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2005 DIGILAW 169 (UTT)

Jogendra Mittal v. Indira Devi

2005-05-13

B.C.KANDPAL

body2005
JUDGMENT This revision has been preferred against the judgment and order dated 24-01-2004 passed by Judge, Small Cause Court / A.D.J. / III F.T.C., Haridwar in Suit No. 10 of 1988, Smt. Indira Devi Vs. Jogendra Mittal. 2. Brief facts of the case are that the opposite party - Smt. Indira Devi filed a suit against the revisionist for recovery of arrear of rent and ejectment from the premises in question on the ground that Jogendra Mittal was a tenant in the accommodation in question on rent @ Rs. 225/- per month. The water tax and other tax pertaining to the accommodation in question was to be paid by the tenant. For the first time the property was assessed for the purposes of tax in year 1987, although, the property in question was constructed in the year 1981-82. The accommodation in question had been in the tenancy of Jogindra Mittal (revisionist) since 1982. Hence the provisions of U.P. Act No. 13 of 1972 were not applicable. 3. As the tenant did not pay the rent of the accommodation in question w.e.f. 01-09-1987 to 29-02-1988 hence the notice was sent by the landlady on 21-03-1988 which was received by the tenant/revisionist by 22-03-1988 but even then the tenant neither paid the rent nor evicted the property in question, hence the suit. 4. The written statement was filed by the defendant/revisionist admitting therein the tenancy on rent of Rs. 225/- per month. It has also been admitted in the written statement that the notice was received by him and he in fact replied to that notice. It has also been pleaded that initially he was a tenant of the accommodation in question for Rs. 100/- per month and thereafter it was increased to Rs. 225/- per month including water tax and house tax. It has also been pleaded that the Property in fact was purchased by the landlady in the year 1976 and thereafter she renovated it and in the year 1977 the construction was over. The landlady took the water connection on 06-04-1978 and in the year 1978 the possession was given to the tenant. As the property in question was constructed in the year 1977, therefore, the Provisions of U.P. Act 13, 1972 are applicable. 5. The landlady took the water connection on 06-04-1978 and in the year 1978 the possession was given to the tenant. As the property in question was constructed in the year 1977, therefore, the Provisions of U.P. Act 13, 1972 are applicable. 5. It is also pleaded that the rent through money order was sent to the landlady w.e.f. 01-01-1987 to 31-03-1988 but the landlady refused to accept it. Thereafter the rent was paid in the court under Section 30 of U.P. Act 13 of 1972. 6. The learned court below on the basis of the pleadings adduced by the parties framed following issues :_ a) Whether the provisions of U.P. Act 13 of 1972 are not applicable to the Property in question. b) Whether the defendant/tenant has defaulted the rent W.e.f. 01-09-1987 to 29-02-1988, if so its affect? c) Whether the plaintiff is entitled to get, the damages for occupation on the basis of the plaint's pleading? If so, then how much ? d) Whether there is any tenancy deed adduced in writing between both the parties on 08-08-1985. e) Whether the defendant has not complied the conditions mentioned in the tenancy deed dated 08-08-1985 and his tenancy is not liable to be terminated? f) What relief, the plaintiff is entitled ? g) Whether, the suit filed by the plaintiff is barred by the provisions of Section 114(a) of Transfer of Property Act. 7. The plaintiff/opposite party - Smt. Indira Devi has produced P.W.-l Vinod Kumar and P.W.-2 - Vinod Kumar Agarwal in oral evidence and also filed certain documentary evidence. While the defendant/revisionist - Jogindra Mittal produced himself as D.W.-l and filed certain documentary evidence. 8. The learned court below after hearing the counsel for the parties and having perused the entire evidence on record was pleased to dismiss the suit filed by the opposite party - Indira Devi vide judgment and order dated 07-11-1998. 9. Thereafter, the landlady filed a revision against the aforesaid order and the revisional court allowed that revision vide judgment and order dated 21-08-2003 against the judgment and thereafter, the writ petition was filed before this High Court and this Court vide order dated 10-09-2003 remanded the matter for deciding the case afresh in the light of the observations made by the High Court. 10. 10. After the matter was remanded, the court below decided the matter afresh in the light of the observations made by the High Court and vide judgment and order dated 24-11-2004 decreed the suit filed by the opposite party - Smt. Indira Devi and directed the defendant/revisionist - Jogindra Mittal to vacate the promises in question within a period of one month and handover the possession of the same to the opposite party/landlady - Smt. Indira Devi. 11. Feeling aggrieved by the aforesaid judgment and order the tenant Jogindra Mittal has filed the revision before this Court, which has been placed before me for final disposal. 12. Heard learned counsel for the parties and perused the record. 