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Uttarakhand High Court · body

2007 DIGILAW 183 (UTT)

DURGAWATI v. SRI PARMANAND

2007-04-16

RAJESH TANDON

body2007
JUDGMENT Hon’ble Rajesh Tandon, J. Heard Sri Vijay Bhatt on behalf of Sri Parmanand and Sri Sarvesh Agarwal for Smt. Durgawati. Both the civil revisions are arising out of the same Suit No. 38 of 1998. 2. By the present civil revisions filed under Section 25 of the Provincial Small Cause Courts Act, order dated 30th July, 2005 is in challenge by which the decree for eviction has been passed against Parmanand. 3. On the basis of the defective boundary mentioned in the Judge Small Cause Courts has dismissed the suit of the plaintiff. Hence, the revision was preferred by the plaintiff as well being Revision No. 62 of 2003, Revision No. 90 of 2005 was preferred by the tenant against the findings recorded against him. 4. Briefly stated, a suit was filed by the plaintiff-Smt. Durgawati praying for eviction of the defendant-Parmanand being Suit No. 38 of 1998. The plaintiff has alleged that he is the owner of the shop measuring 10 x 15 feet situated at Khatima, District Udham Singh Nagar. The defendant is tenant of the said shop at the rate of Rs. 380/- per month. It was agreed between the parties that the defendant shall increase the rent to the extent of 5% every year. According to the averments made in the plaint, the plaintiff has submitted that from January, 1990 no rent has been paid to the defendant, details of which have been given in paragraph 3 of the plaint. 380/- per month. It was agreed between the parties that the defendant shall increase the rent to the extent of 5% every year. According to the averments made in the plaint, the plaintiff has submitted that from January, 1990 no rent has been paid to the defendant, details of which have been given in paragraph 3 of the plaint. The same are quoted below :- ß3- ;g fd izfroknh oknh dks ekg tuojh 1990 ls dksbZ fdjk;k ckotwn ryc rdkts ds dksbZ fdjk;k vnk ugha fd;k x;k gS tks fuEu izdkj gS %& ¼1½ fdjk;k ekg tuojh 1990 ls vxLr 1991 rd izfrekg dh nj ls 4560 $ 3040 ¾ 7600 #i;k ¼2½ fdjk;k flrEcj 1991 ls vxLr 1992 rd 399@& #ñ izfrekg dh nj ls ¾ 4788@& #i;k ¼3½ fdjk;k flrEcj 1992 ls vxLr 1993 rd 419@& #ñ izfrekg dh nj ls ¾ 5028@& #i;k ¼4½ fdjk;k flrEcj 1993 ls vxLr 1994 rd 440@& #ñ izfrekg dh nj ls ¾ 5280@& #i;k ¼5½ fdjk;k flrEcj 1994 ls vxLr 1995 rd 462@& #ñ izfrekg dh nj ls ¾ 5544@& #i;k ¼6½ fdjk;k flrEcj 1995 ls vxLr 1996 rd 485@& #ñ izfrekg dh nj ls ¾ 5820@& #i;k ¼7½ fdjk;k flrEcj 1996 ls vxLr 1997 rd 509@& #ñ izfrekg dh nj ls ¾ 6108@& #i;k ¼8½ fdjk;k flrEcj 1997 ls vxLr 1998 rd 534@& #ñ izfrekg dh nj ls ¾ 6408@& #i;k 5. The plaintiff has sent a notice on 10th October, 1997, which was duly served upon the defendant on 14th October, 1997 determining the tenancy of the defendant and allowing him 30 days’ time to vacate the premises, but the defendant neither vacated the premises nor paid the rent and as such he has become a defaulter and is liable to be evicted. The tenancy having been terminated from 15th November, 1997, the defendant