Ram Surat Ram (Maurya), J.—Heard Sri Siddhartha Srivastava, for the petitioner and Sri Bhanu Bhushan Jauhari, for respondent-2.
2. This petition has been filed for setting aside the order of Additional District Judge, dated 13.11.2015, rejecting application of petitioner for additional evidence in revision, under Section 25 of Provincial Small Cause Courts Act, 1887.
3. The petitioner is a tenant at ground floor of House No. 384-A, Chowk Takia, mohalla Brahmapura, Bareilly. Vijay Kumar (respondent-2) filed a suit (registered as SCC Suit No. 55 of 1997) for arrears of rent, damages and ejectment of the petitioner from the premises in dispute. Respondent-2 took plea that Shankar Dayal Patiyari was owner and landlord of the premises in dispute and the petitioner was a tenant. Earlier rent was Rs. 310/- per month, which was enhanced to Rs. 500/- per month from April 1994 with the consent of the parties. The petitioner paid rent, at the rate of Rs. 500/- per month, up to February 1995 to Shankar Dayal Patiyari, who died on 27.03.1995. Shankar Dayal Patiyari executed a will dated 26.03.1995 in favour of respondent-2. Respondent-2 filed Misc. Case No. 40 of 1996 for issue of Probate of the will dated 26.03.1995, in which probate was granted to him on 03.12.1996. Respondent-2 informed the petitioner about the will dated 26.03.1995, by notice dated 05.04.1996 and on its basis, demanded rent but he did not care. Thereafter, by registered notice dated 26.03.1997, his tenancy was terminated and he was asked to give arrears of rent, which was due from March, 1995 and vacate the premises within one month. In spite of service of notice, the petitioner neither paid arrears of rent nor vacated the premises in dispute. On these allegations, the suit was filed.
4. The petitioner contested the suit and filed his written statement. The petitioner took plea that disputed accommodation was let out by Smt. Kunti Devi wife of Shankar Dayal Patiyari to his father Baldev Bihari Lal Saxena, in 1981, on rent of Rs. 50/ per month. Baldev Bihari Lal Saxena died on 22.12.1991 and tenancy was inherited by him. He paid rent to Shankar Dayal Patiyari, at the rate of Rs. 50/- per month, up to February 1995. Shankar Dayal Patiyari died on 26.03.1995. From March 1995 rent could not be paid to any one as Smt. Kunti Devi and her two daughters died during life time of Shankar Dayal Patiyari and his only son is a mentally retarded person. After filing SCC Suit No. 55 of 1997 by Vijay Kumar (respondent-2), arrears of rent, at the rate of Rs. 50/- per month was deposited in this suit, according of Section 20 of U.P. Act No. 13 of 1972 read with Order 15, Rule 5 C.P.C. Vijay Kumar has illegally fabricated the will dated 26.03.1995, allegedly executed by Shankar Dayal Patiyari in his favour although Shankar Dayal Patiyari had one son and there was no reason for him to execute will dated 26.03.1995, in favour of the petitioner, at the time of his death. Vijay Kumar had nothing to do with premises in dispute and the suit filed by him for arrears of rent and his ejectment was not maintainable.
