Daya Shankar ............Revisionist v. Satish

Judgment

1. Instant revision has been preferred by the revisionist against the judgment and order dated 22.02.2021 passed by the IVth Additional

District Judge, Dehradun in SCC Suit No. 39/2011, Shri Satish vs. Shri Daya Shankar whereby the SCC suit filed by the respondent/plaintiff for ejectment and arrears of rent was decreed. Being aggrieved with the order the instant revision has been preferred.

2. Brief facts of the present case are that the respondent / plaintiff instituted a SCC suit bearing SCC Suit No. 39 of 2011 before the Judge, Small Cause Court for seeking ejectment and arrears of rent against the defendant /revisionist and in para-1 of the plaint specific averment has been made that father of the defendant/revisionist namely Hari Prasad was tenant on the shops on monthly rent of Rs. 2,000/- situated in Moti Bazar, Dehradun. It is also contended in para-1 that the father of the defendant / revisionist died and thereafter, defendant occupied the said shops and running a business in the name of M/s National Traders.

3. In response to the averment as made in plaint, written statement was filed and in para-1 of the written statement, this fact has not been denied by the defendant/revisionist that his father Hari Prasad was the tenant in the 1 shops in question, on the monthly rent of Rs. 2,000/-. In para-13 onwards to para-18, in the written statement defendant/revisionist contended earlier the plaintiff executed two agreement to sell on 18.05.1995 for selling out two shops is question bearing Shop No. 37/9 and 37/10 with M/s Ram Jeevan Gauri Shankar and both the agreements were registered and after receiving the full and final consideration of the shop, the possession was also handed over to M/s Ram Jeevan Gauri Shankar. It is further contended in the additional statement that M/s Ram Jeevan Gauri Shankar further executed an assignment deed on 10.05.2005 in favour of M/s National Traders with all rights which M/s Ram Jeevan Gauri Shankar derived from the agreement dated 18.05.1995. This assignment deed was executed by M/s Ram Jeevan Gauri Shankar after receiving the amount of Rs. 2,10,000/-. In para-15, it is also contended that by virtue of assignment deed dated 10.05.2005 the defendants are in possession over the shop in question i.e. shop no. 37/9 and 37/10 and were never been the tenant of the plaintiff since all right over the shops in question which were transferred by virtue of earlier agreement to sell dated 18.05.1995 to M/s Ram Jeevan Gauri Shankar was further transferred to Ms/ National Traders by virtue of assignment deed dated 10.05.2005.

4. It is further contended that since by virtue of the agreement to sell dated 18.05.1995 the entire consideration towards the shops in question were received by the plaintiff and he has also handed over the possession to M/s Ram Jeevan Gauri Shankar which were transferred to the defendant by virtue of assignment deed, therefore, the defendants cannot be treated to be the tenant of the plaintiff. It is also contended in the written statement that the defendant / revisionist were never been the tenant of plaintiff.

5. On the other side Mr. B.P.Nautiyal, learned Senior Counsel for the respondent argued that the earlier agreement to sell was executed in between the plaintiff and M/s Ram Jeevan Gauri Shankar and the period as stated therein for execution of sale deed was three years which was already expired in 1998 but no attempt was made by the second party for 2 execution of the sale deed within the stipulated period, therefore, his right over the shops in question already extinguished on the expiry of the period as stipulated in the agreement to sell dated 18.05.1995.

6. Mr. Nautiyal further argued that so far as the assignment deed dated

10.05.2005 is concerned by which M/s Ram Jeevan Gauri Shankar transferred all rights which he derived from the earlier agreement to sale dated 18.05.1995 to M/s National Traders is nullity and a void document, since the rights as derived from the earlier agreement 18.05.1995 were already extinguished on expiry of three years i.e. in the year 1998, therefore, M/s Ram Jeevan Gauri Shankar have no right to transfer any rights which he has derived from earlier agreement to sell dated 18.05.1995 to the defendant.

7. Mr. Nautiyal further argued that the instant revision is totally misconceived and is liable to be dismissed for the simple reason that M/s Ram Jeevan Gauri Shankar have no right to execute the assignment deed in favour of M/s National Traders since M/s Ram Jeevan Gauri Shankar extinguish all rights which he from earlier agreement dated 18.05.1995. He further argued that at the time when the suit was instituted the agreed rate of rent was Rs. 2,000/- per month and thereafter, trial court rightly determine the monthly rent at the rate of Rs. 6,000/- per month for both the shops.

8. Mr. Piyush Garg, learned counsel for the revisionist further argued in respect of monthly rent of Rs. 6,000/ submits that there is no discussion on the enhanced monthly rent since neither any such issue was framed nor any evidence was produced by the plaintiff, therefore, the order to this extent passed by the trial court, is apparently illegal and cannot sustain.

9. After hearing the arguments of learned counsel for the parties, this Court is of the view that undisputedly the earlier agreement to sell was executed in between the parties on 18.05.1995 and the period as stipulated therein for execution of the sale deed was three years was expired in the 3 year 1998. Therefore, the right as derived from the said agreement by M/s Ram Jeevan Gauri Shankar come to an end since no such attempt was made for enforcement of the earlier agreement dated 18.05.1995. So far as the assignment deed dated 10.05.2005 is concerned since M/s Ram Jeevan Gauri Shankar extinguish all rights which they derived from earlier agreement, therefore, the assignment deed is nothing but a void document. Thus, in view of the discussions as above, I do not find any merit in the instant revision.

10. So far as the determination of monthly rent at the rate of Rs. 6,000/- per month is concerned, admittedly the trial court have not framed any such issue and furthermore, there is no such evidence produced by the plaintiff in this regard. Therefore, this Court is of the view that the trial court committed error while determining the issue of increasing monthly rent of the shops in question.

11. In view of the discussion as made above, the instant revision no merit, however, taking into consideration that there is no discussion on the monthly rent of the shop in question which was increased by the trial court, therefore, the order impugned is also required to be modified only to this extent and instead of Rs. 6,000/- monthly rent this Court is of the view that monthly rent should be Rs. 3,000/- per month. Accordingly, order impugned is modified by fixing monthly rent at the rate of Rs. 3,000/- per month. The Executing Court is directed to calculate and release the amount at the rate of Rs. 3,000/- per month in place of Rs. 6,000/- per month after adjusting the amount already paid and refund the rest of the amount to the revisionist.

12. In view of the discussion, observation and directions as made above the instant Civil Revision is disposed of finally. Nahid 4 (Rakesh Thapliyal, J.) 18.09.2025