JUDGMENT
J.C. Gupta, J.
1. This is landlord’s petition.
2. The dispute relates to premises No. 5-A Elgin Road, Allahabad which is a part of premises No. 5 Elgin Road. Allahabad. The petitioner is the landlord of the same wherein respondent No. 3 is a tenant at the rate of 21.25 paise per month. Suit for ejectment and for recovery of arrears of rent and damages was filed by the petitioner against the tenant respondent No. 3 on Small Cause Court side, inter alia, on the grounds that the tenant committed default in payment of rent, that the tenant and its Chaukidar will fully cause substantial damage to the tenanted building thereby diminishing its value and utility and causing its disfiguration ; that the tenant has sublet the tenanted accommodation without the consent of the landlord ; that the tenanted accommodation was being used by the tenant for the purpose other than for which the same was let out and that the petitioner has denied the title of the landlord and has renounced his character as tenant.
3. Suit was contested by the defendant respondent No. 3 and the plaint allegations were denied.
4. In support of his case plaintiff examined himself as P.W. 1 and produced Sri Ratnakar Chaudhary as P.W. 2 Plaintiff also filed a number of documents. From the side of the tenant. Dr. Atul Kumar and Ram Nath were examined as D.W. 1 and D.W. 2 respectively.
5. The trial court decided the issues of default in payment of rent, subletting, material alteration and denial of title against the petitioner landlord. However, plaintiffs suit for ejectment was decreed on the ground of inconsistent user on a finding that the tenanted accommodation was let out only for library and office purpose but the tenant has used the same for inconsistent purpose as such he was liable to eviction under Section 20 (2) (d) of the U. P. Act No. XI11 of 1972. (hereinafter referred to as the Act). Aggrieved by the decree of the trial court, the respondent No. 3 filed S.C.C. Revision No. 140 of 1996 while the petitioner landlord filed Revision No. 187 of 1996 challenging the decision of the trial court on the issue of default, subletting, material alteration, denial of title. The revisional court by the judgment dated 23.9.1996 allowed the revision filed by the defendant-respondent and dismissed the one filed by the petitioner-landlord and accordingly petitioner’s suit has been dismissed. Aggrieved by the same, the landlord petitioner has come up before this Court in this writ petition.
6. Learned counsel for the petitioner Shri K. M. Dayal and learned counsel for the respondent Shri B. D. Mandhyan were heard at a considerable length.
7. Shri K. M. Dayal, learned counsel appearing for the petitioner landlord in the course of his arguments attacked the findings of the trial court recorded on issues in respect of default in payment of rent, substantial damage, material alteration, subletting and denial of title. He further vehemently challenged the order of the revisional
court whereby the finding of the trial court recorded on the issue of inconsistent user has been reversed. On the other hand. Shri B. D. Mandhyan, learned counsel for the respondent has supported the judgment of the revislonal court whereby the plaintiffs suit has been dismissed. It would be appropriate take up each relevant issue separately.
Default in payment of rent
8. The plaintiff in his pleadings alleged that the defendant tenant was habitual defaulter and a bad pay master and rent since February. 1983. was not paid despite repeated demands and service of registered notice dated 10.1.1985. This allegation was specifically denied by the tenant. On appraisal of evidence, the trial court recorded a finding of fact that the last notice of demand was sent on 9,3.1987 whereas rent from February, 1983 to October. 1S83 stood deposited under Section 30 (1) of the Act hence, no rent was due when the notice of demand was served. The trial court further found that since the defendant tenant had made requisite deposit of rent under Section 20 (4) of the Act before the date of first hearing, he was entitled to claim the benefit of the said provisions and no decree for ejectment could be passed on the ground of default. Challenging the finding of the Court below on this issue, Shri K.M, Dayal, learned senior counsel appearing for the petitioner submitted that the proviso to Section 20 (4) of the Act was attracted to the facts of the present case and, therefore, the Courts below have erred in extending benefit of the provisions of Section 20 (4) of the Act to the tenant inasmuch as the tenant has built another building in the same city of Allahabad. In order to appreciate his argument of learned counsel, it is necessary to look into the said proviso which runs as under :
“Provided that nothing in this sub-section shall apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant
state, or has got vacated after acquisition, any residential building in the same city, municipality, notified area or town area.”
