# Smt. Phoola Devi & Ors v. Smt. Bhagwan Dei & Anr

- **Citation:** (2020) 6 ILRA 594
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-05
- **Case number:** Matters Under Article 227 No. 1518 of 2020
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-phoola-devi-ors-v-smt-bhagwan-dei-anr-45863
- **Pages:** 9

## Headnote

Indian Evidence Act, 1877-Section 116 -
Tenant cannot deny title of the landlordhowsoever defective it is-he must surrender
possession to landlord before challengingNothing
on
record-that
Petitioners
have
surrendered possession-before challenging title
of
landlord-Petitioners
are
estopped
in
challenging the title.

Writ Petition dismissed. (E-9)

List of cases cited:-

## Text

594 INDIAN LAW REPORTS ALLAHABAD SERIES
mens rea, with common intention. When
Irfan tried to intervene. He too was badly
beaten by them. He was under medical
treatment. Meaning thereby, at that very
time, it was written that accused persons
have
badly
assaulted
them,
causing
grievous hurt on 11.05.2018 and Irfan was
under treatment in hospital till above date
of 22.05.2018. Meaning thereby, for about
10 days, he was under treatment in the
hospital, even then, this non-cognizable
report was lodged, which shows the error
apparent in registering of above case crime
number. However, it is not to be
commented
by
this
Court,
because
subsequently this was cured by registering
first
information
report
for
offence
punishable under Sections 323, 504, 308
I.P.C. on the information of same day on
24.01.2019. The medico legal report of
Irfan
Khan,
medically
examined
on
11.05.2018 at 4.30 P.M., was there,
wherein injuries were (i) Lacerated wound
4cm x 1.5cm middle part of right and left
M deep V type parietal region (ii)
Lacerated wound 2.5cm x 0.5cm left side
of occipital region 8.5cm far from lateral
ear (iii) complaint of pain over back side
(4) Traumatic swelling 3cm x 2cm just
below left eyebrow (v) Lacerated wound
1.0 x 2cm front part of middle finger.
Though, these injuries were opined to be
simple, but it was a medical report of
hospital, where he was under treatment i.e.
J.N. Medical College Hospital, Aligarh
Muslim University, Aligarh, when general
condition of patient was unstable with his
condition, written in this report, and
thereafter in his local examination, those
lacerated wounds over forehead fronto
parietal region were found, resulting
unconsciousness and agitated, which was
confirmed
by
CT
scan
and
X-ray,
thereafter,
he
was
referred
for
Neurosurgeon. The other injuries too over
occipital region and suspected to be
grievous, for which C.T. Scan was referred.
In C.T. Scan the large extra-axial hyper
density with CT value of blood overlying
the right fronto parietal lobe 8/0 extra-axial
bleed (maximum thickness 1.6cm) with
mass effect in the form of effacement of
cortical sulei of B/L (R>L) Cerebral
Hemisphere and midline shift of 8mm
towards left was there. Meaning thereby,
there was abnormality in above hemisphere
and it was under above injury, for which
C.T. Scan was referred. Hence seat, size
and nature of injuries found in C.T. Scan
was fully sufficient, for filing of charge
sheet, for offence punishable under Section
308 I.P.C. Accordingly, charge sheet was
filed and Magistrate has taken cognizance
for these offences, on the basis of evidence
in case diary, because of which, learned
revisional court has dismissed revision and
it was with full reason.

6. There seems to be no illegality or
irregularity in either of order of lower
court. Accordingly, this petition merits its
dismissal. The petition is dismissed as
such.
----------
(2020)06ILR A594
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.03.2020

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Matters Under Article 227 No. 1518 of 2020
(Civil)

Smt. Phoola Devi & Ors. ...Petitioners
Versus
Smt. Bhagwan Dei & Anr. ...Respondents

Counsel for the Petitioners:
Sri Nasiruzzaman, Sri Mohit Kumar Jaiswal
6 All. Smt. Phoola Devi & Ors. Vs. Smt. Bhagwan Dei & Anr.
595
Counsel for the Respondents:
Sri Manish Tandon, Sri Atul Dayal

Indian Evidence Act, 1877-Section 116 -
Tenant cannot deny title of the landlordhowsoever defective it is-he must surrender
possession to landlord before challengingNothing
on
record-that
Petitioners
have
surrendered possession-before challenging title
of
landlord-Petitioners
are
estopped
in
challenging the title.

