# Mahabir Prasad Jain v. Ganga Singh

- **Citation:** (2012) 1 ILRA 76
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-01-10
- **Case number:** Civil Misc. Writ Petition No. 8301 of 1987
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahabir-prasad-jain-v-ganga-singh-42259
- **Pages:** 3

## Headnote

Small Cause Courts Act, Section 25Revision-dismissed
without
considering-question
whether
possession by agent or servant is
possession of owner or possession as
tenant -Trail Court without evidence
wrongly
decided-held-committed
patent illegality-revision to return on
its original number-direction to decide
this issue within time bound periodgiven.

Held: Para 12

In view of the law laid down by the
Supreme Court in the case of Mahabir
Prasad Jain (supra), the order passed
by the revisional authority cannot be
legally sustained. The revisional court
is
duty
bound
to examine
as
to
whether in the facts of the case the
plaintiff has been able to establish that
he was the tenant of the premises in
question or not.
Case law discussed:
1999 (37) ALR 742

## Text

76 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.01.2012

BEFORE
THE HON'BLE ARUN TANDON,J.

Civil Misc. Writ Petition No. 8301 of 1987

Smt.Akila & others

...Petitioner
Versus
Nisar Ahmad & others ...Respondents

Counsel for the Petitioner:
Sri Virendra Singh
Sri B. Dayal
Sri Vishnu Sahai

Counsel for the Respondents:
Sri Harish Chandra
Sri A.K.Jaiswal
S.C.

Small Cause Courts Act, Section 25Revision-dismissed
without
considering-question
whether
possession by agent or servant is
possession of owner or possession as
tenant -Trail Court without evidence
wrongly
decided-held-committed
patent illegality-revision to return on
its original number-direction to decide
this issue within time bound periodgiven.

Held: Para 12

In view of the law laid down by the
Supreme Court in the case of Mahabir
Prasad Jain (supra), the order passed
by the revisional authority cannot be
legally sustained. The revisional court
is
duty
bound
to examine
as
to
whether in the facts of the case the
plaintiff has been able to establish that
he was the tenant of the premises in
question or not.
Case law discussed:
1999 (37) ALR 742

(Delivered by Hon'ble Arun Tandon,J. )

1. Small Causes Suit No. 14 of
1982
was
filed
by
the
plaintiffrespondent under Section 6 of the
Specific Relief Act for his possession
being restored over the property in
question. The suit was contested by the
present petitioner.

2. It was admitted to the parties that
the disputed property was owned by one
Sri Abdul Rashid, the father of the
present petitioner and further that Abdul
Rashid had since shifted to Pakistan.

3. According to the petitioner she
was tenant of the premises and illegally
dispossessed, therefore the suit. The
defendant in turn claimed title over the
property on the basis of the gift executed
by her father.

4. The Judge Small Causes framed
7 issues for determination including
issue no. 6; as to whether the plaintiff
was the tenant of the premises or not.
After evidence was led by the parties, the
trial court answered the issue, with
regard the plaintiff being tenant of the
premises as he had established his
possession
and
his
being
illegally
dispossessed, in favour of the plaintiff.
The trial court further held that the
defendant has failed to establish the gift
deed. Accordingly, the suit was decreed
vide order dated 22.08.1983.

5. The plaintiff filed the revision
under Section 25 of the Small Causes
Court's Act, 1987. The revision has also
been
dismissed
under
order
dated
08.04.1987. The findings recorded by the
court below have been found to be based
on appreciation of evidence, which need
1 All] Smt.Akila & others V. Nisar Ahmad. & others
77
not be upset in revisional proceedings
under Section 25 of the Small Causes
Court's Act.

6. Challenging the order so passed
counsel for the petitioner submitted that
the Supreme Court of India in the case of
Mahabir Prasad Jain vs. Ganga Singh,
reported in 1999(37) ALR 742 has laid
down that the possession of a servant or
an agent will not in itself give a
presumption of tenancy and that the
possession of a servant/agent is on behalf
of the master and therefore a suit on
behalf of agent/servant under Section 6
of the Specific Relief Act would not be
maintainable. It is contended that in the
facts of the case despite a specific issue
being framed by the trial court qua the
plaintiff being a tenant of the premises at
the rate of Rs. 5/- per month, no
conclusive finding has been recorded on
the said issue, although issue no. 6 has
been answered in favour of the plaintiff.
He, therefore, submits that the orders
impugned are illegal.

