Dismissed

Shivaji Verma Ram Babu and 3 Others v. Murari Lal Srivastava

Allahabad HC7 May 2018A227/8302/2016

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging a conviction and eviction decree. Upholding concurrent findings of fact by lower courts based on on-spot inspection and an Amin Commission report, the Court held the tenant violated compromise terms by constructing a new shop instead of a roof. The execution proceedings were allowed to proceed without further delay.

What did the court decide?

Writ petition dismissed; no further time granted; execution proceedings to proceed expeditiously.

Shivaji Verma Ram Babu and 3 Others Vs Murari Lal Srivastava — Partition | Allahabad HC (2018)

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Court No. - 26

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Case :- MATTERS UNDER ARTICLE 227 No. - 8302 of 2016 Petitioner :- Shivaji Verma (Ram Babu) And 3 Others Respondent :- Murari Lal Srivastava Counsel for Petitioner :- Pradeep Kumar,Kailash Nath Kesharwani

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Counsel for Respondent :- S.C.,Arvind Kumar Srivastava Hon'ble Mrs. Sangeeta Chandra,J.

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Oral

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This petition has been filed praying for setting aside the judgment and order dated 21.2.2015 passed by Small Cause Court, Civil Judge (Junior Division), Etawah in SCC Suit No. 20 of 2002 (Murari Lal Srivastava Vs. Satya Narain) and the order dated 12.8.2016 passed in SCC Revision No. 2 of 2002.

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Learned counsel for the petitioners has submitted that the father of the petitioner was the tenant of the disputed premises which included one room, tin shed and chabutra towards west of room for past several years at the rate of Rs. 30/- per month. The whole of the premises i.e. the room, tin shed and western chabutra was in one and single tenancy of the father of the petitioner.

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The respondent / landlord filed Original Suit No. 105 of 1999 for eviction of the tenant from the western chabutra, room and tin shed. A compromise was entered into during the pendency of the litigation which was filed before the Trial Court on 5.2.1996. On the basis of said compromise, the Suit was disposed of.

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It has been argued that since Original Suit No. 105 of 1989 was filed by the father of the respondent in respect of chabutra alone, the compromise was also with respect to chabutra alone on the western side and the father of the petitioner was allowed to cover the same chabutra by the compromise dated 5.2.1996.

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It was also agreed by the father of the petitioner that he shall hand over 10' wide space on the western side of the western chabutra to the respondent / landlord and rest of the chabutra shall remain in his tenancy on which the tenant shall be free to raise construction as per the compromise, later on, the respondent / landlord increased his demand and wanted 12' wide space of the western chabutra instead of 10' wide as agreed upon. The father of the petitioner handed over 12' wide space on western chabutra to the respondent / landlord to buy peace.

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However, when the petitioner started construction over the left over portion of the western chabutra as was permitted to him in the compromise dated 5.2.1996 the SCC Suit No. 20 of 2002 was filed by the respondent / landlord alleging therein not only default in payment of rent, but also taking a plea that material alteration has been made in the tenanted premises. The suit was contested and the learned Judge Small Causes Court delivered his judgment on 21.2.2015 dismissing the Suit on the ground of default in payment of rent, but decreeing the Suit on the ground of material alteration in the tenanted premises.

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Aggrieved by the decree, the petitioners filed SCC Revision No. 2 of 2015 which was also rejected by the District Judge, Itawah. According to the petitioners, the learned Courts below failed to notice the terms and conditions of the compromise dated 5.2.1996. Not only was the father of the petitioner allowed to raise a pucca construction over the tin shed, but also over the chabutra. There were no pleadings on record regarding material alteration in the tenanted premises and also no pleadings on record that the construction so raised by the tenant diminished the value of the property or led to its disfigurement.

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Learned counsel for the petitioners has placed reliance upon four judgments rendered by a Coordinate Bench of this Court which are as follows:-

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(i) R.A. Samuel Vs. VIIth A.D.J. 2005 (3) ARC 391

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(ii) Satish Chandra Agarwal Vs. Ist A.D.J., Shahjahanpur & others 2005 (3) ARC 484

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(iii) Hari Singh Vs. VIth A.D.J., Muzaffarnagar 2006 (1) ARC 408

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(iv) Ramesh Chandra Rastogi Vs. VIIIth A.D.J. & another 2006 (2) ARC 160 to buttress his argument regarding the plea of material alteration and the provisions of Section 21(2)(c) of the U.P. Act No. 13 of 1972 having to be fulfilled in their entirety before eviction can be ordered by the Court concerned.

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Learned counsel for the petitioner has submitted that first it had to be established by the learned Court below

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that material alteration had indeed been done to the tenanted premises. Secondly, it had to be made out from evidence that such material alteration amounted to devaluation of the property or had led to its disfigurement. Unless all the conditions mentioned under Section 20(2)(c) of the Act were fulfilled no eviction could be ordered by the Courts below.

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Learned counsel for the petitioners has also relied upon a judgment of the Hon'ble Supreme Court in Union of India Vs Ibrahim Uddin & another 2012 (8) SCC 148 and paragraph 62 thereof has been read wherein the Hon'ble Supreme Court has observed that a decision of a case cannot be based on grounds outside the pleadings of the parties. No evidence is permissible to be taken on record in absence of the pleadings in that respect. No party can be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. It was further held that where the evidence was not in the line of the pleadings, the said evidence cannot be looked into or relied upon by the Court concerned.