Writ Petition dismissed. (E-9)

List of cases cited:-

1. Prahlad Singh and Others Vs. Union of India
and Others 2011 (4) AWC 3650

2.State of A.P. and Others Vs. D. Raghukul
Pershad (D) by L.Rs. & Others 2012 (5) AWC
4378 (SC).

3.Raju Savita Vs. Amarnath 2018 (2) ARC 533

4. Sheela Jawarlal Nagori & Another Vs. Kantilal
Nathmal Baldota & Others 2014 (3) ARC (5)

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard learned counsel for the
petitioners and Sri Atul Dayal, learned Senior
Advocate assisted by Sri Manish Tandon,
learned counsel for the respondents.

2. The petitioners are defendants in Suit
No.225 of 2007 and have assailed the
judgement and order dated 10.12.2019 passed
by Additional District Judge, Court No.14,
Kanpur Nagar whereby he has allowed the
SCC Revision No.37 of 2017 and decreed the
Suit No.225 of 2007 of respondents (plaintiffs
in the suit) against petitioners for eviction.

3. The facts of the case, in brief, are that
respondents no.1 Smt. Bhagwan Dei (since
deceased) and respondent no.2/1 Smt. Renu
Gupta instituted Suit No.225 of 2007
(hereinafter referred as 'Suit') against petitioners
praying for a decree of eviction from House
No.5/167, Purana Kanpur Nagar Road, Kanpur
Nagar (hereinafter referred to as 'suit property'),
and for recovery of arrears of rent and damages.
The case of the respondents in the plaint was
that the maternal uncle of respondent no.1 was
the owner of the suit property. After his death,
his sister Smt. Rani Devi and respondent no.1
became joint owner of the suit property. Smt.
Rani Devi died on 20.06.2005 and after her
death, her share devolved upon respondent
no.2/1. One Shiv Mangal Gupta was the tenant
of one room facing Ganga river @ Rs. 5/- per
month and two rooms facing roadside @ Rs.
100/- per month. It was further pleaded that
Shiv Mangal Gupta tried to encroach upon the
land appurtenant to the suit property which led
to the institution of another Suit No.610 of 1999
by respondents against Shiv Mangal Gupta in
which temporary injunction was granted.

4. In the said suit, Shiv Mangal Gupta
filed written statement admitting the tenancy of
one room towards river Ganga but denied the
tenancy of two rooms towards the roadside.
Shiv Mangal Gupta died on 16.02.2007. After
his death, Petitioners being legal heirs of Late
Shiv Mangal Gupta became the tenant of the
suit property. It was further stated that neither
Shiv Mangal Gupta nor his heirs paid rent of
the suit property. Consequently, a notice dated
12.06.2007 was sent to the petitioners
terminating the tenancy which returned
unserved
on
21.06.2007
with
the
endorsement 'not claimed'. It is further
averred that the tenancy of the petitioners
came to an end on expiry of 30 days from
21.07.2007;
the
petitioners
are
in
unauthorized
occupation
of
the
suit
property since 22.07.2007. Since the major
portion of the rent had become time-barred,
therefore, respondents prayed for a decree
of rent of three years before the institution
of the suit beside the decree for eviction.
596 INDIAN LAW REPORTS ALLAHABAD SERIES

5. The suit was contested by all the
petitioners by filing two written statements,
one by petitioner nos.2, 3 and 5 jointly and
the other by petitioner nos.1 & 4.

