against dismissal of suit a first appeal was pending before the court and, therefore, the court was not justified in placing reliance upon the findings returned in the judgment of the trial court in O.S. No.567 of 2004.
6. Meeting the arguments, learned counsel appearing for the respondents contended that insofar as the original receipts brought on record by way of an application filed under Order 41 Rule 27 is concerned and due appreciation thereof by the court sitting in revision, petitioners in their objection filed against application under Order 41 Rule 27 did not dispute the original receipts at all and only reiterated their claims on the basis of the mutation orders passed by same revenue authority. In such circumstances, it is pleaded, if the receipts are not disputed that were filed in original and the trial judge had declined to accept the claim only for the photocopies of the receipts being presented, these original receipts were to be taken as admitted ones and the court, therefore, fell in no error of law or jurisdiction in accepting the same by way of additional evidence. He submits that appreciation thereof was equally justified in the given facts and circumstances of the case.
7. It is also argued that in the absence of remedy of appeal powers of revision under Section 25 are to be taken as wider enough to take on record additional evidence and its appreciation. In support of his submission, learned counsel for the petitioner has relied upon certain authorities.
8. Meeting the argument as to the dispute of title qua the property in question, it is argued that the plaintiffs' suit to declare the sale-deed as null and void being O.S. No.567 of 2004 came to be dismissed on merits and the sale-deed executed on 15.07.2003 and the deed of assignment dated 27.07.2010 were held to be valid one. It is further contended that though petitioners sought to raise objection as to the title of the respondents qua the property but the plaintiffs in SCC case were non-suited only on the ground that the receipts of rent issued in favour of the respondents under the signature of the principal where only the photocopies of original, which could not have been relied upon, more especially, when the defendants had disputed the same but interestingly, according to him, the same was not disputed while he filed originals.
9. Learned counsel has further relied upon two authorities of the Supreme Court in the case of Kanaklata Das & Ors. v. Naba Kumar Das & Ors. 2018 0 Supreme (SC) 75 and 2018 (1) ARC 1491 to contend that in an eviction suit landlord and tenant are only necessary parties and landlord has only to prove that there existed relationship of landlord and tenant between the parties which is sufficient for the landlord to determine tenancy and seek eviction.
10. Having having learned counsel for respective parties and having perused the record of the case, two points arise for consideration of this Court:-
(i) Whether the dispute as to the title raised was such that plaint deserved to be returned under Section 23 of the Provincial Small Causes Courts Act, 1887 and the court sitting in revision was not justified in reversing the findings of trial court on that point.
(ii) Whether the court exercising its revisional power under Section 25 of Provincial Small Causes Courts Act should not have decreed the suit by appreciating additional evidence and instead should have remitted it to trial court for trial afresh.
11. In order to find answer to first point, I consider it appropriate to first look into the findings returned by the trial court on the point of tenant landlord relationship.
12. The first point as was framed by the trial judge for the stand of defendant-petitioner in paper no.92C in which he had completely denied their to be any relationship of tenant landlord between the plaintiff and the defendant and claimed that the defendant nos.1 and 2 had settled the property in defendant no.3 vide notification dated 28.07.2015 which was admitted to the ancestors of the plaintiffs. He also denied that Shyam Lal son of Khushhal Singh Rajput was ever owner of the property in question, nor Baldev Das or Raghunath Das was the owner of the property. He denied that Blunt Sahab was a tenant of the Bungalow and the servant quarter @ Rs.12 per year, nor Balwant Rajput High School was tenant of the Bungalow @ Rs.12 per year. He also denied that any rent was ever paid to Sohan Lal and his sons Mohan Lal Maheshwari, Om Prakash Maheshwari, Murari Lal Maheshwari and Banwari Lal Maheshwari.
13. In rebuttal to this, plaintiffs demonstrated that there was a relationship of landlord and tenant between the parties. Answering respondents-plaintiffs filed two receipts i.e. paper no.17C and 18C, issued under the signature of the Principal of Balwant Singh Rajput College dated 15.02.1962 and 28.03.1974 respectively along with notarized affidavit. The defendant since had denied these receipts and the receipts were in photocopies, the court refused to believe the same, more especially when those were not proved by any other evidence on record. The trial Judge further held that defendants were claiming title on the basis of the sale-deed bearing No.66 to 66/4 dated 27.02.2010. The court then proceeded to held that the suit bearing O.S. No.567 of 2004 of defendant-petitioner had failed as it got dismissed on 12.12.2011. The said judgment would be binding too but in the face of fact that a statutory appeal was preferred, no finding could be returned as to the title. Thus, trial Judge reached to the conclusion that there existed no relationship of landlord tenant.
