Widow of Sardar ali v. Karuna Shanker Dubey — 1983 DIGILAW 906 (ALL)

JUDGMENT Kamleshwar Nath, J. - In respect of certain piece of land let out by Karuna Shankar plaintiff-respondent No. 1 to Sardar Ali, the deceased husband of defendant-appellant No. 1, the plaintiff-respondent No. 1 filed a suit for recovery of Rs. 144.83 p. as arrears of rent and damages and for eviction therefrom after a notice dated February 11, 1969 of termination served on February 13, 1969 on Sardar Ali with the demand of rent at the rate of Rs. 10/- per month. During the pendency of the suit Karuna Shankar transferred the property to the respondent No. 2, Mitargan Sahakari Grah Nirman Samiti which accordingly as impleaded as the co-plaintiff. 2. The case of the defendant Sardar Ali was that on the land in question he had made pucca thatched structure in the knowledge of Karuna Shankar brother, Ram Shankar Dubey and, therefore, the suit was defective for not seeking the relief for demolition of those structures. It was next pleaded that the notice of termination of tenancy was invalid because it purports to terminate the tenancy immediately and also because the sons of Karuna Shankar did not join it, although the property was the ancestral property of Karuna Shankar. It was pleaded that the plaintiff's claim of rent at the rate of Rs. 10/- per month was wrong and the correct rent was Rs. 4/- per month and that since he had paid the entire arrears on March 10, 1969 per month and that since he had paid the entire arrears on March 10, 1969 i.e. within one month of the date of service of the notice, the suit was barred by the provision of Section 20(2)(a) of the U.P. Act 13 of 1972. The acceptance of arrears, it was said, constituted waiver of the notice to quit. It was lastly said that the defendants were entitled to the protection of Section 29-A of U.P. Act 13 of 1972 because construction on the disputed land had been made within the knowledge of the plaintiff who had not raised any objection. 3. Both the Courts below held that the proper rate of rent was Rs. 4/- per month and not Rs. 10/- per month as settled in a previous litigation between the parties. There is no dispute on this point at this stage. 4. 3. Both the Courts below held that the proper rate of rent was Rs. 4/- per month and not Rs. 10/- per month as settled in a previous litigation between the parties. There is no dispute on this point at this stage. 4. The trial Court held that the defendant had paid the entire arrears of rent within one month of the service of the notice of demand and therefore he was not a defaulter, the appellate Court did not agree with the finding and said that the defendants had failed to prove the payment in question. 5. The trial Court held that the notice of termination of tenancy was invalid for the reasons alleged by the defendants, but the appellate Court rejected those reasons and held the notice to be valid. 6. Both the Courts below held that the structures in question were purely temporary and, therefore, the defendants were not entitled to the benefit of the provisions of Section 29-A of the U.P. Act 13 of 1972. However, the trial Court, on the basis of its findings on the question of notice and payments of arrears dismissed the suit, but the lower appellate Court, disagreeing with those findings, decreed the suit. 7. At the time of hearing of this appeal a contention was raised on behalf of the appellant No. 6 by a learned counsel engaged separately for the purpose, with an application that since she had not been served with any notice of the proceedings in the lower appellate Court, the ex parte decree passed against her by the lower appellate Court was illegal and therefore, the judgment should be set aside and the case should be remanded to the lower appellate Court. The application was objected to on behalf of the plaintiff-respondent who filed the counter-affidavit. It is plain enough that the question whether or not the appellant No. 6 was served with notice of the hearing before the lower appellate Court is a question of fact which was open for consideration before the lower appellate Court. This Court cannot record a finding of fact on this point in the first instance. The plea is barred by the provisions of Order 41, Rule 21, Civil Procedure Code. This Court cannot record a finding of fact on this point in the first instance. The plea is barred by the provisions of Order 41, Rule 21, Civil Procedure Code. The learned counsel who presented the appeal in this Court on behalf of the appellants including appellant No. 6 says, that he had not filed vakalatnama on behalf of appellant No. 6 and, therefore, it is not an appeal on her behalf. This contention does not further any right to appellant No. 6. It at all it might only signify that appellant No. 6 had not filed an appeal. In that sense, she would be totally out of Court. The main question for consideration is whether the notice terminating the tenancy was valid or not. The relevant portion of notice is as follows :- "That my client does not wish to keep you as his tenant and has asked me to terminate your tenancy which, I hereby, do and ask to vacate and hand over peaceful possession of the land in your tenancy at the expiry of 30 days next after the receipt of this notice failing which I shall be forced to file a suit for legal redress against you in a Court of competent jurisdiction at your cost." Accordingly to the learned counsel for the appellants, the purport of the notice is an immediate termination of the tenancy with a direction to vacate the premises at the expiry of 30 days. Emphasis has been laid upon the words that the plaintiff-respondent had asked the lawyer 'to terminate your tenancy which I hereby do." The contention is that the landlord, intended by these words to terminate the tenancy which was accordingly terminated then and there. Counsel for the plaintiff-respondent says that the expression does not imply an immediate termination of tenancy and that read as a whole, inspite of the expression the clear statement is that the defendant was required to hand over peaceful possession of the land, "In your tenancy". The