6. The petitioner no. 2, 3 & 5 averred
in their written statement that Late Shiv
Mangal Gupta was the tenant of one room
of the suit property since last 40-45 years.
They further pleaded that suit property has
been acquired by Kanpur Development
Authority
(hereinafter
referred
to
as
'K.D.A.') for construction of Ganga road,
therefore, the respondents had no title or
interest in the suit property and on the
acquisition of the suit property, relationship
of tenant and landlord between the parties
came to an end due to which no rent was
paid to the respondents. It was further
stated in the written statement that the two
rooms have been constructed by the
petitioners and they are the owner of the
two rooms. It was further stated that
respondents
have
instituted
another
Original Suit No.814 of 2000 against K.
D.A., which is pending in the court of Civil
Judge (Senior Division), Kanpur Nagar,
seeking a decree of declaration in respect of
the suit property.

7. The stand of petitioner nos.1 & 4 in
the written statement was similar to the stand
taken by the petitioner nos.2, 3 & 5 in their
written statement. The petitioner nos.1 & 4
also admitted the tenancy of the suit property
in their written statement.

8. The trial court framed four issues
based on pleadings between the parties. The
issue no.1 was concerning the relationship of
landlord and tenant between respondents and
petitioners. Issue no.2 was in respect of default
in payment of rent by the petitioners. Issue
no.3 was as to whether tenancy of the
petitioners has been terminated by a valid
notice, and the issue no.4 was in respect of
relief which the respondents are entitled to.

9. The trial court, after appreciating
the facts and evidence on record, held
that though, in a suit for eviction, the
relationship of landlord and tenant is to
be seen, but the question of title is also
involved
incidentally
in
such
suit,
therefore, it can also be looked into. The
trial court found that respondents had
instituted the Suit No.814 of 2000 (Smt.
Rani Devi Vs. Kanpur Development
Authority) against KDA, and there are
material and evidence on record in the
said suit that suit property had been
acquired
by
KDA,
therefore,
the
respondents had failed to demonstrate
that they are the owner and the petitioners
are the tenant of the suit property. It
further held that as admittedly, rent was
not paid by the petitioners to the
respondents, therefore, there was no
relationship
of
landlord
and
tenant
between respondents and petitioners.
Consequently, it decided issue no.1
against the respondents.

10. As issue no.1 was decided
against respondents, accordingly, the trial
court decided the issue nos.2 & 3 also
against the respondents because of the
finding on issue no.1.

11. Feeling aggrieved by the order of
the trial court, respondents preferred SCC
Revision No.37 of 2017 which was allowed
by the revision court by recording a finding
that even if suit property had been
acquired, the suit for eviction and arrears of
rent instituted by the respondents was
maintainable. The revision court held that
in a suit for eviction, only the relationship
of landlord and tenant is to be seen between
the parties. By recording the aforesaid
6 All. Smt. Phoola Devi & Ors. Vs. Smt. Bhagwan Dei & Anr.
597
finding, it set aside the finding of the trial
court that question of the title being
incidental can also be considered in a suit
for eviction.

12. The revision court further held
that if there was any dispute between the
petitioners and KDA, petitioners cannot
take advantage of the said dispute until they
prove that they were inducted as a tenant in
the suit property by the KDA. It further
held that petitioners did not file any
evidence on record in the suit to prove that
possession of the suit property had been
taken over by the KDA. The revision court
further found that petitioners have admitted
the tenancy of the suit property, and thus,
the relationship of landlord and tenant
between respondents and petitioners is
proved. It further found that notice
terminating the tenancy was valid and
petitioners had defaulted in payment of
rent. Consequently, it decreed the suit of
the respondents.

13. Challenging the aforesaid order,
learned counsel for the petitioners has
contended that with the acquisition of Suit
Property, the respondent ceased to be the
owner of the suit property and there was no
relationship of landlord and tenant between
the respondent and the petitioner, therefore,
the suit was not maintainable. He further
submits that the KDA had taken the
symbolic possession of the suit property is
evinced from the Possession Memo (
Dakhalnama) dated 28.02.1973, therefore,
finding of the revision court that petitioners
had failed to prove that possession of the
suit property had been taken by the KDA is
illegal and perverse. Thus, his submission
is that revision court has committed
manifest illegality in allowing the revision
and decreeing the suit. He has placed
reliance upon paragraph 16 (iv) of the
judgement of Apex Court in the case of
Prahlad Singh and Others Vs. Union of
India and Others 2011 (4) AWC 3650.

