Limited interference in findings of fact and reliance on documentary and oral evidence to establish ownership and default in payment of rent.

Vivek Kumar Birla, J.

No one is present on behalf of the petitioner even in the revised call of supplementary fresh cases. Thrice on the request of learned counsel for the petitioner, the matter was deferred but today he is not present.

2. The present petition has been filed challenging the order dated 27.4.2015 passed by the Court of Additional Judge Small Causes Court No. 2, Kanpur Nagar in SCC Suit No. 267 of 2011 (Ashad Ullah Khan v. Smt. Bano) as well as impugned order dated 26.7.2017 passed by Additional District Judge, Court No. 15, Kanpur Nagar in Small Causes Revision No. 63 of 2015 (Smt. Bano v. Ashad Ullah Khan).

3. Facts of the case, in brief, are that a SCC suit was filed by one Ashad Ullah Khan (now dead) against the tenant (petitioner herein) for rent and eviction on the ground that the house no. 95/91 Ameenganj, Talaqmahal, Kanpur Nagar was purchased by him from earlier owner vide registered sale dated 25.3.2010 and the defendant is tenant of one quarter no. 97, which has been constructed over 35.95 sq. meter, which is a khapral shed, at the rate of Rs. 100/- per month. It was alleged that the defendant has not paid rent since 21.12.1985 to its earlier landlord also and after the house has been purchased by the plaintiff, she is not paying any rent. A notice dated 28.9.2010 was sent to the defendant but she refused to accept the same and despite of the notice no rent was paid and therefore, the suit for rent and eviction was filed claiming rent from 14.11.2008 to 28.10.2011 and the balance rent being time barred and as such, the same was not claimed. The suit was contested by the defendant by filing a written statement claiming that initially the owner of the property in question was one Hind Estate and at present Kanpur Development Authority (KDA) is the owner and the purchase of the property by the present landlord was also disputed on the ground that as after 1981-82 the Hind Estate has been declared as a 'Malin Basti' and therefore, no property can be purchased or sold in this basti and therefore, the sale deed executed in favour of the plaintiff is illegal and has no legal force and therefore, the present landlord cannot claim himself to be the landlord of the property in question and as such, suit itself is not maintainable and therefore, no relief for her eviction can be granted.

4. It was claimed that earlier also the rent was paid to the landlord and earlier owner was paid rent in cash upto 2010 and that since several landlords have changed, therefore, she is going to undertake proceedings under Section 30(2) of the UP Act 13 of 1972 and as such, she is not a defaulter and suit is liable to be dismissed. The plaintiff in support of his case filed copy of registered notice, tax assessment order, original sale deed and the plaintiff appeared as PW 1. In documentary evidence, the defendant filed photocopy of identity card, ration card, letter issued by the KDA, a gazette issued by the Government and several other letters and as defendant DW 1 affidavit of Smt. Bano she however, never came forward for cross examination.

5. Six issues were framed by the trial Court. Regarding issue no. 1 as to whether there exists landlord and tenant relationship, the same was found to be established and it was found that the defendant has not produced any evidence to indicate that the KDA is the owner of the property or that it has been declared as 'malin basti'. The photostat copies filed by the defendant were rejected as they were not admissible in evidence. It was found that on the basis of the registered sale deed executed in favour of the landlord, owner on the house was registered by the Nagar Ayukt in municipal record and therefore, it was found that there is relationship of tenant and landlord between the parties. On the issue of notice, it was found that the notice was a valid notice as the same has returned with the endorsement of refusal. On issue no. 3 regarding rate of rent, the defendant never came forwa