1. The plaintiff has filed this revision under Section 25 of the Provincial Small Cause Courts Act (Act No. 9 of 1887) challenging the judgment and decree dated 11-2-86 passed by Judge, Small Cause Court (VI Additional District Judge) Sitapur, dismissing the suit filed by the revisionist for the ejectment of opposite parties and for arrears of rent. Plaintiff Anurag Misra, a minor had filed the suit giving rise to this revision describing himself in the plaint as plaintiff filing the suit through his father as natural guardian. The plaintiff alleged that he is owner of House No. 3 Footkar Ashan, mohalla Loharbagh, in the town of Sitapur. The upper portion of the house in suit was constructed in the year 1973 and that the upper portion was separate from the lower storey portion that is to say, both the portions upper and lower were separate and independent units as per plaint allegations. The plaintiff further alleged that the U.P Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 (Act No. XIII of 72) did not apply to the premises in question i.e upper portion of the house in suit. The suit was filed on 28-4-77. The plaintiff alleged that upper portion of the house in suit was for the first time assessed to municipal tax in 1980. The plaintiff's case has been that the defendants were in occupation of the upper portion of the above mentioned house on a monthly rent of Rs. 250/-, plue water-tax and electricity charges since July, 1975. The plaintiff further alleged that according to the terms and conditions of the tenency, the defendants were to bear the water-tax and that they would pay water-tax at the rate of Rs. 3/- per month over and above rent of Rs. 250/- per month. As per plaint allegation the opposite-parties defendants did not pay water-tax and the plaintiff had to pay the entire dues of water-tax. The plaintiff further alleged in the plaint that he did not want to see the defendants to continue in occupation of the accommondation as tenant and so he issued notice determining the defendants' contract of tenency under Section 106 of the Transfer of Property Act of 26-2-77 which notice was served on the defendants on 28-2-77 and on 2-3-77 as a matter of precaution the plaintiff again issued a notice under Section 106 of the Transfer of Property Act and sent the same by registered post to defendant No. 1 which was served on 7-3-77. The defendants allowed the period of notice to expire and did not vacate the premises in dispute in compliance with the notice. The plaintiff, therefore, filed the suit for the following reliefs:
(a) decree for eviction in favour of the plaintiff and against the defendants from the accommodation in their tenency in House No. 3 Footkar Asthan, mohalla Loharbagh, pergana Khairabad, district Sitapur.
(b) decree for a sum of Rs. 736/- as arrears of rent and arrears of water-tax and compensation.
(c) the plaintiff further claimed a decree for compensation and damages for use and occupation pendente lite at the rate of Rs. 250/- per month plus Rs. 3/- per month towards water-tax.
2. It may be mentioned here that the plaint of the suit as appears from the record has been signed by Sudhakar Nath Misra as Mukhtar of Anurag Misra, minor.
3. The defendants contested the suit. Denied the plaint allegations and the right of the plaintiff to file the suit to determine the contract of tenency as well as plaintiff's right to file the suit for eviction against the defendants-opposities parties. The defendants case has been that in the 1975 the accommodation in dispute was let out to answering defendants by Shri Sudhakar Nath Misra, the grand-father of the plaintiff and plaintiff was minor at that time. The rent for the accomodation was realised by Sudhakar Nath Misra and there had been no contract of tenancy with the plaintiff or his father. Defendants further asserted that if the plaintiff wants to claim relief for eviction of the defendants and for possession over the property in suit on the basis of his title and ownership the suit was not cognizable by the Judge, Small Cause Court and was not maintainable in Small Cause Court. The defendants further alleged that U.P Act XIII of 72 was applicable to the house in suit as the same has been more than 20 years old construction and that suit was barred and not maintainable in view of provisions of Section 20(1) of the said Act. The defendants further asserted that the house in dispute had been constructed in 1973 and had been let out to the tenants thereafter and to the answering defendants in 1973, the assessment even if of the house in 1980 is not very material. The defendants also claimed the benefit of Section 39 of the Act.
