Mukesh Kumar Jindal vs Keshav Kumar Sahu on 5 February, 2020

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Allahabad High Court

Mukesh Kumar Jindal vs Keshav Kumar Sahu on 5 February, 2020

This is a SCC Revision under Section 25 of the Provincial Small Cause Courts Act, 1887 challenging the judgment dated 12.9.2019 passed by the SCC Court in SCC Case No. 1 of 2017. The suit was was for arrears of rent, ejectment and damages and had been filed by the opposite party against the revisionist.

The first and foremost issue which was to be seen by the SCC Court is the existence of landlord tenant (lessor-lessee) relationship between the plaintiff Sri Sahu and the defendant Sri Jindal, only then it would have jurisdiction in the matter in view of Section 15 of the Act, 1887 read with Schedule 2, Article 4 as applicable in the State of U.P. read with section 7 and Order (L) of the Code of Civil Procedure.

Point no. 1 determined by the SCC Court was with regard to landlord-tenant relationship and point no.2 was with regard to the alleged admission of the defendant who is in possession of premises in question based on an agreement to sale between erstwhile owner Sri P.K. Sinha and him dated 1.10.2014.

Before proceeding further to consider the judgment of the SCC Court in the light of the provisions contained in Section 25 of the Act, 1887 as to whether it is in accordance with law or not, it is worthwhile to mention the facts of case in brief.

It is an undisputed fact that Sri P.K. Sinha, the erstwhile owner of the premises in question sold of the entire property bearing no. B-70, situated at Nirala Nagar, Lucknow, ad-measuring 9,600 Square Feet in favour of the plaintiff-opposite party herein, Sri Keshav Kumar Sahu on 15.11.2008. However, out of the aforesaid, an area of 2,400 Square Feet was not handed over to the vendee, Sri Sahu. According to the defendant a tenancy was created by Sri P.K. Sinha with him sometime in 2013, although in one of the writ petitions filed before the High Court it was mentioned as having been created in 2010. Thereafter, on 1.10.2014 it is said that Sri P.K. Sinha entered into a registered agreement to sale in respect of the 2,400 Square Feet, which, though it was part of the sale deed executed by him in favour of Sri Keshav Kumar Sahu, but its possession was not handed over to him. The said agreement to sale contained a specific recital that possession of the property was not being handed over to Sri Mukesh Kumar Jindal (Revisionist herein) and the same would be handed over to him on execution of the sale deed. After execution of the aforesaid agreement to sale an F.I.R. was lodged by Sri Keshav Sahu alleging therein that fraudulently Sri P.K. Sinha had executed an agreement to sale in favour of Sri Mukesh Kumar Jindal. This F.I.R. was lodged on 20.2.2015. The said F.I.R. was challenged by the revisionist herein Sri Mukesh Kumar Jindal before this Court by means of Writ Petition No. 687 (M/B) of 2016. It is said that in the said writ petition, revisionist herein admitted the relationship of landlord and tenant with Sri P.K. Sinha and also the transfer of ownership of the premises in favour of Sri Keshav Sahu.

On 6.10.2016 the revisionist Sri Jindal herein filed a suit for permanent injunction against Sri P.K. Sinha, Sri Keshav Sahu and another, which is still pending and there is no temporary injunction has been granted in the said suit in favour of the revisionist. Prior to this, that is on 13.9.2016, Sri P.K. Sinha had filed a suit for cancellation of the registered agreement to sale dated 1.10.2014 against the revisionist, which is still pending.

It is stated by the opposite party that in view of the admission of landlord-tenant relationship by the revisionist with Sri P.K. Sinha, the erstwhile owner in Writ Petition No. 687 (M/B) of 2016 and in view of the statement of the revisionist in the aforesaid writ petition and in the suit for injunction that he had paid rent to Sri P.K. Sinha till January, 2016, a notice was issued to him by Sri Keshav Shau on 18.11.2016 for arrears of rent w.e.f. February, 2016, determining the tenancy and asking him to vacate the premises within 30 days and on failing to do so, SCC Suit bearing no. 1 of 2017 was filed by him for the reliefs aforesaid. It is this suit, which has been decided by the impugned judgment against which this revision has been preferred. Thus the suit of the plaintiff was based on the alleged admission of the defendant referred earlier.