contention is that simultaneously with the intention of termination the continued possession of the defendant-appellant was described to be that of a tenant which was to be delivered on the expiry of 30 days after the service of the notice. The contention has been accepted by the learned lower appellate Court and I think correctly so. 8. The contention is that simultaneously with the intention of termination the continued possession of the defendant-appellant was described to be that of a tenant which was to be delivered on the expiry of 30 days after the service of the notice. The contention has been accepted by the learned lower appellate Court and I think correctly so. 8. As an aid to interpretation, the learned counsel for the defendant-appellants referred to Type(D) of the various notice considered by our High Court in the case of Abdul Jalil v. Haji Abdul Jalil, AIR 1974 Allahabad 402, which is as follows :- "Your tenancy is terminated with effect from today and you are required to vacate the premises on the expiry of 30 days from the date of service of this notice upon you." It is clear enough that the recital in this notice specifically terminated the tenancy with effect from "to day", which is not the position in the present case. Learned counsel for the respondent contended, and the lower appellate Court correctly agreed, that the notice in the present case is closer to the Type (E) set-forth in the above ruling. The expression used in that Type was as follows :- "Your tenancy is terminated and you are required to vacate the premises on the expiry of thirty days from the date of service of this notice failing which a suit for ejectment shall be filed against you." The Hon'ble High Court held that a notice of that sort did not immediately terminated the tenancy and was a valid notice. The contention of the learned counsel for the appellants, therefore, has no force and is rejected. 9. Learned counsel for the appellants referred to the Oxford Dictionary meaning of the words "hereby" and "do" to signify that they respectively mean "by this means" and "bring to an end, have done". The contention is that the expression used by the landlord means that by means of the impugned notice the tenancy was terminated immediately. There can be no doubt that the tenancy was terminated by means of that notice, and even if the expression "do" may mean "bring to and end, have done" it does not signify the completion of an act at that very particular moment. There can be no doubt that the tenancy was terminated by means of that notice, and even if the expression "do" may mean "bring to and end, have done" it does not signify the completion of an act at that very particular moment. It just means that the tenancy is terminated and the tenant is permitted to continue in possession for 30 days and to vacate it at the expiry of that period. 10. The next ground urged is that the sons of Karuna Shanker Dubey had not joined in the notice nor the notice described it to be an act on behalf of the sons. It is admitted that the dispute property was an ancestral property of Karuna Shanker Dubey and his brother and that by means of a partition it fell to the share of Karuna Shanker Dubey. According to the own submissions of the learned counsel for the appellants, based on the sale-deed executed by Karuna Shaker Dubey in favour of the plaintiff respondent No. 2 the Grah Nirman Samiti, all the three sons of Karuna Shanker Dubey were minors and Karuna Shanker Dubey was their natural Guardian as father, indeed he had transferred the property in that capacity on behalf of himself and on behalf of their three sons. This fact, however, concerns the title or ownership to the property. The learned lower appellate Court has rightly drawn a distinction between the relationship of landlord and tenant from that of an owner and tenant. The finding of fact recorded is that it is Karuna Shanker Dubey who was the landlord of the defendant-appellants as a tenant. It is also an admitted fact that in an earlier suit filed only by Karuna Shanker Dubey, the decree for arrears of rent at the rate of Rs. 4/- per month had been awarded to him against the defendant-appellants. It is this decree on the basis of which the defendant-appellants have successfully established that the rate of rent was Rs. 4/- per month and not Rs. 10/- per month. There is no illegality, therefore, in the view of the lower appellate Court that Karuna shanker Dubey was the landlord and it is wholly immaterial that the minor sons who might be the co-owners were not the co-landlords. 4/- per month and not Rs. 10/- per month. There is no illegality, therefore, in the view of the lower appellate Court that Karuna shanker Dubey was the landlord and it is wholly immaterial that the minor sons who might be the co-owners were not the co-landlords. The case of Ram Swaroop v. Roshan, 1964, Allahabad Law Journal 465, relied upon by the learned counsel for the appellant specifically mentioned that the lease had been granted by two persons. Only one of whom had issued the notice terminating the tenancy and had filed the suit. It was, therefore, held that such single person could neither terminate the tenancy nor use for ejectment. Similarly, in the case of Vijay Kumar Tandon v. Smt. Ganga devi Rathor, 1969 Allahabad Law Journal 403, the co-owners had said that all of them were landlords although they went on to say that for all practical purposes only one of them were landlord although they went on to say that for all practical purposes namely, lady, was the landlady. This contention was repelled, and it was held that the lady alone could either terminate the tenancy nor use for ejectment. The facts of the present case are entirely different. It is a simple case of any exclusive relationship of landlord and tenant between Karuna Shanker Dubey and the defendant-appellants, sons of Karuna Shanker Dubey are not in the picture at all, so for as that relationship is concerned. 