4. On the basis of the pleadings of the parties the trial Court framed the following issues or points for determination:—
1. Whether U.P Act XIII of 72 does not apply to the premises in question?
2. Whether the rent of the premises in question is Rs. 250/- per month (excluding electricity and water-tax) as alleged by the plaintiff?
3. Whether the tenancy was settled with Shri Sudhakar Nath Misra, grand-father of the plaintiff and the instant suit is as such not maintainable as alleged in amended para 13 of the written statement?
4. To what amount of relief, if any, is the plaintiff entitled?
5. It is necessary to mention the following facts:
(a) That the defendants deposited the amount of rent claimed in the suit with interest and costs of the suit on the first date of hearing and denied to be entitled to get protection against eviction under Section 3 of the Act, and the plaintiff has alleged that U.P Act XIII of 72 did not apply so the defendants could not claim or get any benefit.
6. By judgment and decree dated 11-2-86 the trial Court i.e Judge, Small Cause Court (VI Additional District Judge) Sitapur dismissed the suit of the plaintiff with costs after having recorded the following findings:—
(a) that from the evidence on record it clearly appears that the contract of tenancy was entered into between Shri Sudhakar Nath Misra and defendants. As such, the notices under Sectio 106 of the Transfer of Property Act issued on behalf of the plaintiff at the instructions of his father and guardian were invalid and the suit was also incompetent and not maintainable. The trial Court held the house appears to belong and did actually belong to Shri Sudhakar Nath Misra and so does it still belong.
(b) that the rent of the accommodation was Rs. 250/- and his sum included everything i.e water-tax and there was no separate liability to pay the tax.
(c) that as admittedly the building in dispute and its construction had been completed in 1973 and not 1980. The U.P Act No. XIII of 1972 though it was not applicable on the date of the suit became applicable to the premises in suit during the pendency of the litigation when the period of 10 years from the date of construction of the premises in dispute in 1973 did expire in 1983 and, as such, the defendant were entitled to get benefit of Section 39 and they having complied with the requirements of Section 39 no decree for ejectment can be passed against him.
(d) the plaintiff's witness could not prove the plaint allegations. The tenency was determined illegally and the suit filed was incompetent having been filed by incompetent persons and as in this case the ownership and landlordship both have not been proved to vest in the plaintiff so the suit is liable to be dismissed as not maintainable.
7. The trial court having dismissed the suit with these observations, the plaintiff felt aggrieved from that decision i.e judgment and decree dismissing the plaintiff's suit the plaintiff has preferred the revision under Section 25 of the Provincial Small Cause Courts Act.
8. I have heard Shri S.K Kalia, learned counsel for the revisionist and Shri R.K Sharma, learned counsel for the opposite-parties at length. Shri Kalia in support of the revision on behalf of plaintiff-revisionist has made the following contentions:—
(a) That the learned Judge, Small Cause Court committed the jurisdictional error by holding that U.P Act XIII of 1972 (though it did not apply to the premises in suit on the date of the suit) became applicable to the building during the pendency of the suit when the premises in suit completed period of 10 years and in holding that defendants were entitled to the benefit of Section 39 of the Act.
(b) That the learned trial court erred in holding that no contract of tenancy had been entered into between the plaintiff-landlord through his natural guardian and the defendants-opposite-parties and in this connection he has invited my attention to Paper No. C-75 dated 1-7-75, the execution of which has been denied on behalf of the defendants. He has also invited my attention to the oral evidence of the parties which will be referred if necessary when I deal with the arguments.
(c) That the allegations made in paragraph 1 of the plaint to the effect that the plaintiff is the owner of House No. 3, Footkar Asthan mohalla Loharbagh, in the town of Sitapur, has not been denied in the written statement on behalf of defendants 1 and 2 instead has been admitted, and, as such, the trial court should have decreed the plaintiff's suit for eviction against the defendants and in not doing so the trial court has committed error of law and of jurisdiction. The contention is that it have been admitted that the plaintiff is the owner of the house, the trial court ought to have decreed the suit for possession and should have relied on the admission of plaintiff's title as owner.