14. From the above discussion, two things emerge out very clearly:
(i) the affidavit in evidence filed by the defendant-respondent denying the relationship of landlord tenant between the parties was sought to be rebutted by leading evidence of rent receipts issued under the signature of the Principal of the college but were not believed only on the ground that those were in photocopies; and
(ii) there was a judgment against defendant-respondents as to their claim of title on the basis of the sale-deed in O.S. No.567 of 2004 and the said judgment and decree though was binding but for statutory appeal preferred under Section 96 of CPC, no final view could have been expressed.
15. Now, I proceed to examine the findings returned by the court of revision.
16. The original receipts, photocopies of which were filed before the trial court were permitted to be led in evidence by allowing an application filed under Order 41 Rule 27 CPC. Thus, order allowing an application undisputedly became final between the parties but what is very interesting to notice is that in his objection, application filed under Order 41 Rule 27 CPC, original receipts were not denied at all.
17. In reply thereto, the only objection was taken that no sufficient reason was disclosed for not filing these documents which were sought to be filed and averments vide paragraph nos.4 and 5. Paragraph nos.4 and 5 of the affidavit filed in support of application filed under Order 41 Rule 27 are reproduced as under:
"...4. That the during pendency of this revision the predecessor in title of the revisionist after searching its old record, has provided to the revisionist various old documents comprising or rent receipts issued by Sohan Lal Omr Prakash Maheshwari as well as the letters issued by the opposite parties regarding payment of rent of the property in suit, original cheque, etc. The above documents which are original documents, were not available with the plaintiff/revisionist despite all its efforts when the matter was pending before the trial court. These documents which are being filed herewith with a separate list, will help the court in deciding this revision and rights of the parties.
5. That while going through the files of the revisionist, Shri Subhash Maheshwari the director of the revisionist found certified copies of the Khasra, Khatoni & Khewat in respect of the property in suit existing in Khasra No.496 and also certified copies of the mutation orders dated 30.8.2018 mutating name of the revisionist as owner in respect of the property in suit."
18. The objection was taken vide paragraph no.3, 4 and 5 of the affidavit by the defendants thus:
"...3. That the provisions of Order 41 Rule 27 C.P.C. do not apply in the present revision in as much as the present revision has been filed U/s 25 of the Provincial Small Causes Court Act. Moreover the revisionist has failed to disclose the sufficient reason for not filing the documents, sought to be filed, in the lower court while all the documents were in possession and knowledge of the revisionist.
4. That the revisionist in the garb of the application under reply and documents sought to be filed is trying to fill up the lacuna, which cannot be permitted in law.
5. That it is also submitted that the documents sought to be filed are neither relevant nor helpful to decide the present revision in as much as none of the document is related to the relationship of the landlord and tenant between the revisionist and opp.parties."
19. The court further taking the additional evidence on record proceeded to appreciate and held that the SCC suit being a summary proceeding, the original receipts were not required to be formally proved unless of course these receipts were disputed, and court recorded a finding to the effect that the receipts that were filed in original bore signatures of the Principal which was not disputed at all. Thus, since these receipts were not disputed and were marked as exhibits on record, hence held it deserved to be believed. The court relied upon same and held that the receipts sufficiently demonstrated that defendants were tenants and, therefore, their existed landlord tenant relationship between the plaintiffs and defendants. The court sitting in revision further held that there was sufficient finding returned in favour of plaintiffs to be title holder of the property in the suit. In view of the dismissal of the suit instituted by the defendants, their remained no reason or occasion to disbelieve the findings.
20. Having discussed the above findings returned by the court in revision and in view of the fact that original receipts filed in revision, photocopy of which were filed before the trial court, and were not disbelieved or discarded or denied by the defendants-respondents in revision, they amounted to an admission qua such evidence.
21. The law is well settled that admission is the best piece of evidence. I also find that the court was justified in reversing the findings on the issue of returning plaint under Section 23 of the Provincial Small Causes Courts and more for the reasons that the claim of title set up by the defendants-petitioners against the plaintiffs-defendants' suit was rejected by the trial Judge in a regular civil suit. It is well settled principal of law that mere filing of appeal does not amount to stay of the judgment and unless and until, the judgment and decree of the trial court is stayed, the same is to be relied upon for all legal purpose including the binding effect of the findings returned therein.