13. The documents available on the record reveals that the plaintiff has pleaded that the house in question was constructed during 1981-82 and in the year 1982, it was given on tenancy to Jogendra Mittal. The copy of the rent deed dated 08-08-1985 was filed and the court below has discussed this document. The plaintiff/opposite party - Smt. Indira Devi has admitted this document Dt. 08-08-1985 and it can safely be concluded that there was an agreement deed between the parties Dt. 08-08-1985. 14. As has been pleaded by the defendant/revisionist that the house in question was constructed in the year 1977 and the water connection was taken in the year 1978. The evidence available on the record, if is perused then it appears that D.W.-l - Jogindra Mittal has stated in his deposition that the opposite party - Smt. Indira Devi took water connection in the year 1978. But this fact alone cannot be made sufficient to derive the conclusion that in fact the house in question was constructed in the year 1977. As per the provisions of U.P. Act 13 of 1972, the accommodation in question could be treated to have been constructed only when the assessment of the tax was made. 15. Hon'ble Supreme Court in a case reported in AIR 1982 SC 1230 Om Prakash Vs. Dig Vijendrapal Gupta has given a categorical finding that the date of construction of the house will be treated to be the date when the assessment of the tax was made. 16. 15. Hon'ble Supreme Court in a case reported in AIR 1982 SC 1230 Om Prakash Vs. Dig Vijendrapal Gupta has given a categorical finding that the date of construction of the house will be treated to be the date when the assessment of the tax was made. 16. In the instant case as the assessment of the accommodation in question was made in the year 1987, hence it would be safely concluded that the year of the construction of house would be in the year 1987. 17. P. W.1 - Vinod Kumar has deposed in his statement that for the first time, the tax was assessed with regard to the property in question in the year 1987. D.W.l - Jogindra Mittal also admitted this fact. Although the rent deed was executed between the parties on 08-08-1985 but as per the documents available on record, the assessment of the tax for the first time pertaining to the accommodation in question was made in "April 1987H, therefore, the date of construction of the house in question would be April 1987 and as the suit was filed before the Court in April 1988, therefore, the provisions of U.P. Act No. 13 of 1972 would not be applicable. . . 18. As far as the arrear of rent is concerned, the plaintiff/opposite party Smt. Indira Devi has stated in the plaint that the accommodation in question was on a rent @ Rs. 225/- per month and the defendant/revisionist had not paid the rent w.e.f. 01-09-1987 to 29-02-1988. 19. The defendant/revisionist has pleaded that the rent with regard to the accommodation in question was increased from time to time and in the year 1985, it was Rs. 210/- per month, thereafter it was increased to Rs. 225/- per month. 20. D. W.-l - Jogindra Mittal has stated in his deposition that the plaintiff/ landlady had received the rent upto 1987, but for the rent of October 1987, no receipt was issued by the landlady, therefore, the rent was sent through money order which was refused by the landlady. Thereafter, he started depositing the rent in the Court under Section 30 of U.P. Act 13 of 1972. 21. The defendant/tenant has also produced the rent receipt of 03-10-1987 and the money order receipt also. The tenant has also produced the application by which he deposited the rent in the court. 22. Thereafter, he started depositing the rent in the Court under Section 30 of U.P. Act 13 of 1972. 21. The defendant/tenant has also produced the rent receipt of 03-10-1987 and the money order receipt also. The tenant has also produced the application by which he deposited the rent in the court. 22. It is important to mention here that the rent deed reveals that the water tax was to be paid by the defendant/tenant and there is no iota of evidence available on record that there was any oral agreement between the parties for paying the water tax by the plaintiff/landlady. Therefore, it can be safely concluded that it was the liability of the defendant/tenant to pay the water tax. 23. I come to the conclusion that the finding recorded by the court below that the defendant has defaulted in paying the rent of the accommodation In question cannot be said to be perverse and I do not find any reason to interfere with the finding recorded by the court below in this regard. 24. The revisionist is the tenant of the accommodation in question and he has admitted in his pleading with regard to the relationship of landlord and tenant between the parties. Therefore, in case, if the plaintiff/landlady had established her case then the .court below was justified to pass the impugned judgment and order directing the eviction of the revisionist from the premises in question and paying the arrear of rent and damages for occupation with regard to the premises in question. 25. Learned counsel for the revisionist could not point out any perversity, illegality or any misreading of evidence in the impugned judgment passed by the court below. 26. For the reasons stated above, I am of the definite view that the judgment and order passed by the court below does not require any interference. 27. The revision thus fails and is dismissed. 28. However, the revisionist is granted three weeks time from the date of the judgment to vacate the premises in question.