denied to be the unauthorized occupant from 15th November, 1997. In paragraph 5 of the plaint, it has been stated that though the rent was due from 1990, but since it has become time barred, therefore, the rent is being claimed from 18th August, 1995 to 15th November, 1997 for a total sum of Rs. 13462.20 and thereafter for unauthorized occupation of the shop from 15th November, 1997 to 18th August, 1998 the damages have been claimed to the extent of Rs. 4854.40. 13462.20 and thereafter for unauthorized occupation of the shop from 15th November, 1997 to 18th August, 1998 the damages have been claimed to the extent of Rs. 4854.40. The total amount which was claimed by the plaintiff, therefore, was to the extent of Rs. 17,372.60. 6. Apart from the above, the plaintiff is also entitled for the amount paid towards lawyers fees, court-fee as well as 9% interest. 7. A written statement was filed by the defendant denying the averments contained in the plaint. It was stated that the defendant is not a defaulter and has paid the rent to the plaintiff. It has also been stated that proper notice has not been served by the plaintiff on the defendant, therefore, suit is liable to be dismissed. 8. On behalf of the plaintiff a replica was filed, where in paragraph 1, 2 and 3 the description of the tenancy was sufficiently explained by paper no. 73-Ga dated 18th July, 2004. The same is quoted below :- ß1- ;g fd oknh mijksDr }kjk izLrqr okni= esa in lañ 1 esa of.kZr if”pe fn”kk esa “kCn nqdku Hkwyo”k fdjk,ukes esa] tks fd oknh ,oa izfroknh ds e/; fu’ikfnr gqvk Fkk] of.kZr dj fn;k x;k] tcfd mDr “kCn nqdku u gksdj xsV okfnuh gSA fdjk;kukek o uksfVl esa of.kZr if”pe fn”kk esa nqdku ¼Lo;a okfnuh½ ds LFkku ij xsV okfnuh gksuk pkfg,] ftldk izfroknh mijksDr fdjk,nkj jgk gS vkSj mldh fdjk,nkjh uksfVl }kjk lekIr dh tk pqdh gSA 2- ;g fd fdjk,nkj] uksfVl o okni= esa if”pe fn”kk esa of.kZr nqdku ds LFkku ij xsV “kCn gksuk pkfg, Fkk] tks fd ys[ku dh xyrh ls nqdku fy[k fn;k x;kA 3- ;g fd fookfnr nqdku izfroknh us Jh jru eksVokuh dks f”kdeh fdjk,nkjh ij mBk nh gS] vkSj jru eksVokuh fookfnr nqdku esa viuk ihñlhñvksñ@f”kok gSyks IokbaV ds uke ls rFkk tSujsVj lSV o QksVks LVsV rFkk dksfj;j dk O;olk; dj jgk gS vkSj ijekuUn izfroknh mijksDr us viuk dUQSD”kujh dk dkjksckj fcYdqy lekIr djds fookfnr nqdku mDr jru eksVokuh dks f”kdeh fdjk, ij mBk fn;k gS] vr% izfroknh fookfnr nqdku ls csn[ky fd, tkus ;ksX; gSAÞ 9. The defendant has also replied the aforesaid replica stating in paragraph to the following effect :- ß2- ;g fd jsifydk in lañ 2 drbZ Lohdk;Z ugha gSA ;g dHkh lEHko gh ugha gks ldrk fd oknuh viuh nqdku dh pkSgnh gj txg xyr gh fy[ks cfYd okLrfodrk ;g gS fd oknuh dh lHkh nqdkuksa dh pkSgnh rhu rjQ ls ,d tSlh gksus dk Qk;nk mBk dj o’kZ 1997 esa gq, fdjk;sukes ds vk/kkj ij izfroknh dh orZeku nqdku dks [kkyh djokuk pkgrh gSA 3- ;g fd jsifydk dk in lañ 3 Lohdk;Z ugha gSA Jh jru eksVokuh tks fd izfroknh dk lxk HkkbZ izkjEHk ls gh izfroknh ds lkFk feydj O;olk; djrk pyk vk;k gSA rFkk nksuksa ?kjksa dk [kpkZ blh nqdku dh bude ls pyrk gSA izfroknh }kjk ihñlhñvksñ rFkk QksVks LVsV e”khu Hkh mDr