9. A plain reading of the above proviso would indicate that benefit of the provisions of Section 20 (4) of the Act cannot be extended in relation to a tenant, who or any member of his family has built or has otherwise acquired in a vacant state or has got vacated after acquisition any residential building in the same city Municipality, etc. in other words, if a tenant or any member of his family has built or acquired in a vacant state any residential building in the same city, he would not be entitled to the protection against his eviction guaranteed under sub-section (4) of Section 20 of the Act. The Legislature with some intent and purpose has used the words “residential building” in the aforesaid proviso. Had the intention been to make the said proviso applicable to acquisition of every ‘building’, the word ‘building’ would have sufficed and there was no need to incorporate the word ‘residential’ before the word ‘building’. It is thus obvious that if the building acquired by the tenant is not a residential building, the proviso will have no application and the benefit of Section 20 (4) of the Act cannot be denied to a tenant who is otherwise entitled thereto.
10. In the present case even as per the plaintiffs own allegation, the tenanted accommodation was let out -for library and office purposes and not for residential purpose. There is also a concurrent finding of fact of the Courts below that a sum of Rs. 7.000 stood deposited by the tenant unconditionally prior to the date of first hearing which amount was much more than the amount required to be deposited under different counts in compliance of the provisions of Section 20 (4) of the Act and since proviso to Section 20 (4) of the Act had no applicability to the facts of the case, benefit of deposit made under Section 20 (4) of the Act could not be refused to the tenant. The view taken by the Courts below is well supported by the evidence on record.
As per the plaintiffs case, Shri M. L. Ahuja has given some land on 29. Stanley Road, Allahabad to the tenant for the purpose of construction of hospital. The revisional court has further found that no building was in existence on the piece of land. Assuming for the sake of argument that the tenant has acquired a building in property No. 29. Stanley Road, by no stretch of imagination, it could be said that the said property is a residential building so as to attract the proviso aforesaid.
11. Learned counsel for the petitioner, however, relying upon a decision of Calcutta High Court in the case of Saroj Kumar De and others v. Smt. Radha Rani Shah, 1983 (2) RCC 185, argued that residential building in relation to a company would also include the premises where the company carries on its business. In the aforesaid case, clause (a) of subsection (1) of Section 3 of the West Bengal Premises Tenancy Act came up for interpretation before the Division Bench and it was in this context that their Lordships expressed their opinion that the words “residing in the premises’ have been used in the section in a wide sense and the said section would apply to all premises let out for residential and other purposes subject to exclusions mentioned in Section 3 of the said Act. The expression ‘tenant’ or ‘sub-tenant’ includes both, inter alia, natural persons and juristic person. It was on the basis of particular provisions of the aforesaid Act that it was held that it would not be correct to construe the expression ‘residing’ in the narrow sense of the place wherein an individual eats, and sleeps. The word residing in the context denotes (i) actual or physical habitation and occupation of the premises or any part thereof, and (ii) the intention to remain there permanently and not casually. Therefore, in relation to a limited Company, it would mean the place where it carries on its business. The interpretation given to the aforesaid expression, however, cannot be applied to the facts of the present case and/or to the provisions of the U. P. Rent Control Act. Under
the U. P. Act the word ‘building’ has been defined under Section 3 (i) of the Act to mean a residential or non-residential roofed structure and includes (i) any land (including any garden, garages and out-houses appurtenant to such building : (ii) any furniture supplied by the landlord for use in such building : (iii) any fittings and fixtures affixed to such building for the more beneficial enjoyment thereof. It is thus clear from the above definition that the word ‘building’ includes both the residential and non-residential roofed structures or in other words two separate categories of roofed structures are included within the definition of the word ‘building’. The embargo put on the right of a tenant to claim benefit under Section 20 (4) of the Act, has been intended to apply only to residential roofed structures to the exclusion of the non-residential roofed structures. The property which is alleged to have been acquired by the tenant in the present case cannot be classified as a residential roofed structure as the same was being used for office purpose and it cannot be covered under the expression residential building in the context in which the said expression has been used in the aforesaid proviso under the Act. This Court, therefore, does not find any merit in the submission of the learned counsel for the petitioner and the finding of the Courts below require no interference.
Substantial Damage
12. The decree of eviction was also sought on the ground that the tenant wilfully caused substantial damage to the building and without permission of the landlord, has made certain constructions and structural alternation as were likely to diminish the value or the utility of the building in question or to disfigure the same. This issue has been decided against the petitioner by the trial court and the finding of fact recorded has been upheld by the revisional court. In the absence of any specific pleadings in the plaint so as to attract the provisions of Section 20 (2) (c), this Court finds no sufficient ground to interfere with the concurrent findings of fact recorded by the Courts below
in this issue and the findings are upheld.