5. Trial Court, apart from other issues, framed Issue No. 1 to the effect as to whether, respondent-2 is landlord and the petitioner is tenant of premises in dispute. In order to prove this issue, respondent-2 filed will dated 26.03.1995 and examined Shashi Kiran Saxena (PW-2), attesting witness of the will. He also filed photostat copy of probate dated 03.12.1996 granted to him in Misc. Case No. 40 of 1996. Vijay Kumar was examined as PW-1 and stated that on the basis of will dated 26.03.1995 he filed Misc. Case no. 40 of 1996 for issue of Probate in his favour, which has been allowed by District Judge Bareilly and Probate was issued on 03.12.1996. The petitioner filed an application (registered as Misc. Case No. 278 of 2003) for revocation of Probate, which was dismissed by District Judge on 04.05.2009. The petitioner filed an appeal (registered as FAFO No. 2556 of 2009) before High Court. Although appeal was admitted but no interim order was granted in it. Respondent-2 also filed rent receipts (27 Ga and 30 Ga/1 and 30 Ga/2), containing signatures of the petitioner to prove that in February 1995, rent was Rs. 500/- per month. The petitioner challenged signatures of Shankar Dayal Patiyari on these papers. He filed an application for summoning original documents relating to service/pension of Shankar Dayal Patiyari, from the office of Divisional Railways Manager, Izatnagar, Bareilly as Shankar Dayal Patiyari retired from service of Railways and was getting pension. On this application, papers relating to pension of Shankar Dayal Patiyari were summoned from office of Divisional Railways Manager, Izatnagar, Bareilly. Vijay Bahadur (DW-1), an employee of Railways, brought these papers also got one additional photostat copy, and produced in Court on 06.04.2004. When these papers were produced on 06.04.2004, statement of Vijay Bahadur (DW-1) was recorded and photostat copy was retained. The petitioner moved an application (87-C) for retaining original documents and getting a report from Finger Prints and Hand Writing Expert of signatures of Shankar Dayal Patiyari as contained in his service records and on will dated 26.03.1995 but that application was rejected by Trial Court by order dated 05.07.2004. The petitioner filed another application (94-C) for summoning original documents relating to pensions of Shankar Dayal Patiyari, from office of Divisional Railways Manager, Izatnagar, Bareilly, on 05.08.2004, which was rejected on same day. The petitioner filed another application for deciding his application (59-C), which remained un-disposed of. Trial Court by order dated 29.10.2012 held that as two subsequent applications for same prayer were rejected as such no fresh order is required to be passed on application (59-C). Thereafter, statement of the petitioner was recorded as DW-2, who in his statement admitted signatures of Shankar Dayal Patiyari on the will.
6. Trial Court, after hearing the parties by judgement dated 12.08.2014 held that it is admitted that the petitioner was tenant and Shankar Dayal Patiyari was landlord of the premises in dispute. On the basis of will dated 26.03.1995, executed by Shankar Dayal Patiyari, respondent-2 is claiming to be landlord. Due execution of will dated 26.03.1995 was proved by Shashi Kiran Saxena (PW-2). Probate was also granted by District Judge in favour of respondent-2 on the basis of aforesaid will in Misc. case No. 40 of 1996 on 03.12.1996. The application (Misc. Case No. 278 of 2003) moved by the petitioner for revocation of Probate was also rejected on 04.05.2009. Probate cannot be ignored by this Court. From receipts containing signatures of the petitioners, it was proved that rate of rent was Rs. 500/- per month in February 1995. The petitioner deposited arrears of rent from March 1995 at the rate of Rs. 50/- per month only as such he was not entitled to protection of Section 20 (4) of U.P. Act No. 13 of 1972. On these findings suit was decreed.
7. The petitioner filed a revision (registered as SCC Revision No. 39 of 2014) from aforesaid decree. The petitioner filed an application (17-C) in revision for summoning original service/pension records of Shankar Dayal Patiyari from office of Divisional Railways Manager, Izatnagar, Bareilly and obtaining report of Finger Prints and Hand Writing Expert, of the signatures of Shankar Dayal Patiyari, from his original service records and on will dated 26.03.1995, for comparison. Revisional Court by order dated 24.08.2015 found that as the application of the petitioner for same prayer was rejected by Trial Court by order dated 05.07.2004. The petitioner filed SCC Revision No.35 of 2004 from aforesaid order, which was dismissed by District Judge on 30.07.2004. As such his application for same prayer cannot be allowed by the Court. On these findings he rejected the application. The petitioner challenged aforesaid order in Matter Under Article 227 No. 5226 of 2015, which was allowed by this Court, by order dated 15.09.2015 and matter was remanded to revisional court to decide the application for additional evidence on merit, without being influenced by previous orders. Thereafter, revisional court by impugned order dated 13.11.2015, held that as admittedly the petitioner is tenant in premises in dispute. Respondent-2 filed will dated 26.03.1995 and examined Shashi Kiran Saxena, as DW-2 attesting witness of the will, who proved due execution of will. District Judge has also issued Probate on the basis of will dated 26.03.1995 to respondent-2. The petitioner, in his statement as DW-2, has also admitted signatures of Shankar Dayal Patiyari on the will as such he cannot be permitted to adduce additional evidence, challenging genuineness of signatures on the will. On these findings, he rejected the application. Hence this petition has been filed.
