Allahabad High Court
Udai Pal Singh vs Smt. Pushpa And Ors. on 19 August, 2004
Equivalent citations: 2005(1)AWC558, 2005 A I H C 545
Author: S.N. Srivastava
Bench: S.N. Srivastava
JUDGMENT S.N. Srivastava, J.
1. Here it is necessary to recount a brief history of the case. The journey of the case began with the institution of suit by the petitioner in the year 1972. It culminated in judgment and decree in the year 2000. The execution application was filed in the year, 2001 but it would appear from the record that the executing court proceeded on erroneous reasoning, thus protracting execution of decree despite lapse of 32 years.
2. The dispute in the instant petition relates to House No. 82 (132/17) situated in Teachers' Colony, Bulandshahr. The petitioner who is a retired Government servant from Nagaland, instituted a suit for the relief of possession of the property in dispute and award of Rs. 2, 400 as mesne profits for the period relating to past one year and pendente lite and future mesne profits at the rate of Rs. 200 per month. The suit was founded on the grounds that plaintiff was the real owner of the property and it was purchased for a consideration by the petitioner ; that defendant No. 1 who is the brother of the petitioner to whom he remitted money while in service for purchase, illegally purchased the said property in his name and also inducted defendants 2 and 3 Jai Swarup and Khacheru Singh illegally by letting out the same and hence they were also impleaded in the suit as defendants. Thereafter, defendant No. 1 entered appearance and filed written statement repudiating plaint allegations and claiming his own rights and ownership in the property. In paragraph 12 of the written statement, he has specifically denied the allegation of letting out but in the same breath has stated that Jai Swarup defendant No. 2 was living as guest and defendant No. 3 as licensee for the past some-time. The Suit bearing No. 189 of 1972 was initially dismissed by the trial court but the first appellate court allowed the appeal by means of judgment and decree dated 26.11.1992. The first appellate court passed the decree in the following terms :
"The appeal is allowed. Judgment and decree passed by the learned lower court are set aside. Plaintiffs suit for recovery of possession is decreed against the defendants. The defendants are directed to hand over peaceful possession of the property in question to the plaintiff within one month failing which the plaintiff shall be entitled to take possession over the property in question through Court."
3. It is obvious from the record that defendant Nos. 2 and 3 did not prefer any second appeal against the aforestated judgment and decree and only Chandra Pal Singh filed second appeal before this Court. The aforesaid second appeal, it would further appear, culminated in dismissal vide judgment and decree dated 7th November, 2000. A review application also came to be dismissed on 20.5.2002. It would appear that soon after dismissal of second appeal, the execution case came to be instituted in the Court of Civil Judge (S.D.), Bulandshahr, which was registered as Execution Case No. 12 of 2001. Objection was filed by Kacheru Singh defendant No. 3 on the ground that decree passed was not executable. The executing court in the ultimate analysis concluded that decree passed against Kacheru Singh for possession cannot be executed. A revision was preferred by the petitioner, which also was dismissed. It is these two orders, which are impugned, in the present petition.
4. Learned counsel for the petitioner began his submission canvassing that Kacheru Singh and Jai Swarup were parties to the suit and decree was passed on merits by the appellate court which received reinforcement from the High Court in second appeal. It was further canvassed that Kacheru Singh or his heirs did not assail the said decree any further in second appeal. The learned counsel also raised a pivotal point of considerable signification that there was no relationship of landlord and tenant between plaintiff and defendant No. 1 who is judgment debtor and now represented by his heirs in the present petition. The learned counsel further adverted to the averments made in the written statement stating that it has been clearly stated therein that neither Kacheru Singh nor Jai Swarup were tenants. He also canvassed that it was never pleaded that Kacheru Singh and Jai Swarup were residing there on payment of any rent and by this reckoning, they cannot be said to be a tenant and provisions of U. P. Act No. 13 of 1972, cannot be called in aid for application. The learned counsel also canvassed that defendant No. 1 was occupying the premises otherwise than in accordance with law, and he had set up defendant Nos. 2 and 3 as guest and licensee respectively and in this perspective, provisions of U. P. Act No. 13 of 1972, cannot be called in aid and the suit for possession was rightly decreed against them and also against the persons through whom they came to occupy the premises. The learned counsel further canvassed that the executing court wrongly held the decree as not executable against opposite party Nos. 7 and 8.
5. Reverting to the petition in hand. it is noticeable from the record that notices issued were served to the opposite parties but there is no appearance for any of the opposite parties.