9. On behalf of the opposite-parties Shri R.K Sharma vehemently-contested, the contentions made on behalf of the plaintiff-revisionist. He contended that the finding of the court below to the effect that the plaintiff has failed to prove the contract of tenancy between the plaintiff-revisionist and the defendants and the finding recorded by the trial court on the question of contract of tenancy not to have been proved by the plaintiff is a pure finding of fact not liable to be interfered with and same is the position with regard to the question of ownership that plaintiff is not owner of the house in dispute and this court should not interfere with those findings under Section 25 of the Act, and once it is accepted that the plaintiff was neither the lessor or landlord nor any contract of tenency has been proved by the plaintiff to have existed between the plaintiff and the defendants the plaintiff's suit for eviction of the defendant has not been maintainable against the defendant-opposite and so was rightly dismissed irrespective of the fact that the provisions of U.P Act No. XIII of 72 did not apply and for the sake of argument accepting it that the finding of the trial court in regard to the question of application or non-application of the Act to the building in question subsequently and its effect has been wrongly decided because once the suit is not maintainable at the instance of the plaintiff the suit was rightly dismissed. Shri R.K Sharma, with regard to the matter of ownership, submitted that the real facts have not come to the knowledge of defendants-opposite parties regarding title and admissions contained in paragraph 1 of the written statement regarding ownership will not be binding or effective on the defendants on account of the fact that the allegations of paragraph 1 of the plaint and the written statement are not very specific but vague and any admission of a fact not in the personal knowledge of the defendants and which per se appears to be incorrect is not decisive of the matter regarding ownership and plaintiff cannot get the decree for possession on the basis of his claim of title of ownership from the Court of Judge, Small Causes. For seeking relief of possession on the basis of title the plaintiff had to file the suit in the Civil Court as Small Causes Court has no jurisdiction to grant the decree on the basis of title.
10. I have considered the arguments of the learned counsel for the parties and have gone through the entire record of the case. Before proceeding to discuss the merits of the respective contentions it is to be taken note of, that the jurisdiction under Section 25 of the Provincial Small Cause Courts Act is not the same as that of first appeal, it is limited and is confined to the revisional court; examining if the decree or order passed in a case decided by a Court of Small Causes is or was or has been according to law and if it is not according to law then it may call for the record case and pass such orders as it thinks fit. Section 25 of the Provincial Small Cause Courts Act as amended by U.P Act No. 17 of 1966, reads as under:—
“25. Revision of decrees and orders of Small Causes. — The District Judge, for the purpose of satisfying himself that a decree or order made in any case decided by a Court of Small Causes was according to law, may of his own motion, or on the application of an aggrieved party made within thirty days from the date of such decree or order, call for the case and pass such order with respect thereto as he thinks fit.
(B) After the said section in the State of U.P add the following proviso:—
“Provided that in relation to any case decided by a District Judge or Additional District Judge exercising the jurisdiction of a Judge of Small Causes, the power of revision under this section shall vest in the High Court.”
11. The expression “according to law” used in Section 25 of the Provincial Small Cause Courts Act has been subject matter of consideration by Hon'ble Supreme Court. The Hon'ble Supreme Court in the case of Hari Shanker v. Girdhari Lal, AIR 1963 SC 698 and in paragraph 8 thereof their Lordships have observed:—
“The phrase “according to law” refers to the decision as a whole and is not to be equated to error of law or of fact simpliciter. It refers to the overall decision, which must be according for law which it would not be, if there is miscarriage of justice due to a mistake of law. The section is thus framed to confer larger powers than the power to correct error of jurisdiction to which Section 115 is limited.”
12. Their Lordships quoted with approval and their concurrence the observation of Beaumonth, C.J in the case of Beli & Co. Ltd. v. Waman Hamraj, (40 Bom LR 125 : AIR 1938 Bom 223) which observation reads as under:—
“The object of Section 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law. The section does not enumerate the cases in which the Court may interfere in revision, as does Section 115 of the Code of Civil Procedure, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction, or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulder, wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court ought not to interfere merely because it things that possibly the Judge who heard the case may have arrived at a conclusion which the High Court would not have arrived at.”