14.

Refuting
the
aforesaid
submission, learned Senior Counsel for the
respondents by placing reliance upon
Section 116 of the Evidence Act, 1872 has
contended that petitioners have admitted in
their written statement that their father was
the tenant of the suit property through
whom
they
have
acquired
tenancy,
therefore, they are estopped in law in
denying and challenging the relationship of
landlord and tenant. In respect of the said
submission, he has placed reliance upon the
judgement of Apex Court in the case of
State of A.P. and Others Vs. D. Raghukul
Pershad (D) by L.Rs. & Others 2012 (5)
AWC 4378 (SC).

15. He further contends that in a suit
for eviction, the relevant issue which calls
for determination by the court is as to
whether
there
exists
relationship
of
landlord and tenant between the parties,
and in the present case, revision court
found that there exist relationship of
landlord and tenant between the parties,
therefore the Suit is maintainable. His
further submission is that finding of
revision court on the issue of the
relationship of landlord and tenant is based
upon the proper appreciation of evidence
on record and sound principals of law, and
as such is not liable to be interfered with by
this court. He further submits that trial
court has committed gross illegality in
recording a finding that suit was not
maintainable as respondents have failed to
prove their title over the suit property, and
said finding has rightly been corrected by
the revision court in the exercise of its
revision jurisdiction under Section 25 of
Provincial of Small Cause Courts Act,
598 INDIAN LAW REPORTS ALLAHABAD SERIES
1887.
In
support
of
his
aforesaid
submission, he has placed reliance upon the
judgement of this Court in the case of Raju
Savita Vs. Amarnath 2018 (2) ARC 533.

16. He further contends that the actual
physical possession was not taken by the
KDA and is with the respondents. He has
also placed reliance upon paragraph 16 (iii)
of the judgement of the Apex Court in the
case of Prahlad Singh (supra).

17. I have considered the rival
submissions of the parties and perused the
record.

18. In the present case, petitioners
have denied the relationship of tenant and
landlord on the ground that the suit
property had been acquired by KDA and
award had been passed in respect of the suit
property. However, the petitioners have
admitted in their written statements that
their father was the tenant of the suit
property. Further, DW-1 Munish Chandra
Gupta in his testimony has admitted that his
father was the tenant of the suit property
and had paid the rent of the suit property
last time in the year 1960. Thus, it is
established from the own case of the
petitioners that suit property was taken on
rent by their father and their father was the
tenant of the suit property.

19. At this point, it would be relevant
to refer Section 116 of the Indian Evidence
Act, 1877 which reads as under :

''Estoppel of tenant; and of
licensee of person in possession-

No tenant of immovable property,
or person claiming through such tenant,
shall, during the continuance of the
tenancy, be permitted to deny that the
landlord of such tenant had, at the
beginning of the tenancy, a title to such
immovable property; and no person who
came upon any immovable property by the
licence of the person in possession thereof,
shall be permitted to deny that such person
had a title to such possession at the time
when such licence was given."

20. This section precludes tenant of
an
immoveable
property
during
the
continuance of tenancy to deny the title of
the landlord at the beginning of the
tenancy, howsoever defective it may be.
Therefore, it implies that if the tenant
wishes to deny the title of the landlord, he
must first surrender the possession of the
property back to him. The Apex Court in
the case of State of A.P. (supra) has held
that the tenant will have to surrender
possession of the property to the landlord
before he can challenge the title of the
landlord. Paragraph 6 of the judgment in
the case of State of A.P. (supra) is
extracted hereinbelow:-

"6. The law is settled by this
Court in D. Satyanarayana vs. P. Jagdish
1987(4) SCC 424 that the tenant who has
been let into possession by the landlord
cannot deny the landlord's title however
defective it may be, so long as he has not
openly
surrendered
possession
by
surrender to his landlord. Although there
are some exceptions to this general rule,
none
of
the
exceptions
have
been
established by the appellants in this case.
Hence, the appellants who were the tenants
of the respondents will have to surrender
possession to the respondents before they
can challenge the title of the respondents."