It is not out of place to mention that subsequent to filing of SCC Suit, a Writ Petition bearing no. 4260 (M/B) of 2017 was filed by the revisionist Sri M.K. Jindal alleging disconnection of his electricity connection which was disposed of on 23.2.2017 with a direction to the concerned official to decide his representation, which was rejected on the ground that there was no document to prove landlord-tenant relationship in favour of the revisionist herein in respect of the premises in question. This led to filing of another Writ Petition bearing no. 2987 (M/B) of 2018, wherein, it is contended by the revisionist that a counter affidavit was filed by Sri Kehsav Sahu denying the relationship of landlord and tenant in respect of the premises in question involving the tenancy of the revisionist herein and also stating that the alleged rent-receipt issued by Sri P.K. Sinha in January, 2016 in favour of the revisionist was in fact forged. However, it must also be mentioned that no poof of such a counter affidavit having been filed was adduced by the revisionist before the SCC Court allegedly on account of closure of opportunity to lead evidence in response, to which learned counsel for the opposite party says that in spite of sufficient opportunity the revisionist-defendant did not avail the same.

Now, coming back to the judgment of SCC Court, it is found that based on the recital contained in agreement to sale dated 1.10.2014 executed by the erstwhile owner, Sri P.K. Sinha in favour of the revisionist Sri M.K. Jindal which contains a recital to the effect that possession of 2400 square feet area of the premises in question was not being handed over to Sri Jindal and the same would be handed over only on the execution of the sale deed, the SCC Court has recorded a finding that the defendant, Sri M.K. Jindal was not in possession of the suit property prior to 2014 but came into possession of the same sometime in 2015 or thereafter. The SCC Court has further opined that as regards possessory rights being claimed by the defendants based on such agreement to sale dated 1.10.2014 the same were without any basis as Sri P.K. Sinha had already executed a sale deed in respect of the entire property in favour of Sri Keshav Sahu, the plaintiff, on 15.11.2008, which has remained unchallenged and as such after the said date Sri P.K. Sinha did not have any right in law to execute an agreement to sale of any portion of the same property in favour of the defendant, Sri M.K. Jindal. Thereafter, the SCC Court relying upon the alleged admission of the defendant about the existence of landlord-tenant relationship has drawn an inference that consequent to the transfer of ownership the tenancy also got transferred in favour of Sri Keshav Sahu and, therefore, the same having been determined by a valid notice the suit was liable to be decreed in toto.

This Court is of the view that while recording the findings and decreeing the suit, SCC Court committed a manifest error in omitting to consider the fact, firstly, that once it recorded a finding that the defendant Sri M.K. Jindal was not in possession of the tenanted premises prior to 2014 then the alleged admission of the Revisionist Sri Jindal of tenancy with effect from 2010 or 2013 with Sri P.K. Sinha as landlord was automatically belied, but the Court on the one hand recorded the said finding and on the other relied on the admission of the defendant regarding tenancy from 2010 or 2013 which is apparently incongruous and self defeating as there was no admission of creation of any tenancy after 2013.

Secondly, when the SCC Court recorded a finding that after executing the sale deed dated 15.11.2008 Sri P.K. Sinha did not have any authority or right to enter into an agreement to sale in respect of the same property in favour of the defendant Sri M.K. Jindal and no rights could accrue in favour of Sri Jindal based on such agreement, it failed to take into consideration that on this very logic and this very reasoning Sri P.K. Sinha could not have created any tenancy either in 2010 or in 2013 in favour of the defendant Sri Jindal. The SCC Court also failed to consider that it was not the case of plaintiff that any landlord-tenant relationship had been created between the plaintiff and the defendant, independent of any such alleged relationship between Sri P.K. Sinha and Sri Jindal. In fact in para-7 of the plaint it was stated that because the defendant had accepted the landlord-tenant relationship with Sri P.K. Sinha, therefore, the plaintiff was also accepting the same.