22. Further, I find that the said First Appeal No.55 of 2012 has been dismissed on merits by this Court vide detailed judgment and order dated 11.09.2024. So now, the judgment and order passed by the trial Judge in O.S. No.567 of 2004 stood affirmed and the title issued sought to be raised by the defendants-petitioners, has been given decent quitus. Vide paragraph nos.18, 19, 20, 21, 22, 23, 24, 25 and 26, the first Appellate Court has held thus:
"18. The plaintiffs have failed to prove that Blunt Sahib was the owner of disputed bungalow whereas it was the case of the defendants before the trial court that the ancestors of defendant nos.1 to 5 had let out the disputed bungalow to english-man Blunt Sahib on rent. The trial court has recorded the categorical finding of fact after considering the documentary evidence adduced by the parties that the disputed bungalow was purchased by ancestors of defendant nos.1 to 5 through registered sale deed dated 26.2.1868 and the defendant nos.1 to 5 had inherited the said property from their ancestors. The defendants no.1 to 5 having full right of ownership, have executed the sale deed in favour of defendant nos.6 and 7 through two registered sale deeds on 5.7.2003. The plaintiffs-appellants have failed to prove their right as owners of disputed property.
19. The second submission of plaintiffs-appellants is that the name of plaintiffs were recorded in revenue record as well as Nagar Nigam which proves their ownership on suit property and defendant nos.1 to 5 have no right to sell out the said property to defendant nos.6 and 7. On this point the law has been settled by the Hon?ble Apex Court in series of cases that mutation of land in revenue record does not create or extinguish title over such land or presumptive value of title. It is only for the purposes of payment of rent. The relevant para 8 of the judgment passed by the Hon?ble Apex Court in the case of Smt. Bhimabai Mahadeo Kambekar (D) through LR Vs. Arthur Import and Export Company and others reported in 2019 (3) SCC 191 is quoted herein below:-
?8. This Court has consistently held that mutation of a land in the revenue records does not create or extinguish the title over such land nor it has any presumptive value on the title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. (See Sawarni(Smt.) vs. Inder Kaur, (1996) 6 SCC 223, Balwant Singh & Anr. Vs. Daulat Singh(dead) by L.Rs. & Ors., (1997) 7 SCC 137 and Narasamma & Ors. vs. State of Karnataka & Ors., (2009) 5 SCC 591).?
20. The same view was taken by the Hon?ble Apex Court in the case of Jitendra Singh Vs. The State of Madhya Pradesh and others reported in 2022 (1) All WC 231. The relevant para 5 of the said judgment is reproduced herein below:-
?5. We have heard Shri Nishesh Sharma, learned Advocate appearing for the petitioner.
It is not in dispute that the dispute is with respect to mutation entry in the revenue records. The petitioner herein submitted an application to mutate his name on the basis of the alleged will dated 20.05.1998 executed by Smt. Ananti Bai. Even, according to the petitioner also, Smt. Ananti Bai died on 27.08.2011. From the record, it emerges that the application before the Nayab Tehsildar was made on 9.8.2011, i.e., before the death of Smt. Ananti Bai. It cannot be disputed that the right on the basis of the will can be claimed only after the death of the executant of the will. Even the will itself has been disputed. Be that as it may, as per the settled proposition of law, mutation entry does not confer any right, title or interest in favour of the person and the mutation entry in the revenue record is only for the fiscal purpose. As per the settled proposition of law, if there is any dispute with respect to the title and more particularly when the mutation entry is sought to be made on the basis of the will, the party who is claiming title/right on the basis of the will has to approach the appropriate civil court/court and get his rights crystalised and only thereafter on the basis of the decision before the civil court necessary mutation entry can be made.?
21. The mutation of names of plaintiffs in Nagar Nigam is merely for the purposes to pay rent and confers no right or title and it is only for the civil court to decide the title.
22. The third submission of plaintiffs-appellants is that the suit filed by defendants under Section 21(8) has been filed by the defendants no.1 to 5 for enhancement of rent which was dismissed by Additional District Magistrate/Rent Control Officer, Agra vide order dated 6.11.1997 on the ground that the defendant nos.1 to 5 have failed to prove their ownership. Any finding recorded by Rent Control Officer cannot decide the title between the parties. The proceeding before the Rent Control Officer is with regard to the rent and Rent Control Officer has no authority under the law to decide the dispute regarding title between the parties.