13. While dealing in the context of Section 20(2) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act which confers revisional power on the High Court which provides:—
“No further appeal shall lie against any decision in appeal under sub-section (1) but the High Court, may, for the purpose of satisfying itself that any such decision in appeal was according to law, call for the case in which such decision was taken and pass such order with respect thereto as it thinks fit.”
14. The Hon'ble Supreme Court in the case of Girdharbhai v. Saiyed Mohmad Mirssaheb Kadri, (1987) 3 SCC 538 : AIR 1987 SC 1782 has observed as under with reference to the expression “according to law”. Their Lordships laid down as under at page 1789:—
“As we read the power, the High Court must ensure that the principles of law have been correctly borne in mind. Secondly, the facts have been properly appreciated and a decision arrived at taking all material and relevant facts in mind. It must be such a decision which no reasonable man could have arrived at. Lastly, such a decision does not lead to a miscarriage of justice. We must however, guard ourselves against permitting in the guise of revision substitution of one view where two views are possible and the Court of Small Causes has taken a particular view. If a possible view has been taken, the High Court would be exceeding its jurisdiction to substitute its own view with that of the courts below because it considers it to be a better view. The fact that the High Court would have taken a different view is wholly irrelevant.”
15. The Hon'ble Supreme Court further reiterated: “That although the High Court had wider power than that which could be exercised under Section 115 of C.P.C yet its revisional power could only be exercised for a limited purpose with a view to satisfying itself that the decision was according to law. The High Court could not substitute its own finding for the one reached by the courts below on a reappraisal of evidence.”
16. This being the state of law that in exercise of power under Section 25 of the Provincial Small Cause Courts Act the revisional court has to examine if overall decision is according to law or not and if it is so satisfied that the overall decision is in accordance with law then it will not interfere with the finding of fact or if there is some error of law and the same does not result in miscarriage of justice then also the High Court will not interfere with the decision of the case. Keeping in view this principle relating to jurisdiction under Section 25, I will examine the contentions raised by the learned counsel for the plaintiff-revisionist. So far as the first contention of Shri Kalia is concerned Shri R.K Sharma appearing for the opposite-parties did not contest the same and farily conceded that in view of the latest pronouncement of the Supreme Court in the case of Ramesh Chandra v. 3rd Addl. District Judge, 1992 LCD 75 : ((1992) 1 SCC 751 : AIR 1992 SC 1106) the settled position is that the law applicable on the date of the institution of the suit alone govern the suit and the mere fact that the statutory period of 10 years expires during the pendency of the suit, appeal or revision does not make the Act applicable to the suit nor does it bar or effect maintainability of the suit. The suit has to be tried and decided without a reference to the provisions of U.P Act XIII of 1972. This has also been the view expressed by the Hon'ble Supreme Court in the case of Nand Kishore Marwah v. Samundri Devi, 1987 (4) SCC 382 : (AIR 1987 SC 2284). In view of the above decision there is substance in the contention of Shri Kalia but the question is whether setting aside this finding on the question of applicability of the Act to the suit will in any manner affect the decision and it depends upon the answer of the question whether it has resulted in miscarriage of justice. Had the trial court found that the suit at the instance of the plaintiff was maintainable and had the trial court found that the contract of tenancy was entered into between the plaintiff and the defendants and would have dismissed the suit simply on the basis of wrong finding that Act became applicable though it did not apply on the date of the institution of the suit, on the completion of 10 years period from the date of construction of the building during the pendency of the suit and that the defendants became entitled to the benefit of Section 39 of the Act and would have been dismissed the suit on this ground, no doubt, there would have been a great force and I would have been inclined to set aside the order of trial court but in the present case the suit had been dismissed primarily on the ground that there has been no contract of tenancy between the plaintiff and the defendants. No contract of tenancy has been established and therefore, it could be said, this erroneous view with regard to issue No. 1 did not render and it cannot be said to have been rendered in a decision resulting in miscarriage of justice. The trial court's finding which has materially affected the decision of the suit i.e maintainability of the suit at the instance of the plaintiff and the finding that the plaintiff has not been entitled to determine the lease as well as has not been entitled to file the suit as he was not the lessor or landlord, so I proceed to consider the next question (out of) two questions raised by the learned counsel for the revisionist-applicant.