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Learned counsel for the petitioners has submitted that there were no pleadings in the plaint to show that any material alteration had been made in the premises in question, and therefore, reliance placed upon the Amin Commission report by the learned Trial Court and the Revisional Court were misplaced. As firstly, there should be pleadings on record and then only evidence can be collected and report submitted by the Amin's Commission

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could be looked into.

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Learned counsel for the petitioners has read out the conditions mentioned in the compromise dated 5.2.1996, a copy of which has been brought on record and paragraph 3 thereof. The paragraph 3 of the compromise related to construction which could be raised by the tenant and is being quoted herein below in its entirety:-

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^^;g fd dksBk tks /kUuh ls iVk gS mlds /kUuh ds iVku dks gVk dj ifV;k dk iVku djkus o Vhu 'ksM dks gVk dj ifV;k dk iVku o mlds vkxs pcwrjk ij ifV;k dk iVku Mkyus esa oknh dks dksbZ ,rjkt ugha gSA izfroknh mDr fuekZ.k LosPNkuqlkj djus ds fy;s LorU= gSA**

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It is the petitioners case that the room was already a pucca construction, the tin shed adjoining it on the west could be retained and a pucca roof could be made thereupon only by constructing a wall to the west of the tin shed on the western chabutra, and it was permitted in the compromise that the chabutra itself could be enclosed and covered and made out into a shop. The petitioners / tenants had only raised a wall on the chabutra to construct a pucca roof over the tin shed and had enclosed the western chabutra by leaving 12' wide space on the west for the landlord to occupy for his own use. The enclosure of the chabutra did not in any way tend to diminish the value of the property nor had led to its disfigurement.

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Sri H.N. Singh, learned senior counsel assisted by Sri Arvind Kumar Srivastava for the respondent / landlord on the other hand has referred to paragraphs 5 & 7 of the

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plaint of the SCC Suit where a specific averment has been made that in contravention of paragraph 3 of the compromise dated 5.2.1996, the petitioner/ tenant had demolished the western wall on the western chabutra and had also demolished the northern and eastern walls on the chabutra / ghera and constructed a new shop thereon without any consent from the landlord and without even getting the plan sanctioned from the local authority. This had amounted to material alteration and disfigurement of the property.

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Learned Senior Counsel has also pointed out several passages from the written statements filed in reply to the plaint by the petitioner / tenant. There is no specific denial regarding demolition of the western wall or the demolition of the northern and eastern walls or of the allegation of the construction of a new shop on the western chabutra / ghera. The averments made in the paragraphs 5 & 7 of the written statement have been read out which amount to a bald denial. Even in the additional pleas taken by the petitioner / tenant in the written statement, there is no averment as to what constructions exactly had been made which were allegedly allowed by the compromise dated 5.2.1996.

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Sri H.N. Singh, learned Senior Advocate has also pointed out various passages from the order passed by the learned Judge Small Causes Court which enumerate the construction raised by the petitioners / tenant in detail and also the findings of the Revisional Court have been read which were both on the basis of on the spot inspection and

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map drawn thereafter of the disputed premises. The map in question has been referred to repeatedly as Paper No. 20-Ga.

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The respondent / landlord had also approached the Regulatory Authority against unauthorised construction being raised by the tenant and the Regulatory Authority had also visited the spot in question and had drawn up a map thereof which has been referred to as paper no. 28Ga /1.

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There is a specific finding in the Amin report marked as Paper No. 67-Ga/3, to the effect that the petitioner / tenant has violated the terms mentioned in the compromise dated 5.2.1996 and set up a new shop with two shutters on the chabutra / ghera whereas he had been given permission to raise a pucca roof over the tin shed and over the temporary construction already existing on the chabutra / ghera.

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Having heard the learned counsel for the parties and having gone through the findings of the learned Courts below, this Court is of the considered opinion that the learned Courts below have given concurrent findings of fact regarding construction raised by the petitioner / tenant being against the terms of the compromise dated 5.2.1996.

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It has also been found by the learned Courts below that the construction raised by the petitioners / tenant had obstructed the view of the house of the landlord which was situated on the southern side of the said chabutra leaving

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a small triangular space which was not suitable for any usefull construction for the landlord.

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The concurrent findings recorded by the learned Courts below are on the basis of on the spot inspection carried out by the Regulatory Authority, and the report submitted by the Amin Commission. These findings cannot be said to be against the material on record or perverse in any manner.

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The judgment of the learned Courts below therefore are affirmed. The writ petition is dismissed.

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Learned counsel for the petitioners has prayed for sometime to be given to the petitioners to comply with the order passed by the learned Courts below.

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The execution proceedings are going on and the mater has come up today only because the learned counsel for the petitioners had on an earlier occasion argued before this Court that the execution proceedings are in the final stage and his dispossession was imminent on 5.5.2018, when the police force as requested by the Prescribed Authority had been made available.

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This Court does not find it appropriate to give any more time to the petitioner / tenant. Let the executing Court take appropriate measures for compliance of the order passed by the learned Courts below expeditiously.

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Order Date :- 7.5.2018 Arif

Shivaji Verma Ram Babu and 3 Others v. Murari Lal Srivastava

Case brief

What is this about?

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Shivaji Verma Ram Babu and 3 Others v. Murari Lal Srivastava

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