8. The counsel for the petitioner submitted that Order 41, Rule 27 (1) (a) C.P.C. provides for filing additional evidence, if the evidence were adduced before Trial Court but were rejected by it. The case of the petitioner is fully covered under Order 41, Rule 27 (1) (a) C.P.C. This Court also by order dated 15.09.2015 directed revisional court to decide the application of the petitioner on merit but revisional court again rejected the application without application of mind to the facts of the case and relevancy of additional evidence. Respondent-2 was not original landlord nor the petitioner ever admitted him as his landlord. He derives his title on the basis of will dated 26.03.1995 executed by Shankar Dayal Patiyari, which is highly suspicious document. In as much as Shankar Dayal Patiyari died on 26.03.1995 and there is no explanation for execution of will at the time of death. He left behind him one son, who is mentally retarded and no provision has been made for his maintenance in alleged will dated 26.03.1995. Smt. Shashi Kiran Saxena, attesting witness of the will is wife of respondent-2. So far as Probate is concerned, it has not become final as FAFO No. 2556 of 2009 was filed by the petitioner against it, which has been admitted and is pending before this Court. Probate was obtained by committing fraud on Court and is liable to be ignored. Shankar Dayal Patiyari retired from Railways service. His signatures on the will was liable to be compared with his signatures in service record. Application (17-C) of the petitioner, for summoning original service records of Shankar Dayal Patiyari from office of Divisional Railways Manager, Izatnagar, Bareilly and obtaining report of Finger Prints and Hand Writing Expert, of the signatures in his original service records and on will dated 26.03.1995, for comparison, which is essential evidence for deciding the controversy involved in the suit, correctly. But the application has been illegally rejected by trial court and also by revisional court. The order of court below is illegal liable to set aside. He relied upon judgements of Supreme Court in Hem Nolini Judah v. Isolyne Sarojsbashini Bose, AIR 1962 SC 1471, in which it has been held the proceedings for Probate are not concerned with title of property under the will. S. Thangappan v. P. Padmavathy, (1999) 7 SCC 474, Sheela v. Firm Prahlad Rai Prem Prakash, AIR 2002 SC 1264 and Ramji Gupta v. Gopi Kishan Agrawal, AIR 2013 SC 3099, and judgement of this Court in Chhotey Lal Shukla v. IX Additional District Judge, 2007 (68) All L R 277 and Writ-C No. 17271 of 2013 Gulab v. Om Prakash, decided on 13.05.2013, in which it has been held that a tenant is entitled to question derivative title of the subsequent landlord. Gurdev Singh v. Mehnga Ram, AIR 1997 SC 3572, in which it has been held that additional evidence admitted by appellate court should not be interfered by revisional court.
9. I have considered the arguments of the counsel for the parties and examined the record. The petitioner admitted that Shankar Dayal Patiyari was his landlord. In paragraph-14 of written statement it has been admitted that Pratap Shankar Patiyari, father of respondent-2, was real brother of Shankar Dayal Patiyari. Respondent-2 derived his title on the basis of will dated 26.03.1995 executed by Shankar Dayal Patiyari in his favour. Respondent-2, in order to prove his title, filed will dated 26.03.1995 and examined Shashi Kiran Saxena (PW-2), attesting witness of the will. He also filed photostat copy of probate dated 03.12.1996 granted to him in Misc. Case No. 40 of 1996 and examined himself as PW-1 and stated that on the basis of will dated 26.03.1995 he filed Misc. Case no. 40 of 1996 for issue of Probate in his favour, which has been allowed by District Judge Bareilly and Probate was issued on 03.12.1996. The petitioner filed an application (registered as Misc. Case No. 278 of 2003) for revocation of Probate, which was dismissed by on 04.05.2009. The petitioner filed an appeal (registered as FAFO No. 2556 of 2009) before High Court. Filing of Misc. Case No. 278 of 2003, for revocation of Probate dated 03.12.1996 and its dismissal of Misc. Case No. 278 of 2003 on 04.05.2009 and filing of FAFO No. 2556 of 2009 are admitted to the petitioner.