7. According to the counsel for the
petitioner before the revisional court it
had specifically been contended that the
plaintiff was not the tenant and therefore
mere possession would not entitle him to
a decree under Section 6 of the Specific
Relief Act. The revisional court, even
noticing the said plea, only on the basis
of possession his dismissed the appeal
and maintained the decree without
recording any conclusive opinion as to
whether the plaintiff was tenant of the
premises or not.

8. It is submitted that the revisional
court has misdirected itself in recording a
finding with regard to the right of the
plaintiff to claim possession of the new
house, which has been constructed in
place of old house, without adverting to
basic issue as to whether the plaintiff has
been able to establish that he was tenant
of the premises in question and therefore
entitled to maintain the suit under
Section 6.

9. I have heard learned counsel for
the parties and have examined the
records.

10. The Supreme Court of India in
the case of Mahabir Prasad Jain (supra)
has specifically held that mere exclusive
possession itself will not give any
presumption of tenancy and further that a
suit by an agent or by the servant under
Section 6 against the master would not
be maintainable.

11. What logically follows is that a
categorical finding had to be arrived at
by the courts below as to whether in the
facts of the case the plaintiff had been
able to establish that he was the tenant of
the
premises
in
question.
Mere
possession will not lead to a presumption
of tenancy. The revisional court has
misdirected itself in coming to a
conclusion that merely because the
plaintiff has been able to establish his
exclusive possession, he is deemed to be
the tenant of the premises.

12. In view of the law laid down by
the Supreme Court in the case of
Mahabir Prasad Jain (supra), the order
passed by the revisional authority cannot
be legally sustained. The revisional court
is duty bound to examine as to whether
in the facts of the case the plaintiff has
been able to establish that he was the
tenant of the premises in question or not.
78 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

13. Since said aspect of the matter
has completely been ignored by the
revisional authority, the order passed by
the revisional court dated 08.04.1987 is
hereby set aside.

14. Revision no. 122 of 1983 is
restored to its original number. Let the
same
be
decided
after
affording
opportunity of hearing to the parties
concerned by means of a reasoned order,
preferably within six months from the
date a certified copy of this order is filed
before the revisional court, specifically
in light of the judgment of the Supreme
Court in the case of Mahabir Prasad
Jain (supra).

15. Revision is allowed subject to
the observations made.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.01.2012

BEFORE
THE HON'BLE RAN VIJAI SINGH,J.

Civil Misc. Writ Petition No. 8587 of 2008

Pramod Kumar

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Arvind Yadav
Sri Mithilesh Kumar Tiwari

Counsel for the Respondents:
C.S.C.

U.P.
Recruitment
to
Services
(Determination of Date of Birth) Rules ,
1974-Rule
2-Petitioner's
selection
canceled-on ground in declaration formDate of Birth shown as 05.07.1986during verification from college Date of
Birth found 02.08.1977-order passed
without affording opportunity-original
certificate produced with specific plea
that there are two persons of similar
name-one Sharma, the other one Yadavpetitioner is Yadav by caste-eventually a
fit case for enquiry-order impugned
entail civil consequences-can not be
passed without taking recourse of the
principle of Natural Justice.

Held: Para 11

It is not the case of respondent that High
School certificate issued to the petitioner
has either been cancelled or annulled by
the Board or any other competent court.
Therefore, I am of the view that as long
as High School certificate issued in the
year 2005 is there, the respondents were
not justified to cancel the selection of
the petitioner on the assumption that he
has passed High School in the year 1992,
particularly in the circumstances where
the petitioner has come with specific
case as stated in paragraph 2 of the
supplementary rejoinder affidavit that
there were two persons of the same
name i.e. Promod Kumar of the same
parentage one belonging to Sharma and
another Yadav by caste. The petitioner
belongs to Yadav by caste. In that
eventuality also this was a case for
inquiry and had the petitioner was ever
offered an opportunity of hearing before
passing the impugned order, this aspect
of the matter ought to have been
explained
and
considered
before
reaching
the
conclusion
that
the
petitioner has played prayed fraud. I find
that the impugned order has vice of
principle of natural justice and it is well
settled law that an order which involves
civil consequences must be just, fair,
reasonable, unarbitrary and in confirmity
with the principles of natural justice.
Case law discussed:
1952 SCR 284; AIR 1952 SC 75:1952 Crl.L.J.
510; (1967) 2 SCR 625; AIR 1967 SC 1269;
(1967) 2 LLJ 266; (1978) 1 SCC 405; (1978) 1
SCC 248; 1993 SCC 259; 2005 (6) SCC 321;
(2007) 6 SCC 668; 2008 (3) ESC 433 (SC)