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2006 DIGILAW 2519 (ALL)

RAM KALI v. RAM KISHORI

2006-10-09

UMESHWAR PANDEY

body2006
UMESHWAR PANDEY, J. This appeal arises out of the judgment and decree dated 30-7-2005 passed by the lower appellate Court dismissing the first appeal of the appellant and affirming the judgment and decree passed by the trial Court. 2. The respondent-plaintiff filed a suit for eviction of the appellant-defendant from the premises in question alongwith a prayer for recovery of arrears of rent and damages. A piece of land in dispute sought to have been given to the defendants- appellants by Late Smt. Hero Devi and one Sita Ram on monthly rent regarding which a lease-deed was executed. That piece of land was subsequently transferred by Smt. Hero Devi and others in plaintiffs favour through registered sale-deed dated 24-1-1980. An intimation of this transfer of the disputed property was given by the vendees plaintiffs to the defendants and instructed them to pay the rent to them instead of Smt. Hero Devi and others. No heed on this request of the plaintiff was given by the defendants. A notice under Section 106 Transfer of Property Act was given by the plaintiffs to the defendant but still the premises was not vacated nor the arrears of rent were paid. Consequently a suit for eviction on the small causes side of the Court was instituted by the plaintiffs but that suit was held to be not cognizable by the Court on small causes and the plaint was returned for proper presentation before a regular Court. As a result this suit was presented before the regular Court. The validity of the notice was challenged in the written statement and it was also disputed by the defendants that they were in arrears of payment of rent. They also alleged that since the defendant had put in tin shade in the suit land the Provisions of U. P. Urban Building (Regulation of Letting Rent and Eviction) Act, 1972 are applicable to the suit property and the suit as such is cognizable by the Court of Judge Small Causes. The defendants also took the plea that only an area of 64 square yard was transferred by Smt. Hero Devi to the plaintiffs and, therefore, this suit for eviction from other 100 square yard of land could not be legally decreed. 3. On the aforesaid pleadings of the parties the trial Court framed as many as 13 issues in this case and gave its findings. 3. On the aforesaid pleadings of the parties the trial Court framed as many as 13 issues in this case and gave its findings. In the findings recorded, the contentions of the plaint were found to have been proved by the plaintiff and it was held that the notice under Section 106 of Transfer of Property Act given by the plaintiff to the defendants was wholly valid and the provisions of the aforesaid U. P. Act No. 13 of 1972 are not applicable. Since the property let out is only an open land without any construction on it the suit would lie before regular civil Court. The Court also found that the suit relates only to an area of 64 square yard of land which had actually been transferred by Smt. Hero Devi the original owner and others in plaintiffs favour and, therefore, the decree would be passed only with regard to that extent and nothing beyond it. Accordingly, finding merits in the suit, the trial Court decreed it and eviction order was passed. The decree for arrears of rent and damages was also awarded. 4. The aforesaid decree of the trial Court was a subject of challenge before the Court below in first appeal and the lower appellate Court while concurring with the findings recorded by the trial Court has found that the suit for eviction and recovery of arrears of rent was rightly decreed. The findings and the conclusions recorded by the trial Court were affirmed and the appeal of the defendant has been dismissed. 5. I have heard the learned Counsel for the parties and gone through the entire material available on record. 6. The learned Counsel for the appellants while placing his submissions in this second appeal emphasized that the Court below has wrongly held the property in question out of the purview and application of the Provisions of U. P. Act No. 13 of 1972 and the findings so recorded are legally erroneous. 6. The learned Counsel for the appellants while placing his submissions in this second appeal emphasized that the Court below has wrongly held the property in question out of the purview and application of the Provisions of U. P. Act No. 13 of 1972 and the findings so recorded are legally erroneous. It is also submitted by the learned Counsel that since the notice sent under Section 106 Transfer of Property Act refers to certain arrears of rent alleged to be due to the plaintiff against the defendant, the notice is illegal because from the record it is found that all the rent stood deposited or paid in the Court and both the Courts have not taken into consideration this aspect of the matter, thus, committing substantial legal error in recording their findings. In the third place the Counsel for the appellant has submitted that the suit as a whole should not have been decreed because only 64 square yard of land out of 100 square yard of tenanted area is shown to have been transferred by Smt. Hero Devi and others in favour of the plaintiffs and there could be no decree for the entire area of the tenament. 