nqdku ij yxk;h gqbZ gSA nqdku esa vR;f/kd dk;Z gksus ds dkj.k jru eksVokuh ¼izfroknh dk lxk HkkbZ½ Hkh izfroknh ds lkFk nqdku esa cSBrk gSA izfroknh }kjk fdlh Hkh O;fDr dks ;g nqdku dHkh fdjk;snkjh ij ugha nh xbZ gSAÞ 10. In the plaint, the plaintiff has stated that he is the owner of the shop in dispute and the defendant is the tenant of the said shop. Relevant paragraphs 1 and 2 of the plaint are quoted below : ß1- ;g fd oknh mijksDr dh ,d fdrk nqdku okds LFkku [kVhek] esa 10 x 15 fQV rglhy [kVhek ftyk m/keflag uxj esa fLFkr] ftlds iwjc esa & nqdku Lo;a okfnuh dh if”pe esa & nqdku Lo;a okfnuh dh mÙkj & okfnuh dk xksnke nf{k.k & ihñMCywñMhñ vkjkth ;okn esas jksM] dh ekfyd o yS.MykSMZ gSA 2- ;g fd izfroknh oknh dh mDr nqdku of.kZr iSjk uañ 1 esa eqcfyx 380 #i;s izfrekg dh fdjk;snkj FkhA oknh o izfroknh ds chp ;g r; gqvk FkkA oknh o izfroknh ds chp r; gqvk Fkk fd fdjk;s esa 5 izfr”kr izfro’kZ c<+ksÙkjh gksrh jgsxhAÞ 11. The defendant in its reply has stated to the following effect :- 1- ;g fd nkos dk in lañ 1 Lohdk;Z ugha gS oknh }kjk uksfVl ,oa okn i= esa nh xbZ pkSgnh dk fooj.k drbZ xyr gSA rFkk izfroknh okfnuh dh nqdku uañ 2 ftldh pkSgnh nkos ds in la[;k 1 esa fy[kh gS dk fdjk;snkj ugha gS uksfVl ,oa nkok nqdku uañ 2 ls lEcfUèkr gksus ds dkj.k nkok fujLr gksus ;ksX; gSA 2- ;g fd nkos dk in lañ 2 ftl rjg rgjhj fd;k gS Lohdk;Z ugha gS ;g fd oknuh ,oa izfroknh ds chp fdlh Hkh rjg 5 izfr”kr c<+ksÙkjh okyh ckr ugha gqbZ FkhAÞ 12. As will appear from the aforesaid paragraphs of the plaint as well as of the written statement, the defendant has admitted the plaintiff as the owner and the defendant being the tenant of the plaintiff. The dispute was only with regard to the boundary. 13. On behalf of Heera Singh, an affidavit was filed stating therein that the defendant is the defaulter and he has also proved the receipts by which the defendant has paid the rent from time to time. Relevant paragraphs are quoted below :- 4- ;g fd izfroknh dh nqdku dk uke nhikyh dUQSD”kujh FkkA okfnuh ds uke dh jlhn cqd ls fdjk;k olwyh jlhn lañ 152 fnukad 7-10-86 FkhA ekg flrEcj dk fdjk;k 330@& #ñ 28 x jlhn esa eq> “kiFkdrkZ ,oa izfroknh Jh ijekuUn ds gLrk{kj gSaA jlhn lañ 160 fnukad 5-1-1987] jlhn lañ 164 fnukad 3-2-1987] jlhn lañ 176 fnukad 12-4-1987 tks Øe”k% i=koyh esa dkxt lañ 29x] 30x ,oa 31x gSaaA bu lHkh jlhnksa ij eq> “kiFkdrkZ ,oa izfroknh ijekuUn ds gLrk{kj gSaA 5- ;g fd jlhn lañ 32x ls 35x fnukad 16-6-87] 10-7-87] 4-8-87 o 26-5-88 fdjk;s dh jlhn uañ 188] 199] 196 o 202 gSa ftu ij eq> “kiFkdrkZ ,oa izfroknh Jh ijekuUn ds gLrk{kj gSaA 6- ;g fd jlhn lañ 37x ls 40x rd fnukad 9-7-88] 17-8-88] 17-8-88 o 8-9-88 ij “kiFkdrkZ ds gLrk{kj gSaA jlhn lañ 35x ls 39x ij [ktkaph ds gLrk{kj gSa ftudks eSa igpkurk gw¡A 7- ;g fd jlhn lañ 293] 297] 309] 314 fnukad 30-1-89] 14]3]89] 14]8]89 o 10-11-89 tks fd i=koyh esa dkxt lañ 41x] 42x] 43x ,oa 44x gSaA mDr lHkh jlhnksa ij eq> “kiFkdrkZ o Jh ijekuUn izfroknh ds gLrk{kj gSaAÞ 14. The receipts have also been proved by Sri Rajendra Singh paper No. 84-Ga. Relevant paragraphs are quoted below :- ß3- ;g fd “kiFkdrkZ us okfnuh ds ;gka lu~ 1985 