21. Thus, to get out of the rigour of
Section 116 of the Evidence Act and the
law laid down by the Apex Court in the
above-referred case, the tenant has to
6 All. Smt. Phoola Devi & Ors. Vs. Smt. Bhagwan Dei & Anr.
599
surrender the possession of the property
before he can challenge the title of the
landlord. However, in the instant case,
nothing transpires from the record which
could demonstrate that petitioners have
surrendered the possession of the suit
property before challenging the title of the
respondent. Consequently, the petitioners
are estopped in law in challenging or
denying the title of respondents, howsoever
defective it may be in view of Section 116
of the Indian Evidence Act, 1877.

22. It would also be pertinent to refer
to the judgment of the Apex Court in the
case of Sheela Jawarlal Nagori & Another
Vs. Kantilal Nathmal Baldota & Others
2014 (3) ARC (5) wherein Apex Court has
held that landlord can maintain a suit for
eviction against tenant even if the tenanted
property has been acquired and an award
has been passed in respect thereof under the
provision of the Land Acquisition Act,
1894. Further, this court in the case of Raju
Savita (supra) has held that in a suit for
eviction, only the relationship of landlord
and tenant is to be seen.

23. It is evident from the aforesaid
discussion that the relationship of landlord
and tenant is established between the
respondent and the petitioner, therefore, the
suit of the respondent was maintainable.
Consequently, this court does not find any
merit in the submission of the counsel for
the petitioner that the suit was not
maintainable as on the acquisition of the
suit property by KDA, the tile of
respondent over suit property had vanished
and the relationship of landlord and tenant
had ceased to exist between the parties.

24. To appreciate the other contention
of the counsel for the petitioners that the
symbolic possession of the suit property
was taken by the KDA, it would be apt to
refer the judgement of Apex Court in the
case of Prahlad Singh (supra) relied upon
by both the parties wherein Apex Court has
considered the question as to whether
acquired land can be treated to have vested
in the State Government under Section 16
of the Land Acquisition Act, 1894 on the
making of an award with the Collector
though, the actual and physical possession
continues with the landowner. Paragraphs
10 and 16 of the said judgement being
relevant are extracted hereinbelow:-

"10.We have given our serious
thought to the entire matter and carefully
examined the records. Section 16 lays down
that once the Collector has made an award
under Section 11, he can take possession of
the acquired land. Simultaneously, the
section
declares
that
upon
taking
possession by the Collector, the acquired
land
shall
vest
absolutely
in
the
Government free from all encumbrances. In
terms of the plain language of this section,
vesting of the acquired land in the
Government takes place as soon as
possession is taken by the Collector after
passing an award under Section 11. To put
it differently, the vesting of land under
Section 16 of the Act presupposes actual
taking of possession and till that is done,
legal presumption of vesting enshrined in
Section 16 cannot be raised in favour of the
acquiring authority.

16. The same issue was recently
considered in C.A. No. 3604 of 2011 -
Banda Development Authority, Banda v.
Moti Lal Agarwal decided on 26.4.2011.
After making reference to the judgments in
Balwant Narayan Bhagde v. M.D. Bhagwat
(supra), Balmokand Khatri Educational
and Industrial Trust v. State of Punjab
(supra),
P.K.
Kalburqi
v.
State
of
Karnataka (supra), NTPC v. Mahesh Dutta
600 INDIAN LAW REPORTS ALLAHABAD SERIES
(supra), Sita Ram Bhandar Society v. Govt.
of NCT, Delhi (supra), Omprakash Verma
v. State of Andhra Pradesh (supra) and
Nahar Singh v. State of U.P. (1996) 1 SCC
434, this Court laid down the following
principles:

"(i) No hard and fast rule can be
laid down as to what act would constitute
taking of possession of the acquired land.

(ii) If the acquired land is vacant,
the act of the concerned State authority to
go to the spot and prepare a panchnama
will ordinarily be treated as sufficient to
constitute taking of possession.