Most importantly, the S.C.C. Court lost sight of the fact that it was not as if after creation of landlord-tenant relationship between Sri P.K. Sinha and Sri Jindal the sale-deed had been executed by Sri Sinha in respect of the premises including the tenanted portion in favour of Sri Sahu thereby transferring the tenancy also but it was a case where sale-deed is of 2008 much prior to creation of alleged tenancy by Sri P.K. Sinha who in fact had sold the premises on 15.11.2008 after which Sri Sinha had no right to create any tenancy in favour of Sri Jindal in 2013 or thereafter in respect of the said premises. It appears the alleged admission of Sri Sinha was to justify his possession and to put a cloak of legality to it in the eyes of law.

If the tenancy could not have been validly created by Sri P.K. Sinha in view of what has been stated hereinabove then there is no question of any such admission on such point, at least as of now, subject of course to reconsideration of the matter by the SCC Court after taking into consideration such other evidence as may available on record as this Court proposes to remand the matter back to the SCC Court because the judgment impugned cannot be said to be in accordance with law for the reasons aforesaid. A reference may be made in this regard to the decision of Supreme Court reported in 1995 6 SCC 580; Dr Ranbir Singh vs. Asharfi Lal, wherein for eviction in such cases landlord-tenant relationship has necessarily to be established and question of title is not germane, though it can be seen incidentally.

As regards contention of the learned counsel for the opposite party that the alleged rent-receipt issued by Sri P.K. Sinha in his favour in January, 2016 was forged and had been found to be forged on forensic examination, this Court does not find any such finding having been recorded by the SCC Court, however, even if for the sake of discussion this contention is accepted, it goes against the interest of the plaintiff as it belies the existence of landlord-tenant relationship between Sri P.K. Sinha and Sri M.K. Jindal, consequentially it belies any such relationship between Sri Jindal and Sri Sahu, though it may reflect upon the conduct of the revisionist.

The question herein is of jurisdiction of the SCC Court, which cannot order eviction except when there is a landlord-tenant (lessor-lessee) relationship and a determination of the same in view of the Section 15 read with Article 4 of Schedule 2 as applicable to State of U.P. and section 7 and Order L of the Code of Civil Procedure, which, as far as the SCC Court is concerned, is the sine qua non for giving it jurisdiction in respect of such a plaint. If the occupation or possession is otherwise illegal, i.e. it is not based on such relationship as referred in the aforesaid provision of the act 1887, then, the remedy lies elsewhere and not before the S.C.C. Court.

As regards the contentions of the learned counsel for th opposite parties that the revisionist had been changing his stand from time to time, in fact, it appears that both the parties in order to seek relief may have been making contrary statements before different forums which is an aspect which should be considered in a better way by the SCC Court. It is also the case of the revisionist himself that the plaintiff after having filed the suit has denied landlord-tenant relationship in subsequent writ proceedings, however, in this regard no evidence could be led before the SCC Court. Therefore this would also be an aspect to be considered by the S.C.C. Court.

The above discussion has been made for the reason, based on the aforesaid, question of jurisdiction of SCC Court is involved, as, in the event it is found that landlord-tenant relationship did not exist, then the SCC Court would not have jurisdiction even if the defendant was otherwise in unauthorized occupancy and the remedy in such a scenario would be before a regular civil court as per law.

For the reasons aforesaid, the impugned judgment is hereby set aside.

SCC Suit No. 1 of 2017 shall now be proceeded afresh by the SCC Court in the light of the observations made hereinabove and to facilitate a just and proper adjudication of the matter one opportunity is granted to the revisionist herein and the opposite party herein to lead any such evidence which may be relevant and admissible to the issues involved before the SCC Court within three weeks from the date of furnishing of certified copy of this judgment thereafter the matter shall be posted for hearing and the proceedings shall be concluded by the SCC Court positively within two months. The matter shall be proceeded by the SCC Court on day to day basis as and when necessary. None of the parties shall seek unnecessary adjournments nor shall it be granted by the SCC Court.

Both the contesting parties who are present before this Court shall appear before the SCC Court on 19.2.2019 for further proceedings.

With the aforesaid observations/direction, the revision is disposed of.

Order Date :- 5.2.2020 Aditya (Rajan Roy, J.)

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