6. I have scanned the submissions stated across the bar by the learned counsel for the petitioner and upon a consideration of the facts and arguments advanced across the bar, I am of the view that the petition can be decided on a short question whether there was relationship of landlord and tenant between the plaintiff and opposite parties. In connection with the above, 1 feel called to advert to the averments made in para 12 of the written statement which is quoted below :
"Yeh Ki Prativadi No. 2 Ek Mehman Ke Rup Me Ek Kamre Me July San 1972 Se Reh Rahe Hain Aur Prativadi No. 3 Bhi Abhi Kothi Mein Aarzi Taur Se Saal Bhar Se Reh Rahe Hain."
7. Before proceeding further, it would be apt to refer to definition of the word "tenant". In Section 3 of the Act, word "tenant" in relation to a building has been described to mean a person by whom its rent is payable. The word "landlord" in relation to a building, has been described to mean a person to whom its rent is or if the building were let, would be, payable and includes, except in Clause (g), the agent or attorney, or such person. Coming back to the facts of the present case, it is amply clear and borne out from the record that the defendant No. 1 was neither agent or attorney nor falls within the categories of spouse or male lineal descendants, or parents, grandparents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendent. Besides, no relationship of landlord and tenant existed between the plaintiff and defendants, which could warrant application of the provisions of U. P. Act No. 13 of 1972 and it is evident from the record that the suit was slugged out on a footing other than the footing of relationship of landlord and tenant. Furthermore, there is not an iota of evidence on record either pleaded or proved by the judgment debtors that rent was ever paid to decree holder or any of the persons as enumerated in Section 3 (j) of the Act. In my considered view, unless these two requirements are satisfied, there cannot be any presumption of relationship of landlord and tenant and in consequence, applicability of the provisions of U. P. Act No. 13 of 1972, cannot be called in aid. The view taken by the executing court is quite erroneous in view of uncontroverted facts on record that the defendant Nos. 2 and 3 were inducted as guest and licensee for the time being respectively by the defendant No. 1 who was subsequently held not to have any ownership of the property and that the decree was never challenged by defendant Nos. 2 and 3 in second appeal and thereby the decree had attained finality between the parties. The executing court clearly erred in passing the impugned order in execution proceeding and the revisional court fell into self-same error. It is not a case in which it could be assumed that facts were so intricate and overlaid with correct and incorrect facts that sifting of facts led to converging to an erroneous conclusion. The argument calling in aid the provisions of U. P. Act No. 13 of 1972 introduced in the executing court is nothing but a clearly executed hoax and red-herring as a part of legal ingenuity to prolong and protract the finale to a long raging case. I would not commend extension of long raging dispute. In the instant case, the petitioner who is a retired Government servant must have dreamt of living in his own house in the evening of his superannuated life which dream proved illusory and must have been shattered into smootherins with the passage of as many as more than 32 years.
8. The law is well enunciated that execution court cannot go behind the decree passed by civil court. The decree in the instant petition passed by civil court received affirmance upto the second appeal preferred in the High Court. By this reckoning, the revisional court acted erroneously and illegally in holding that the decree was without jurisdiction and thus inexcutable in law. In view of what has been discussed above, it leaves no manner of doubt that the decree was rightly passed by a competent civil court and was thus executable in law and finding to the contrary is impaired and cannot be sustained in law.
9. Before parting, I would also like to refer to the decisions cited by the executing court as well as the revisional court for converging to the view leaning against the petitioner. The revisional court relied upon various decisions including decisions in B. V. Patankar v. C. G. Shastri, AIR 1961 SC ; Ramji Das v. Laxmi Kumar, AIR 1987 MP 78 ; Sunder Das v. Ram Prakash, AIR 1977 SC 1201 ; Sushil Kumar Mehta v. Govind Ram Bohra, 1990 (2) ARC 330 and Ratan Lal Jain v. Uma Shanker Vyas, 2002 (1) AWC 692 (SC) : JT 2002 (1) SC 472, in legitimation of the view taken by him. For the view I am taking, it is not necessary to dilate upon each decision cited above for their applicability and it would suffice to say that the decisions cited and relied upon by the revisional court, have no application to the facts of the present case.
10. In the above conspectus, I converge to the conclusion that the civil court was fully competent to pass decree and the said decree is executable upon a consideration that there existed no relationship of landlord and tenant between the plaintiff on one hand and defendant Nos. 1, 2 and 3 on the other hand considering the own admission of the defendant No. 1 in para 12 of the written statement.
11. As a result of foregoing discussion, the petition succeeds and is allowed. The impugned judgment dated 17.12.2003 and 10.5.2002, passed by revisional court as well as executing court respectively are hereby quashed. Considering that the petitioner who is a retired Government servant, has been denied the comforts of living in his own house since the year 1972, it is desirable that the executing court should proceed forthwith and take the execution matter to some finality within a period not exceeding three months.