17. As regards the finding of the trial court that plaintiff has failed to prove the contract of tenancy between himself and the defendants which is a pure finding of fact which the trial court has been pleased to arrive at a conclusion after considering the evidence on record, oral and circumstantial and it has held that from the evidence on record it is clear, that no contract of tenancy was entered into directly between Anurag Misra, a minor and the defendants. Sudhakar Nath Misra collected the rent and it appears that the house actually belonged to Sudhakar Nath Misra and so still belongs. The plaintiff had only produced Sudhakar Nath Misra and Indu Kumar Misra to prove his case who alleged and deposed that letting was done by plaintiff or his father but considering over all circumstances, the trial court did not accept the case that contract of tenancy was entered into either by Anurag Misra or his father Indu Kumar Misra with the defendants. The trial court also took the view that there is no evidence to prove that the building in dispute belonged to the plaintiff. It took the view that it is something beyond doubt that the house originally belonged to Sudhakar Nath Misra and there is evidence on behalf of the plaintiff that upper portion of the house in suit or the house in suit was transferred by Sudhakar Nath Misra to plaintiff Anurag Misra under any arrangement. This appears to be a finding of fact, pure and simple. Shri S.K Kalia has invited my attention to Paper No. C75 in this connection and to the contents of this papers. I have gone through this Paper No. C75 and the statements of PWs. This document is neither a contract of tenancy nor does it prove or show that the letting was done by the plaintiff. Further, this document contains something different even as regards rate of rent. This document has been denied on behalf of the defendants. In this document, no doubt, an expression is used “I have taken your son's constructed upper portion house on rent of Rs. 225/- per month.” It may be pointed out here that so far as possession and case of the defendants is concerned the defendants' case is that they are tenant of the house in question and the accommodation was let out to the defendants by Sudhakar Nath Misra on rent and the rate of rent was Rs. 225/- per month. The material point for consideration with reference to documents will be the expression “your son's newly constructed upper portion of the house” and this will be dealt with when I deal with the documents i.e plaintiff's counsel's third contention. The trial court had really considered the evidence of PWs 1 and 2 on the question of letting and of the DWs on record and recorded a categorical finding that the letting was done by Sudhakar Nath Misra, the grand-father of the plaintiff and no contract of tenancy was entered into between plaintiff and defendants or between plaintiff's father and the defendants. This is a finding of fact and under Section 25 of the Provincial Small Cause Courts Act, I am not entitled to substitute my own finding in place of the findings arrived at by the trial court in the context of the principles of law laid down by the Supreme Court specifying the limits or jurisdictions under Section 25 of the Provincial Small Cause Courts Act. When the plaintiff is not proved to be the landlord or lessor and when contract of tenancy is not established between the plaintiff and the defendants instead the finding being that Sudhakar Nath Misra had let out the premises in suit to the defendants and he realised the rent, no doubt, Sudhakar Nath Misra could be said and termed to be the lessor or the landlord and not the plaintiff unless and until the plaintiff would have proved any transfer of right and title to the property in accordance with law from Sudhakar Nath Misra, the owner of the property. No such transfer having been proved of interest in the property as owner in favour of the plaintiff from Sudhakar Nath Misra, the lessor, the plaintiff's suit as framed was rightly held not to be maintainable and it was rightly held that the notice determining the lease, the suit at the instance of the plaintiff or his father as natural guardian was illegal and bad.
18. Learned counsel for the revisionist Shri S.K Kalia vehemently argued that in view of the admission of the defendants, of plaintiff's ownership as alleged in paragraph 1 of the plaint vide paragraph 1 of the written statement and the user of expression “your son's newly constructed upper portion of the house,” the plaintiffs suit for possession by eviction of the defendants should have been decreed as the admission is the decisive of the matter. I find no substance in this contention of Shri Kalia for the following reasons. Firstly, the admission to be binding on a person must be very specific and should not be vague and secondly an admission on a question of fact is binding on a party unless it is proved to be contrary or has been successfully withdrawn as has been laid down by the Supreme Court in Nathoo Lal v. Durga Prasad , AIR 1954 SC 355 (Para 14) and Narayan v. Gopal, AIR 1960 SC 100 (Para 11).