10. The petitioner filed an application for summoning original documents relating to service/pensions of Shankar Dayal Patiyari, from office of Divisional Railways Manager, Izatnagar, Bareilly as Shankar Dayal Patiyari retired from service of Railways and was getting pension. On his application, papers relating to pension of Shankar Dayal Patiyari were summoned from office of Divisional Railways Manager, Izatnagar, Bareilly. Vijay Bahadur (DW-1), an employee of Railways, brought these papers. He also got one additional photostat copy, which were produced in Court on 06.04.2004. When these papers were produced on 06.04.2004, statement of Vijay Bahadur (DW-1) was recorded and photostat copy was retained, after its comparison from original records.
11. Thereafter, the petitioner moved an application (87-C) for retaining original documents and to get a report from Finger Prints and Hand Writing Expert but that application was rejected by Trial Court. The petitioner filed another application (94-C) for summoning original documents relating to pensions of Shankar Dayal Patiyari, from office of Divisional Railways Manager, Izatnagar, Bareilly, on 05.08.2004, which was rejected on same day. The petitioner filed another application for passing order on his application (59-C) which remained un-disposed. Trial Court by order dated 29.10.2012 held that as two subsequent applications for same prayer were rejected as such no fresh order is required to be passed on application (59-C).
Thereafter, statement of the petitioner was recorded as DW-2, who in his statement admitted signatures of Shankar Dayal Patiyari on the will.
12. From aforesaid facts, it is proved that respondent-2 has proved due execution of will according to Section 68 of Evidence Act, 1872. It is admitted to the petitioner that District Judge by order dated 03.12.1996 issued Probate of the will dated 26.03.1995 to respondent-2 in Misc. Case No. 40 of 1996. The petitioner filed Misc. Case No. 278 of 2003, for revocation of Probate but it has been dismissed by order dated 21.08.2009 and his FAFO No. 2556 of 2009 is pending. On the own application of the petitioner, original papers relating to service/pension of Shankar Dayal Patiyari were summoned from office of Divisional Railways Manager, Izatnagar, Bareilly. Vijay Bahadur (DW-1), an employee of Railways, brought these papers. He also got one additional photostat copy, which were produced in Court on 06.04.2004. When these papers were produced on 06.04.2004, statement of Vijay Bahadur (DW-1) was recorded and photostat copy was retained, after comparison from original records. Thereafter, the petitioner in his statement as DW-2 admitted signatures of Shankar Dayal Patiyari on the will dated 26.03.1995. After admission of signatures on will, filing of the application for additional evidence in revision for summoning original service/pension records of Shankar Dayal Patiyari from office of Divisional Railways Manager, Izatnagar, Bareilly and obtaining report of Finger Prints and Hand Writing Expert, of the signatures of Shankar Dayal Patiyari, from his original service records and on will dated 26.03.1995, for comparison is not relevant. It has been rightly rejected by the Court below.
13. Vijay Bahadur (DW-1), an employee of Railways, brought these papers. He also got one additional photostat copy, which were produced in Court on 06.04.2004, along with original papers. When these papers were produced on 06.04.2004, statement of Vijay Bahadur (DW-1) was recorded and photostat copy was retained, after comparison from original records. Trial Court, exercising its powers under Section 73 of Evidence Act, 1872 compared signatures of Shankar Dayal Patiyari on the will dated 26.03.1995 from his signatures in service record. Thus absolutely no additional evidence is required particularly after admission of the petitioner.
14. In view of the aforesaid discussions, the petition has no merit and is dismissed.