23. The last submission of learned counsel for the plaintiffs-appellants is that the plaintiffs-appellants are in possession since 27.2.1910 and therefore, they acquired title by way of adverse possession over the suit property. From bare perusal of plaint it is apparently clear that plaintiffs-appellants never claimed title of disputed property on the ground of adverse possession. The claim of plaintiffs-appellants was on the basis of sale deed dated 27.2.1990 executed by daughters of Blunt Sahib whereas they never claimed title on the basis of adverse possession. Since there was no claim of the plaintiffs on the ground of adverse possession in their plaint and they never pleaded adverse possession and even no issues were framed in this regard, it is not open to the plaintiffs-appellants to raise this question at first time in the appeal.
24. The trial court after considering the evidence adduced by the parties has recorded the finding while deciding the issue nos.6 and 7 that plaintiffs had failed to prove their ownership by producing cogent evidence and status of plaintiffs-appellants are as lessee on the basis of deed of assignment, whereas the defendants-respondents no.1 to 5 have inherited the said property from their ancestors, who were recorded as owner in revenue record. The defendants no.1 to 5 are owner of disputed property through their ancestors and they have every right to execute the sale deeds. The sale deeds dated 5.7.2003 executed by defendant nos.1 to 5 in favour of defendants no.6 and 7 are valid and the issue nos.6 & 7 have been decided in negative against the plaintiffs-appellants.
25. The finding recorded by the trial court regarding ownership and title of disputed property are based on evidence and materials which are available on record and there is no illegality in any manner. No ground for interference is made out. The first appeal filed by plaintiffs-appellants is liable to be dismissed.
26. The first appeal filed by plaintiffs-appellants is dismissed accordingly and the judgment and decree dated 12.12.2011 passed by Additional District Judge, Court No.3, Agra in Original Suit No.567 of 2004 is affirmed."
23. In view of the above, now there remains no dispute as to the title of the property in question to be standing in favour of the respondents and that there existed landlord and tenant relationship between the plaintiffs-respondents and the defendants-petitioners. Thus, the point (i) stands decided in favour of the landlord-respondents.
24. Coming to the exercise of revisional power in decreeing the suit by entertaining original receipts in additional evidence, the second point, it is true that a co-ordinate Bench has held that matter ought to have been remitted to the court of first instance for decision afresh but I find that the court while remitting the matter has returned a finding to the effect vide paragraph no.13 of the judgment in the case of Kailash Chandra Jain (Supra) that "the revisional court, however, has not recorded any good reasons as to why the admission of the rent receipts at revisional stage was necessary for deciding the matter finally between the parties. It also failed to note that it was merely an attempt of respondent No. 1 to fill in the lacuna." But in the instant case, I find that receipts filed in original were not at all discarded or denied. Further, in the case cited and noted above, there was a dispute as to denial of payment of rent and additional receipts were permitted to be allowed in evidence to fill in the lacuna in establishing default in payment of rent. There is a difference between an additional evidence led afresh or an additional evidence led in original copies, photocopies of which were already led in evidence before the trial court. In the later case, there will be no case of filling up a lacuna. The receipts were disbelieved because originals were not there and, therefore, I do not find any error of law committed by the court sitting in revision in entertaining the original receipts and appreciating the same, more especially when those receipts were not denied. The judgment, therefore, in the case of Kailash Chandra Jain is distinguishable on facts. Insofar as the judgment in the case of Pitambar Singh is concerned, the court recorded that the findings of the trial court could be disturbed by the court sitting in revision, if it is found that the findings are perverse and based on no evidence.
25. Looking to the findings of the trial court in the present case, I find that the court completely discarded photocopies and, therefore, it was a case where there was evidence not relied upon and the court in revision entertained the original receipts of that evidence and appreciated the same. Thus, it is a case where the trial court held evidence to be inadmissible for photocopies and the court sitting in revision found the original in evidence and that too not being denied by the respondents and, therefore, I do not find there to be any manifest error in the order of the court sitting in revision in exercising its power under Section 25 of the Provincial Small Causes Courts Act, now it is a case of wrongful exercise of jurisdiction. The said point (ii) is also answered in favour of respondents-landlord.
26. In view of the above, therefore, I do not find any merit in the petition, petition fails and is, accordingly, dismissed.
27. Interim order, if any, stands discharged.
28. Cost made easy.
Order Date :- 16.12.2024 S.A.