(iii) If crop is standing on the
acquired land or building/structure exists,
mere going on the spot by the concerned
authority will, by itself, be not sufficient for
taking possession. Ordinarily, in such
cases, the concerned authority will have to
give notice to the occupier of the
building/structure or the person who has
cultivated the land and take possession in
the presence of independent witnesses and
get their signatures on the panchnama. Of
course, refusal of the owner of the land or
building/structure may not lead to an
inference that the possession of the
acquired land has not been taken.

(iv) If the acquisition is of a large
tract of land, it may not be possible for the
acquiring/designated authority to take
physical possession of each and every
parcel of the land and it will be sufficient
that symbolic possession is taken by
preparing appropriate document in the
presence of independent witnesses and
getting their signatures on such document.

(v)
If
beneficiary
of
the
acquisition is an agency/instrumentality of
the
State
and
80%
of
the
total
compensation is deposited in terms of
Section 17(3A) and substantial portion of
the acquired land has been utilised in
furtherance
of
the
particular
public
purpose, then the Court may reasonably
presume that possession of the acquired
land has been taken."

25. The principles underlined by the
Apex Court in the case of Prahlad Singh
(supra) are to be kept in mind while
adverting
the
issue
as
to
whether
possession of the suit property was taken
over by the KDA.

26. In the present case, the trial court
has relied upon the written statement and
the award No.24 dated 27.09.1961 filed by
KDA in Original Suit No.814 of 2000 in
returning a finding that possession of the
suit property had been taken by the KDA.
The revision court found that there was no
evidence on record in the present suit to
demonstrate
that
the
actual
physical
possession of the suit property had been
taken by the KDA; accordingly, it set aside
the finding of possession recorded by the
trial court on the ground that the approach
of the trial court was erroneous in relying
upon the written statement and evidence
filed by KDA in Original Suit No.814 of
2000 in absence of any evidence on record
in the present suit wherefrom it can be
evinced that the possession of the suit
property had been taken by KDA.

27. According to the petitioner, the
acquisition was of a large tract of land in
the instant case is evident from the written
statement and the award No.24 dated
27.09.1961 filed by KDA in Original Suit
No.814 of 2000,
and
the
symbolic
possession of the suit property had been
taken by the authority is also evident from
the possession memo dated 28.02.1973,
therefore, the present case falls within the
ambit of paragraph 16 (iv) of the judgement
of the Apex Court in the case of Prahlad
Singh (supra), and as such, the finding of
6 All. Smt. Phoola Devi & Ors. Vs. Smt. Bhagwan Dei & Anr.
601
revision court that the petitioners have
failed to prove that the KDA had taken the
possession of the suit property is illegal and
contrary to the record.

28. To determine that the present
case falls within the ambit of paragraph
16 (iv) of the judgement of Prahlad
Singh (supra), the first issue which crops
up for determination is whether the large
tract of land was acquired by the
authority and if so, the possession of the
land has been taken in the manner
envisaged
by
the
Apex
Court
in
Paragraph 16(iv) of Prahlad Singh
(supra). In the instant case, it is explicit
from the perusal of the two written
statements filed by the petitioners that no
factual foundation has been laid by the
petitioners that large tract of land was
acquired by the KDA and the possession
of the land was taken by the KDA in the
manner prescribed in paragraph 16(iv) of
the judgment of the Apex Court in the
case of Prahlad Singh (supra). The said
issue being an issue of fact can be
decided only on the basis of pleading and
evidence on record which in the instant
case is lacking. Further, it also transpires
from the record of the writ petition that
the certified copy of possession memo
dated 28.02.1973 filed as Annexure No. 8
is obtained from the record of Original
Suit no.252 of 2000 which is yet to be
proved by the KDA as per law in that
suit, and the issue as to whether
possession of the suit property had been
taken by the KDA is yet to be adjudicated
upon by the competent court in Original
Suit No.252 of 2000, consequently, the
possession memo cannot be relied upon
in the present suit to consider the issue
that possession of the suit property is
with KDA.