7. As regards the first submission made from the side of the appellant it may be noted that the suit was admittedly presented initially in the Court of Judge Small Causes by the plaintiff where a finding was recorded by the Court between the parties that the suit was not cognizable on the SCC side as the property in question is an open land and the provisions of U. P. Act No. 13 of 1972 making the suit cognizable by Judge Small Causes, would not be attracted. This finding has been permitted by the parties to become final. The appellant-defendant did not go to any higher Court either in revision or appeal against the same resulting into giving it a finality. This finding recorded by the trial Court, therefore, would operate as res judicata between the parties at this stage. The appellant-defendant would not be permitted to raise a question with regard to the same point in any other proceeding including the petitioners suit on regular side and when this question has been so raised the Courts below appear to have rightly rejected it. The appellant-defendant would not be permitted to raise a question with regard to the same point in any other proceeding including the petitioners suit on regular side and when this question has been so raised the Courts below appear to have rightly rejected it. Accordingly the argument of the learned Counsel for the appellants in this regard appears to have no basis as to give any strength to the defendants appeal before this Court. 8. The second point of argument which has been raised from the side of the appellants is that the Courts below have wrongly found the notice under Section 106 of Transfer of Property Act to be wholly valid. In this context it is relevant to note that finding of fact has been recorded by the Courts below regarding the arrears of rent and damages as alleged in the notice, as being correct. This Court while entertaining a second appeal cannot go into the question of finding of facts recorded by the trial Court as well as first appellate Court. Otherwise also the question of arrear of rent and damages is not a fact which gives rise to a cause of action for the present eviction suit. The relief of eviction is claimed in this suit by the plaintiffs- respondent on the basis of a simplicitor notice under Section 106 of Transfer of Property Act. Since the provisions of U. P. Act No. 13 of 1972 are not attracted in the present case, no ground for the eviction as referred under Section 20 of that Act which also include the tenant falling in arrears of rent, is to be taken into consideration by the Court. The intention of the plaintiff for the eviction of the defendant tenant from the premises if found demonstrated in such a notice filed in suit on the regular side of the Court, it is sufficient to create a cause of action for the eviction of tenant and any other fact even if found to be incorrect in the said notice will not amount to invalidate that notice. The Courts below in such circumstances have treated the notice in question as a valid notice. The findings recorded by them in this regard, cannot be found as vitiated in law in any respect. The Courts below in such circumstances have treated the notice in question as a valid notice. The findings recorded by them in this regard, cannot be found as vitiated in law in any respect. The third point of argument placed by the appellants is dealt with in the finding recorded by the trial Court in issue No. 11. It has been observed by the Courts below in the judgments that in fact only 64 square yards of land was given by Smt. Hero Devi and others in the tenancy in the defendants though it was roughly noted to be 100 square yard in the rent deed. The eviction of the defendant in the suit has been claimed from a property quite precisely bounded and referred to in the plaint itself stating its area as actually 64 square yard of land. From the aforesaid findings of the fact recorded by the Court below it is more than obvious from the record that the suit is in respect of a land duly identified by its boundaries given in the plaint and that area is only 64 square yards. Therefore, at this stage in a second appeal the defendant-appellant cannot argue that this land is 100 square yard and not 64 square yard as stated in the rent note. The decree passed in the suit relates to a piece of land which is 64 square yard and nothing beyond it. Therefore, this point of argument also does not appear to have any substance in it for admitting this appeal. 9. In the aforesaid view of the matter, this appeal does not appear to have any force. 10. It is accordingly dismissed at the admission stage. Appeal dismissed. .