ls 1989 rd lqijokbZtj dk dke fd;kA “kiFkdrkZ ds lkeus fnukad 1-8-1987 dks okfnuh Jherh nqxkZorh o izfroknh Jh ijekuUn ds chp ,lñMhñ,eñ dksVZ [kVhek esa ,d fdjk;kukek fy[kk x;k FkkA mDr fdjk;kukek VkbZi fd;k x;k Fkk tks i=koyh esa dkxt lañ 26x ls 28x@2 gSA 4- ;g fd mijksDr of.kZr fdjk;sukes dks VkbZi djkus ds mijkUr ml ij izfroknh Jh ijekuUn o okfnuh Jherh nqxkZorh us gLrk{kj fd;s FksA nksuksa gLrk{kj vaxzsth esa fd;s x;sA mDr fdjk;sukes ds izFke i`’B ij Hkh mDr nksuksa us vius&vius gLrk{kj fd;s FksA mDr fdjk;sukes ds i`’B&2 ij xokg ds :i esa eq> “kiFkdrkZ ds Hkh gLrk{kj gSaA eq> “kiFkdrkZ }kjk mDr gLrk{kj fdjk;kukek lquus ds ckn fd;s x;s ,oa rRi”pkr nwljs xokg Jh ujnso “kekZ us Hkh vius gLrk{kj mlh le; fdjk;kukek lqudj fd;s FksA 5- ;g fd fdjk;ukek tks fnukad 1-8-1987 dks fy[kk x;k Fkk o 31-7-1989 rd ds fy;s Fkk bldh lHkh “krs± nksuksa i{kksa dks ekU; FkhaA 6- ;g fd i=koyh ij miyC/k dkxt lañ 37x ls 39x jlhnksa ij eq> “kiFkdrkZ ds gLrk{kj gSaAÞ 15. As will appear from paragraph 3 of the replication, the plaintiff has also stated regarding the sub-letting of the shop to one Ratan Motwani and the said replication was taken on the record and the said replication was taken on the record and the defendant was also given opportunity to rebut the same. He has filed a reply to the replication and in paragraph 3 of the reply, it has been admitted that Sri Ratan Motwani is the real brother and both are carrying on the business jointly. Paragraph 3 to that effect is quoted below : ß3- ;g fd jsifydk dk in la[;k 3 Lohdk;Z ugha gSA Jh jru eksVokuh tks fd izfroknh dk lxk HkkbZ izkjEHk ls gh izfroknh ds lkFk feydj O;olk; djrk pyk vk;k gSA rFkk nksuksa ?kjksa dk [kpkZ blh nqdku dh bude ls pyrk gSa izfroknh }kjk ihñlhñvksñ rFkk QksVks LVsV e”khu Hkh mDr nqdku ij yxk;h gqbZ gSA nqdku esa vR;f/kd dk;Z gksus ds dkj.k jru eksVokuh ¼izfroknh dk lxk HkkbZ½ Hkh izfroknh ds lkFk nqdku esa cSBrk gSA izfroknh }kjk fdlh Hkh O;fDr dks ;g nqdku dHkh fdjk;snkjh ij ugha nh xbZ gSAÞ 16. On behalf of the plaintiff, one Naveen Chand son of the plaintiff was examined, who has deposed regarding the arrears of rent right from January, 1990 and has also stated that a notice was duly served upon the defendants. 17. One Sri Heera Singh was examined as P.W.2. He has deposed regarding the notice having been served and the defendant is the defaulter and he has not paid the rent since January, 1990. 18. One Sri Rajendra Singh was examined as P.W. 3, who has deposed about 5% per year increase in the rent. 19. The trial Court has framed as many as seven points for determination to the following effect : ß1- D;k okfnuh }kjk fnyk;k x;k uksfVl fnukad 10-10-97 tks fd izfrokn dks fnukad 14-10-1997 dks izkIr gqvk] esa fookfnr lEifÙk dh pkSgn~nh xyr fy[kus ds dkj.k fnyk;k x;k uksfVl voS/k gS vkSj D;k bl uksfVl ds vk/kkj ij izfroknh dh fdjk;snkjh lekIr ugha gks ldrh\ 2- D;k okfnuh }kjk nk;j okn&i= esa fookfnr nqdku dh pkSgn~nh xyr fy[kh gS vkSj d;k bl dkj.k okfnuh dk okn fujLr gksus ;ksX; gS\ 3- D;k izfroknh dh rjQ fnukad 01-01-90 ls fdjk;k cdk;k gS] vxj gk¡ rks mldk izHkko\ 4- D;k i{kksa ds e/; izfro’kZ fdjk;s dh /kujkf”k esa 5 izfr”kr dh c<+ksÙkjh fd;k tkuk fu/kkZfjr fd;k x;k Fkk] vxj gk¡ rks mldk izHkko\ 5- D;k izfroknh /kkjk&20¼4½ ;wñihñ ,DV 13@1972 ds vUrxZr ykHk izkIr djus dk vf/kdkjh gS\ 6- D;k izfroknh us fookfnr lEifÙk dks Jh jru eksVokuh dks f”kdeh fdjk;s ij ns fn;k] vxj gk¡ rks mldk izHkko 7- vuqrks’k\Þ 20. So far as the point nos. 1 and 2 are concerned, the finding has been recorded by the Judge Small Cause Court that the shop no. 1 alone was let out to the defendant and the tenancy was started from 1st January, 1990. The said finding is quoted below : ßizfroknh ds mijksDr Li’Vhdj.k dks] okfnuh }kjk fnyk;s x;s uksfVl fnukad 10-10-97 esa vafdr dFku fd fdjk;snkjh fnukad 01-01-1990 ls vkjEHk gqbZ] esa cy feyrk gSA vr% Li’V :i ls ftl le; fnukad 01-01-90 dks izfroknh dh fdjk;snkjh iqu% vkjEHk gqbZ] ml le; nqdku uañ 1 dks gh mls fdjk;s ij fn;k x;k Fkk] nqdku uañ 2 dks ughaAÞ 21. As will appear from the aforesaid finding, the Judge Small Cause Court has observed that the defendant is a tenant of the shop no. As will appear from the aforesaid finding, the Judge Small Cause Court has observed that the defendant is a tenant of the shop no. 1 and not of shop no. 2 and the tenancy started from 1st January, 1990. So far as issue no. 2 is concerned, Judge Small Cause Court has recorded the finding that since the plaintiff has sent the notice for the shop no. 2 and the boundary which has been given in the notice was not correct, therefore, in absence of a proper notice, the suit was liable to be dismissed. 22. The Judge Small Cause Court further proceeded by recording a finding as to whether the defendant is a defaulter from 1st January, 1990. A finding was recorded that the rent is due from 1st January, 1990 and the defendant has failed to pay the rent as required by the plaintiff in order to get the immunity form the eviction. Further, the defendant has not deposited 9% interest, court fee as well as time barred rent. The said finding is quoted below : ßfof/k dk ;g lqizfrf’Br fl)kUr gS fd vxj dksbZ fdjk;snkj vf/kfu;e dh /kkjk 20¼4½ dk ykHk izkIr djuk pkgrk gS rks mls le; lhek ls ckf/kr fdjk;s dks Hkh fcuk fdlh “krZ 9 izfr”kr lkykuk C;kt ds lkFk] [kpkZ eqdnek ,oa odhy dh Qhl ds lkFk tek djuk gksxka Lohdk;Z :i ls izfroknh us #i;s 15]500@& dh /kujkf”k fnukad 01-10-97 ls 01-06-2004 rd dk dfFkr cdk;k fdjk;k tek fd;k gS vkSj bl fdjk;s dh x.kuk mlds }kjk #i;s 380@& ekgokj dh nj ls dh x;h gSA izfroknh us fnukad 01-01-90 ls 30-09-97 rd dksbZ fdjk;k U;k;ky; esa tek ugha djk;kA blds vfrfjDr 9 izfr”kr lkykuk dh nj ls C;kt] [kpkZ eqdnek ,oa odhy dh Qhl Hkh tek ugha djkbZ gSA vr% bl izdkj Li’V gks tkrk gS fd izfroknh vfèkfu;e dh /kkjk 20¼4½ ;wñihñ ,DV 13@1972 ds vUrxZr fdlh izdkj dk dksbZ ykHk izkIr djus dk vf/kdkjh ugha gSA rn~uqlkj okn fcUnq lañ 3 o 5 okfnuh ds i{k esa rFkk izfroknh ds fo#) fuLrkfjr fd;s tkrs gSaAÞ 23. The benefit of Section 20(4) of the U.P. Act No. 13 of 1972, therefore was not extended to the defendant while deciding the issue no. 6. A finding was recorded that the shop has been subject to his brother. Thus the finding has been recorded against