29. In the case in hand, indisputably
building exist on the land alleged to have
been acquired by KDA. Therefore, the
procedure provided in Paragraph 16(iii)
of Prahlad Singh's case (supra) is to be
complied with for taking possession of
the land. No evidence or material on
record was brought to the notice of the
court which indicates that any notice was
given by the KDA to the respondents and
possession of the land was taken in the
presence of independent witnesses and
panchanama was prepared taking the
signatures of the independent witnesses,
therefore, it is not established from the
record of the case that the procedure
envisaged in Paragraph 16(iii) of Prahlad
Singh's
case
(supra)
for
taking
possession
was
complied
with.
Consequently, this court finds that the
finding of the revision court on the issue
that possession of suit property had been
taken by KDA is not proved is correct
and based on the proper appreciation of
material on record. However, it is
clarified that the observation made
hereinabove about possession of the suit
property would not prejudice the rights of
the parties in Original Suit No. Original
Suit No.252 of 2000.

30. Accordingly, given the above
discussion, this court does not find any
substance in the submission of counsel
for the possession that the present case
falls within the compass of Paragraph
16(iv) of Prahlad Singh's case (supra).

31. Thus, for the reasons given
above, this Court does not find any good
ground to interfere with the judgement of
the revision court. Consequently, the writ
petition lacks merit and is dismissed with
no order as to costs.
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602 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)06ILR A602
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.06.2020

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Matters Under Article 227 No. 9650 of 2019
(Civil)

Yupender Kalra ...Petitioner
Versus
Pradeep Saigal ...Respondent

Counsel for the Petitioner:
Sri Vinayak Mithal

Counsel for the Respondent:
Sri Sumit Daga

A.
Respondent
landlord-filed
suit
for
eviction as material alteration has been
caused -to the property-and arrears of
rent-Argument of respondent landlord
was
concluded-date
was
fixed
for
Petitioner's
arguement-Petitioner
filed
Application 123 Ga- rent agreement-after
delay of 8 years-no reasonable and
satisfactory explanation for delay-and also
not
admissible
evidence-since
it
is
insufficiently
stamped
and
an
unregistered document-application 123
Ga
rejected-instead
challenging
itApplication 155 Ga filed-righty rejected
being barred by the principle of Res
Judicata.

Held, From the facts detailed above, it is
apparent that it is not the case of the petitioner
in the written statement that he has made
material alteration in the disputed shop in terms
of rent deed, therefore, the rent deed cannot be
read in evidence in the absence of any pleading
by the petitioner in the written statement. So,
the petitioner cannot take the help of rent deed
to negate the case of the respondent of
material alteration of the petitioner. Further,
the fact that the Petitioner acknowledges that
the rent deed is insufficiently stamped is
manifest from the act of the petitioner as he
did not challenge the order of the court below
dismissing the application 123GA rather he
filed an application 155Ga with a prayer to
impound the rent deed and direct the
authorities to accept deficient stamp duty,
compounding fee and penalty from him. The
aforesaid fact reflects that the purpose of
filing the application123Ga that too after eight
years is to delay the disposal of the suit.
Thus, this Court does not find any error or
illegality in the order dated 27.09.2017
rejecting the application 123Ga and the order
of revision court dated 20.03.2018 affirming
the order of the trial court dated 27.09.2017.
(Para 26)

Writ Petition dismissed. (E-9)

List of cases cited:-

1. SMS Tea Estates Private Limited Vs.
Chandmari Tea Company Private Limited 2011
(11) SCC 66

2. Darayo & Others Vs. State Of U.P. (1962) 1
SCR 574

3. Asha Agarwal (Smt.) and Others Vs. M/S
Arvind & Co. and Others 2015 All. C.J. 552

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri Vinayak Mithal, learned
counsel for the petitioner and Sri Sumit
Daga, learned counsel for the respondent.

2. The petitioner-tenant (hereinafter
referred as 'Petitioner') by means of the
present petition under Article 227 of
Constitution of India has assailed four
orders; (i) order dated 27.09.2017 passed
by Additional Small Causes Court, Meerut
in SCC Suit No.41 of 2010 whereby it
rejected the application 123Ga of the
petitioner for taking the rent deed dated
26.12.1986 and F.I.R. dated 17.11.1996 on
record, (ii) order dated 20.03.2018 passed
by the District Judge, Meerut in SCC
Revision No.8 of 2018 dismissing the