Denial of Title
13. The decree of eviction was also claimed by the landlord on the ground that the tenant has denied the title of the landlord and has also renounced his character as such. Bar of institution of suit for eviction of tenant created by sub-section (1) of Section 20 of the Act gets removed under clause (f) of sub-section (2) of Section 20 of the Act where the tenant has renounced his character as such or denied the title of the landlord, and later has not waived his right of re-entry or condoned the conduct of the tenant. In order to succeed under the aforesaid clause, it is not only necessary for the landlord to prove that the tenant has denied the title of the landlord but it is also further necessary to allege and prove that the landlord has not waived his right of re-entry or condoned the conduct of the tenant. A Division Bench of this Court in the case of Hashmat Hussain v. Sagir Ahmad, AIR 1958 All 847, while dealing with the provision of Section 3 (g) of the U. P. Act No. 3 of 1947 which provision was analogous to clause (f) of Section 20 (2) of the Act, held that the expression setting up title in third person in Section 111 (g) (2) of the Transfer of Property Act does not mean setting up full title in third person or asserting that the landlord had no title to the property at all. The same view was reiterated by another Division Bench in the case of Narain Das v. Jawahar Lal, 1982 AWC 744.
14. In Ram Autar Goel v. Jagannath Gupta and others, 1997 (2) ARC 286, while interpreting Section 20 (2) of the Act it was observed by this Court as under :
“On the question of denial of title reference may be made to Section 20 (2) (f) of the U. P. Act No. XIII of 1972. This sub-section required that a suit for eviction of tenant could be instituted on the ground that the tenant has renounced his character as such or had denied the title of the landlord and the latter had not waived his
right of re-entry or condone the conduct of the tenant. It was urged on behalf of the present petitioner that when it was a suit for eviction on the ground as mentioned in Section 20 (2) (f), all its ingredients should have been pleaded. Undoubtedly, there was no pleadings of absence of condonation of conduct of the tenant. On this point the learned counsel took me through several case laws.
The dictum of the Supreme Court suggests that if not in form. the plea should be there in substance. A sound reading of Section 20 (2) indicates that a suit for eviction of a tenant from a building after determination of tenancy may be instituted on any one or more of the grounds as _ enumerated thereunder. The section requires that the suit be based on any one of these grounds. The only inference is that the ground as required thereunder must be pleaded as the opening lines of Section 20 clearly bar any suit save as provided in sub-section (2). The condition as enumerated in Section 20 (2) (f) speaks of a positive assertion of the renouncement of character as such by the tenant and denial of the title of the landlord and also of a negative assertion that the landlord had not waived his right of re-entry and has not condoned the conduct of the tenant. The landlord instituted the suit with the knowledge if he had waived the right of re-entry or had condoned the conduct of the tenant. The landlord instituted the suit with the knowledge if he had waived the right of re-entry or had condoned the conduct of the tenant and it was therefore, necessary for him to indicate in the plaint that he had neither waived such right nor had condoned such conduct of the tenant.
Further reliance was placed on. decision of the Supreme Court in the case of Udhav Singh v. Madhav Rao Scindia. AIR 1976 SC 744, to say that in construing a pleading it is to be read as a whole. The
intention of the party concerned is to be gathered primarily, from the tenor and terms of his pleading takes as a whole. This may not. however, be interpreted to mean that even a legal requirement may not be pleaded and still a right upon that ground could be enforced.”
15. The revisionat court has dealt with the issue of denial of title very elaborately and on examination of facts and circumstances and the material appearing on record, it has been held that the plea of denial of title on the part of the defendant tenant has not been established and the finding recorded by the trial court did not require any interference and the same has been held to be according to law. In the present case, it is also noteworthy that there was no pleading or any reliable evidence to indicate that the landlord has not waived his right of re-entry or has not condoned the, conduct of the tenant. This Court in exercise of its power under Article 226 of the Constitution of India does not find any sufficient ground to make interference in the finding recorded by the Courts below on the above issue of denial of title.
Sub-Letting
16. The ground of sub-letting was based on the pleading that the tenant has sublet a portion of the disputed accommodation by allowing its Chaukidar–Ram Nath to reside therein and the Chaukidar in his turn has illegally allowed his brother and his family members to stay in the accommodation. It was also averred that the said Chaukidar also allowed certain rickshaw pullers to stay in night in the said accommodation on payment of charges. The trial court after scanning the evidence on the issue of sub-letting recorded a clear finding of fact that the ground of subletting has not been established. It could not be denied that the burden of proving sub-letting laid on the landlord. The revisional court did not find any infirmity or illegality in the said finding. Learned counsel for the petitioner before this Court could not point out any legal defect in the said
finding of fact and. therefore, the said finding is also upheld.
17. The main thrust of argument of learned counsel for the petitioner has been on this issue. It was vehemently argued by the learned counsel for the petitioner that on the above issue, the trial court recorded a finding of fact in favour of the landlord holding that in the absence of specific denial by the tenant, it was established that the building in question was let out to the tenant only for library and office purposes and for holding meetings of the Association whereas the tenant has used the same for a purpose other than for which the same was let out and since the said finding was based on appraisal of evidence, it was not open for the revisional court to set aside the same and substitute that by Its own finding of fact. It was further contended on behalf, of the petitioner that the revisional court while deciding the said issue under point No- 5 has made out altogether a new case in favour of the tenant which was never pleaded and. therefore, the revisional court has committed a manifest error of law in reversing the finding of fact recorded by the trial court. On the other hand, Shri B. D. Mandhyan, learned counsel for the defendant-respondent supported the order of the revisional court contending that as per the case of the parties, the building in question was let out for office purpose and this dominant purpose was never given up and the mere fact that Judo Karate Centre and workshop activities were held, that would not convert the user of the building to purpose other than the one for which the building was let out within the meaning of Section 20 (2) (d) of the Act.
18. It is well-established law that powers of Court while hearing a revision under Section 25 of the Small Cause Courts Act are only supervisory and limited and the Court while exercising such powers cannot assume the function of a Court of appeal. It has no power to examine and scrutinise the evidence meticulously to decide whether finding of fact arrived at by the Courts
below is justified by the evidence on record or not. Though it is open to the revisional court to make interference with the decision of the trial court in case the same is not found to be according to law, yet it is not open to it to substitute its own finding with regard to the question of fact already determined by the trial court. If the revisional court finds that interference is necessary, the revisional court should not go into an issue for the first time and at any rate decide that issue of fact for itself. The revlslonal court can ignore the finding of fact recorded by the trial court and record its own finding of fact only where the finding of the trial court is based on no evidence or in other words, there is absolutely no evidence on record to sustain a particular finding of fact or where the finding of the trial court is solely based on inadmissible evidence or where the finding is perverse in the sense that no reasonable minded person would have ever reached at the conclusion arrived at by the Court below. The reyfsional court can also make interference in the finding of fact recorded by the trial court if the same is based on misreading of evidence or on conjectures and surmises or finding suffers from the defect of non-consideration of vital and material evidence or is based on consideration of irrelevant and extraneous matter. Where the revisional court finds that a particular finding suffers from an error of law, it has the power to pass such orders as the justice of the case requires but it has no jurisdiction to reappraise or reassess the evidence to determine an issue of fact for itself. The appropriate course in such circumstances is to send the case back to trial court for a fresh decision after laying down appropriate guidelines. For this proposition, a reference may be made to the decision Kailash Chandra and another v. IIIrd Additional District Judge and others, 1999 (1) AWC 302.
19. In the present case on the basis of evidence on record and in the absence of specific denial by the tenant, it is fully established that the building in question was let out to the tenant only for library and office
purpose and for holding meetings of the Association and this finding of fact has not been assailed on behalf of the respondent either before, the revisional court or before this Court. Arun Kumar D.W. 1 also admitted in his statement that the building was let out for the aforesaid purpose. The trial court while recording finding of fact in favour of the petitioner made a reference to the statement of plaintiff and his witness Shri Ratnakar Chaudhary wherein they stated that the defendant without prior permission of the plaintiff opened Judo Karate Centre, clinic for disabled persons and Training Centre for Tailoring, Stitching, Embroidery, etc. it was in plaintiffs evidence that by opening these centres and clinic, the lawns, plants, flowers, etc. of the plaintiffs premises were damaged by the nefarious activities of the participants and, therefore, according to the trial court, it was established that the building in question has been used by the tenant for a purpose other than for which the same was let out. The trial court, however, did not accept the plaintiffs plea that the building was being used for residential purpose by the Chaukidar of the tenant in his own independent right. The revisional court has. however, set aside the finding of the trial court recorded on. the issue of inconsistent user and substituted its own finding that the defendant tenant has throughout been using the tenanted accommodation for maintenance of its office, library and for holding periodical meetings of the Association and in its opinion. its dominant purpose was never given up. The revisional court proceeded to observe that the incidental casual activities undertaken by the Association on particular occasion of National importance and to implement certain National programmes without embarking upon a commercial venture would not come within the ambit of provisions of Section 20 (2) (d) of the Act.