11. The next point urged by the learned counsel for the appellants is that the appellants had made permanent structures upon the disputed land and, therefore, they are entitled to the protection of Section 29-A of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act 13 of 1972), is short called the Act. 11. The next point urged by the learned counsel for the appellants is that the appellants had made permanent structures upon the disputed land and, therefore, they are entitled to the protection of Section 29-A of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act 13 of 1972), is short called the Act. Section 29-A (6) of the Act prescribed the passing of a decree for eviction of a tenant from the land, to which the section applies, except on one or more of the ground mentioned in sub-section (2) of Section 20 of the Act, but this benefit is granted "provided the tenant, within a period of three months from the commencement of this section by an application to the Court, unconditionally officers to pay to the landlord, the enhanced rent of the land for the entire period in suit and onward at the rate of ten per cent per annum of the prevailing market rate of the land together with costs of the suit....". This provision contemplates on unconditional offer to the landlord to pay the stipulated enhanced rent. Counsel for the appellants says that for this purpose the plaintiff-respondent should have made an application to the District Magistrate under Section 29-A (5) of the Act. The contention is not correct. Section 29-A (5) of the Act applies to the cases other than those in which Court proceedings are pending, in proceedings, which are pending before a Court at any stage determination has to be done by that Court under Section 29-A (6)(b) of the Act. Admittedly, in this case no such offer was made by the defendant-appellants. 12. Again Section 29-A applies "only to land let out...... where the tenant, with the landlord's consent has erected any permanent structure...." vide sub-section (2) of Section 29-A. It is concurrent finding of fact of both Courts below that the structure on the disputed land was not of a permanent nature but purely temporary. Counsel for the appellants says that this finding of the trial Court is perverse because Syed Abdul Khan (D.W.3) had stated that in the southern side there was a pucca room while other structure were on Balli and Shed. Counsel for the appellants says that this finding of the trial Court is perverse because Syed Abdul Khan (D.W.3) had stated that in the southern side there was a pucca room while other structure were on Balli and Shed. Learned counsel for the plaintiff-respondents says that in the absence of a proper spot inspection under Order 20VI of the Civil Procedure Code there is no firm basis for holding that the pucca room referred to by Syed Abdul Khan was in the disputed land. A second feature in this connection with regard to the Statement of Amin Syed Abdul Khan (D.W.3) is that he has also prepared a map which he had given to the defendant-appellant, Sarfaraz. The primary evidence of the exact location of the disputed structure was, therefore, the map and if in this circumstances the Courts below refused to rely upon the testimony of this witness to hold that any structures on the disputed land were not proved to be permanent, they cannot be said to have committed any illegality which can be interfered with in second appeal. I would agree with the learned lower appellate Court that the defendant-appellants are not entitled to the benefit of Section 29-A of the Act. 13. The last point urged by the learned counsel for the appellants is that the plaintiff-respondent ha not sought the relief for demolition of the structures. He has not referred to any law on the subject. Prima facie a tenant is liable to restore the tenanted property to the landlord on the termination of the tenancy on the same condition in which it was originally let out, vide Section 108(m) of the Transfer of Property Act. If he does not do so, he may have to lose all things attached to the earth when he would be forced to vacate the premises as required under Section 108(s) of the Transfer of Property Act. Thus, in law, the defendant-appellants are bound to restore the property to the condition of bare land, and what they ought to do would be well within the powers of the Court to force them to do them even if no particular relief in this respect was sought. 14. Thus, in law, the defendant-appellants are bound to restore the property to the condition of bare land, and what they ought to do would be well within the powers of the Court to force them to do them even if no particular relief in this respect was sought. 14. I may refer to observation of our High Court in the case Chief Inspector of Stamps, U.P., Allahabad v. Lal Raho Kumar Pal and others, 1969 Allahabad Law Journal 738, which basically arose out of a question for valuation and payment of Court-fee in a suit for possession over land where certain structures stand. The relevant observation at page 741 column 1 is as follows :- "If the plaintiff and only claimed the relief of possession over the land without asking for demolition or possession of the constructions made thereon, the subject-matter of the relief would have been only the land and not the constructions. If a decree was passed in favour of the plaintiff the defendant could either remove the constructions or let the plaintiff take along with the land. The plaintiff would, in that case have to pay court-fee on the value of the land and not of the buildings but, if, in addition to the relief of possession of the land, the plaintiff asks for the relief of demolition of the constructions standing on the land the subject-matter of this relief will be the constructions and he has to pay an additional court-fee for the relief calculated on the basis of the market value of the constructions of course, it is open to the plaintiff to give up the relief of demolition." We are not concerned, in the case, with the principles governing jurisdiction court-fee, but the decision gives a direction to the legal rights of parties in such matters. It is plain enough that the plaintiff is not bound to ask for relief of demolition. 15. No other point has been urged in this appeal which should fail. 16. The appeal is dismissed with costs.