19. It is well settled also that an admission of a person is binding if the facts alleged to have been admitted on his personal knowledge and not otherwise. The question relating to ownership is generally a mixed question of law and fact. A person may be owner of property having acquired himself or in other case by transfer of property from the real owner. A person may acquire title by inheritance and the like. Ownership is a mixed question of law and fact and until and unless the plaintiff has alleged his mode of acquisition of property in dispute specifically as to how he acquired the property in the plaint vague allegations about ownership cannot be deemed to have been admitted by the other side. Secondly in the present case the material on record produced on behalf of the plaintiff-revisionist per se shows and proves that the admission contained in Paper No. C75 and in paragraph 1 of the written statement admitting the first portion of paragraph 1 of the plaint is erroneous. The document on record which per se shows the alleged admission was wrong or erroneous which may be indicated hereinafter. Exhibit 9 on record is the application moved by Sudhakar Nath Misra for permission to raise the construction of the upper portion of the house which was moved on 9-3-72. In this application Sudhakar Nath Misra, the grand-father of the plaintiff has stated that in his house situate in Footkar Asthan Mohalla Lohar Bagh, Sitapur he wants to construct two rooms on upper portion and so he is filing proposed plan for being sanctioned. In this document he has described the house in dispute as one belonging to him and this document per se shows that the house in which the accommodation in dispute is situate did belong to Sudhakar Nath Misra. The proposed site plan Exts. 10 and 12 also described the building as house of Sudhakar Nath Misra. The electricity bills also are in the name of Sudhakar Nath Misral PW 2 Indu Kumar Misra in the course of his deposition described the two parts of the house and has stated that MAKAN AB BHI INCOMPLETE HAI. NEECHE KA 55 KA AUR UPAR KA 73 KA BANA HAI. UPAR KA PORTION SEPARATE HAI. In the course of cross-examination PW 2 has stated SAN 55 WALI BUILDING KAB ASSESS HUEE MERE PITA BATA SAKTE HAIN. This statement of PW2 per se shows that house situated in Footkar Asthan Mohalla Lohar Bagh, Sitapur and its lower portion had been constructed in 1955 while addition in that house was made in 1973. The entire building is one though there may be separate tenements. This shows that this building had been constructed in or about 1955 while the plaintiff was not in existence even as per plaint allegation on 26-4-77. On the date of the filing of the suit his age has been shown to be 17 years which indicates that plaintiff was not born even at the time the house or ground floor portion of the house had been constructed and this statement of PW 2 coupled with Exts. 9, 10 and 12 per se show that the learned Small Causes Court rightly held that house appears to be belonging to Sudhakar Nath Misra and still continues to be so as there is no evidence or allegation or proof that the said building was transferred by Sudhakar Nath Misra in favour of the plaintiff and the evidence on record in any case per se shows and proves that the admission made by the defendants-opposite parties has been incorrect and wrong, and, as such the alleged admission either contained in paragraph 1 of the written statement in the context of paragraph 1 of the plaint or in Paper No. C75 are of no value as I have mentioned earlier that it is the well settled principle of law that the admission of a party is the best piece of evidence against the party making admission unless and until it is shown to be wrong or erroneous or until and unless it has been withdrawn. The evidence of PW2 and the documents referred to by me on record per se show that the admission on behalf of opposite-parties is incorrect and erroneous. The opposite-parties have explained that they mentioned what Sudhakar Nath Misra wanted them to write in Paper No. C75 they did write. Thus, the admission stands explained from the evidence on record and cannot be made use of against the defendants in view of the above documentary evidence. It may be further pointed out that Small Cause Courts could not grant decree for eviction if the suit would have been based on title.
20. Thus considering, I am of the opinion that the decision of the court below neither suffers from any error of law or illegality resulting in miscarriage of justice and really the case has been decided by the courts below in accordance with law. The trial court's decision does not suffer from any error of law and illegality of substantial nature or of jurisdiction and the judgment and decree passed by the learned Additional District Judges does not call for any interference. The revision is hereby dismissed with costs.
21. Petition dismissed.