20. Learned counsel for the petitioner with all vehemence at his command argued that while recording finding on the issue of inconsistent user, the trial court discussed that
part of the plaintiffs evidence which was to the effect that on account of the activities which were carried out by the tenant and their members, nuisance was created and damage was caused to the lawns, plants, flower beds, trees, etc. of the plaintiff, the revisional court was not justified in law in reversing this finding of fact of the trial court and substituting its own finding without making any reference to the aforesaid piece of evidence. It was argued that while recording its own finding of fact, contrary from the one recorded by the trial court, the lower revisional court did not examine the trial court’s finding critically as also the evidence and material relied upon by the trial court and it appears (hat the lower revisional court was swayed away sentimentaliy by a portion of the statement of the Chaukidar that the Judo Karate activities were undertaken only for 2 to 4 days and while recording a cryptic finding that the activities undertaken by the Association were only incidental and casual, the lower revisional court completely overlooked the evidence adduced from the plaintiffs Side that such activities continued for about 2 years. If the activities had continued for such a long period, they could not be termed as casual. In order to appreciate the rival contention of the parties’ counsel, it may be appropriate to refer to the relevant provisions of law and pleading of the parties.
21. Section 20 (2) (d)of the Act provides that a suit for eviction of a tenant from a building after the determination of his tenancy may be instituted where the tenant has without the consent in writing of the landlord used it for a purpose other than the purpose for which he was admitted to the tenancy of the building or otherwise has done any act which is inconsistent with such use. or has been convicted under any law for the time being in force of an offence of using the building or allowing it to be used for illegal or immoral purposes.
22. A plain reading of the above provision leaves no room of doubt
that the tenant makes himself liable for eviction if he uses the tenanted building for the purpose other than the one for which he was admitted to the building and/or has otherwise done any act which is inconsistent with such use. It would not be correct to hold that the said clause will be attracted only where a building let out for residential purpose is used for non-residential purpose or vice versa. The Legislature in its wisdom and with some intent and object has used the word ‘purpose’ in the aforesaid clause (d). Therefore, to say that the said clause will apply only to a case where the residential purpose is changed to commercial purpose or vice versa will not be a correct proposition of law and would be contrary to the spirit of the language used in the aforesaid clause. It would thus follow that where a building is let out for residential purpose, even then the tenant may still make himself liable for eviction, if he does any act therein, i.e., in the tenanted building, which is inconsistent with such use though the residential nature of the building may not be changed. Similarly where a building is let out for a non-residential purpose, the tenant may be liable to eviction if he does any act which is inconsistent with such use though he continues to use the building for non-residential purpose. The answer to the question whether the tenant is guilty of “inconsistent user’ within the meaning of clause (d) aforesaid will depend upon the facts and circumstances of each case and no hard and fast formula can be laid down in this regard. Under the general law of Transfer of Property Act. the legal obligation on the tenant is that he must use the demised premises as a person of ordinary prudence would use the same. If he uses the tenanted accommodation in a manner which is likely to affect adversely and substantially the landlord’s interest therein or where interest of the landlord is prejudiced by the user of the building by the tenant by his acts or omissions, it will be a case of inconsistent user. It is also well established law that a small change in the user as long as interest of the
landlord is not affected will not amount to inconsistent user. In the case of Mohan Lal v. Jai Bagwan, AIR 1998 SC 1034, which has been relied upon the respondent’s counsel, the tenanted shop was let out for carrying on business of English liquor Vend but the tenant changed over to General Mercantlle’s business. It was held that it was not a case of inconsistent user. In that case, reference was also made to an earlier decision of the Supreme Court in the case of Maharaj Kishan Kesar v. Mikha Singh. 1966 Cur LJ 213 (SC), wherein it was held that where the building was rented for purpose of carrying on a business, using it for another business would not in any way impair the utility or damage the building and the business could be conveniently carried on in the said premises and that there was no nuisance created and, therefore, the tenant would not be liable to eviction on that ground. In the case of Mohan (supra), the shop was let out to the tenant “for carrying on business of English liquor Vend, however, the tenant changed over to the business of Mercantile and on the facts of that case, it was found that the change in the nature of business did not cause any mischief or detriment or impairment of the tenanted shop and in one sense, it could be called an allied business in the expanding concept of departmental stores. Most of the cases relied upon by the respondent’s counsel deal with the situation where only nature of business was changed without causing any mischief or adversely and substantially affecting the landlord’s interest therein. If we go through the language of Section 20 (2) of the Act, it will be found that while enacting the said provisions, the State Legislature has made actionable not only the use of the building for a purpose other than the purpose for which the tenant was admitted to the building but also any act done by the tenant which is inconsistent with the use for which the building was let out. In the Full Bench decision of the Punjab and Haryana High Court in the case of Desh Raj v. Shyam Lal. AIR 1980 P&H 229, the question for
consideration was as to whether
when the lease was for the purpose of
shop without anything more specific,
user thereof as a godown amounted to
change of user. In the course of
discussion, the Full Bench made a
reference to the decision of the Apex
Court in Moti Ram v. State of Madhya
Pradesh. AIR 1978 SC 1594, and came
to the conclusion that when the
letting out purpose was location of a
shop and it was exclusively used as a
godown, it amounted to a change of
user. In the present provisions with
which we are faced, the restriction
provided therein is obviously to
protect the interest of the landlord
and is intended to restrict the use of
the landlord’s premises taken by the
tenant under lease. It is akin to the
provision contained in clause (o) of
Section 108 of the Transfer of
Property Act dealing with the
obligation of a lessee. That clause
provides that the lessee may use the
property and its produce, if any. as a
person of ordinary prudence would
use the same. if it were of his own,
but he must not use or permit
another to use the property for a
purpose other than that for which it
was leased. Under the provisions of
the U. P. Act even while using the
demised premises, the tenant does
any act which is inconsistent use for
which the building was let out, it
would be case of ‘inconsistent user’
and would confer a right on the
landlord to get the tenant evicted
under the ordinary law and the
restriction imposed by Section 20 (1)
of the Act would get removed.
23. In the backdrop of the above principles and on examination of the facts of the present case, it may be found that the landlord petitioner in paragraph 5 of the plaint alleged that on 5.12.1985, Dr. O. P. Bajaj, the then President of the defendant Association, Dr. M.S. Verma and one more doctor came to the residence of the plaintiff with the proposal to sell the premises under the tenancy of the defendant or to get the rent enhanced for which the plaintiff did not agree as such to harass the plaintiff, the defendant from 6.12.1985 started uncalled for activities which were inconsistent
with the purpose for which the accommodation in question was let out. On protest of the plaintiff, the defendant did not pay any heed nor stopped the nuisance. The premises under the tenancy of the defendant was let out and used for weekly meetings of the Association and for housing of the office and library. To the detriment of the plaintiffs interest, the tenant started a Judo Karate Centre, a clinic for disabled persons and Training Centre for Silai. Kadhai. Bunai, Kursi Bunai, Typing and Candle making in the premises and displayed a sign board also for the aforesaid purposes. The enrolled members of the Judo Training Centre also started committing nuisance and damaged theproperty and trees of the plaintiff. They started entering into the lawns of the plaintiffs premises and also damaged fruit crops causing loss and substantial damage to the plaintiff. Therefore, according to the plaintiffs allegation, the activities undertaken by the defendant Association and by their enrolled members were prejudicial to the interest of the landlord and adversely and substantially affected his interest inasmuch as continuous nuisance was created in the demised premises as well as in the adjoining premises which was in the occupation of the landlord himself. The defendant tenant in the written statement denied the plaint allegations and it was pleaded that on 25.10.1985 there was the installation ceremony and at that time. Dr. Bajaj was the President. The said ceremony was presided over by the then S.S.P. Allahabad and only on that day, a sign board was fixed for Judo Karate Centre and other social activities but no more activities took place after that day. It was further stated that it was proposed to start a dispensary for disabled and poor persons but that could not be started. It is thus clear that the parties were at issue whether or not the activities as alleged by the plaintiff were in fact done by the tenant in the demised premises and whether the said activities continued only for a day or they continued for a considerable period and whether on account of such activities the interest
of the landlord was in any way affected? The answer to the issue whether the tenant was guilty of inconsistent user on account of such activities largely depended on the findings on the above questions. If in the tenanted building, certain activities were undertaken by or on behalf of the tenant for a considerable period creating nuisance and causing damage to the other part of the premises of the plaintiff in which he himself resides and thereby affected adversely and substantially the landlord’s interest therein, such activities would certainly amount to inconsistent user within the meaning of clause (d) of sub-section (2) of Section 20 of the Act. The plaintiff came up with a definite case that the tenant from 6.12.1985 started uncalled for activities which were inconsistent with the purpose for which the building in question was let out. The nature of those activities has also been specified by the plaintiff in the plaint as already above. It has also been pointed out “by the petitioner’s counsel that in support of the said pleading, the plaintiff examined himself as P.W. 1 and also produced Shri Ratnakar Choudhary as P.W. 2 and the said evidence has also been referred to in the Judgment of the trial court. From the side of the defendant, the person concerned was not examined in witness box and only the Chaukidar was produced to state about those activities. Dr. Bajaj who was produced as D.W. 1 pleaded ignorance of any such activities and his statement was of no relevance as far as the above issue was concerned. The trial court decided the issue of inconsistent user in favour of the plaintiff petitioner without recording any finding as to for how much period the so-called activities were undertaken by the tenant and whether such activities were only casual or incidental and whether they were prejudicial to the interest of the landlord. The revisional court while reversing the said finding of the trial court substituted its own finding of fact by observing.
“Such incidental and casual activities undertaken by the Association on particular occasion of
National importance and to implement certain National programme without embarking upon a commercial venture would not come within the ambit of provisions of Section 20 (2) (d) of the Act.”
24. The revisional court while arriving at the said finding has not taken into consideration at all the evidence adduced on behalf of the plaintiff which was to the effect that the activities undertaken by the defendant tenant were continued for a period for about 2 years and they also created nuisance and adversely and substantially affected the landlord’s interest. The above finding of the revisional court that such activities were only casual and incidental is based wholly on part of the statement of Chaukidar D.W, 1 without consideration of vital and material piece of evidence adduced from petitioner’s side, therefore, that finding cannot be upheld and is vitiated. As already pointed out above, the trial court also did not address itself to the real matter in controversy in its right perspective inasmuch as it was incumbent for the trial court also to have recorded a clear finding of fact as to whether the defendant’s activities as alleged by the plaintiff were only for a day or two or such activities continued for a considerable period thereby causing nuisance in the plaintiffs premises and whether there has been any damage to trees, plants, lawns, etc, of the plaintiff on account of such activities as alleged by the plaintiff and thereby the plaintiffs interest was in any way prejudiced or adversely and substantially affected. Without answering all these questions, a legal finding on the issue of inconsistent user could not be arrived at either way. It is well established that if requisite legal findings are not recorded, the judgment gets vitiated. In the present case, if the revisional court was of the opinion that the conclusion of the trial court on the issue of inconsistent user lacked requisite finding of fact, the revisional court should have remanded the case to the trial court for recording specific finding on those points as per its
direction instead of taking upon itself the task of appraisal of evidence and the revisional court misdirected itself in substituting its own finding of fact on the issue of inconsistent user and that too even without at all adverting to the evidence adduced on behalf of the plaintiff. In this view of the matter, neither the decision of the revisional court nor of the trial court on the issue of inconsistent user can be sustained.
25. For the reasons stated above, the judgment of the lower revisional court on point No. 5 with regard to the issue of inconsistent user as well of the trial court on the issue No. 3 cannot be sustained.. In the circumstances, this petition is allowed in part, while upholding the finding of the Courts below on all other issues, the judgment of both the Courts below are set aside as far as they relate to the issue of inconsistent user and the case is sent back to the trial court for a fresh decision on issue No. 3 regarding inconsistent user, in accordance with law and in the light of observations made above in the body of this judgment.
26. Since these proceedings
arise out of eviction suit filed in the
year 1988, the trial court is directed
to decide the case expeditiously in
accordance with law and in the light
of observations made above. In the
peculiar circumstances of the case,
parties are directed to bear their own
costs.