the defendant. The benefit of Section 20(4) of the U.P. Act No. 13 of 1972, therefore was not extended to the defendant while deciding the issue no. 6. A finding was recorded that the shop has been subject to his brother. Thus the finding has been recorded against the defendant. The same is quoted below : ß17- vr% mijksDr fopkj ls Li’V gks tkrk gS fd izfroknh us fookfnr lEifÙk dks okfnuh dh lgefr ds fcuk vius HkkbZ dks f”kdeh fdjk;s ij fn;k gS vkSj og bl vk/kkj ij csn[ky gksus ;ksX; gSA rn~uqlkj okn fcUnq lañ 6 okfnuh ds gd esa rFkk izfroknh ds fo#) fuLrkfjr fd;k tkrk gSAÞ 24. On the basis of the defective boundary mentioned in the, Judge Small Cause Courts has dismissed the suit of the plaintiff. Hence, the revision was preferred by the plaintiff as well being Revision No. 62 of 2003, Revision No. 90 of 2005 was preferred by the tenant against the findings recorded against him. 25. Counsel for defendant-Permanand has stated that the notice was defective as the boundaries were wrong. 26. From the perusal of the plaint as well as written statement, it is evident that the plaintiff is the owner of the premises and the defendant is the tenant. This fact has not been denied in the written statement. In the replication, the same fact has been explained by the plaintiff. 27. Further the Judge Small Causes Court has recorded the finding that the defendant is the tenant of shop no. 1 alone and not of shop no. 2. 28. Section 116 of the Transfer of Property Act provides as under : “116. Estoppel of tenant and of licensee of person in possession.— No tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the license of the person in possession thereof, shall be permitted to deny that such person had a title to such person had a title to such possession at the time when such license was given.” 29. In Munnawar Vs. Addl. In Munnawar Vs. Addl. District Judge, Haridwar [2003 (2) ARC 608] after relying upon the judgment of Joginder Singh and another v. Smt. Joginder and others, JT 1996 (1) SC 467 : 1996 SCFBRC 503, it has been held as under : “12. In the case of Joginder Singh and another v. Smt. Joginder and others, JT 1996 (1) SC 467 : 1996 SCFBRC 503, the Apex Court has relied upon the provisions of Section 116 of Evidence Act and has held that no tenant of immovable property can be allowed to deny the title of the landlord. The observations are quoted below : “This is a settled view that having regard to the provisions of Section 116 of the Evidence Act no tenant of immovable property or person claiming through such tenant shall, during the continuance of the tenancy, be permitted to deny the title of the owner of such property. In this connection, it would be relevant to make a reference to the decision of this Court in Veerraju v. Venkanna, 1966 (1) SCR 831: AIR 1966 SC 629, wherein this Court, with reference to the decision of Privy Council took the view as under : “A tenant who has been let into possession cannot deny his landlord’s title, however, defective it may be, so long as he has not openly restored possession by surrender to his landlord.” 30. In Maroti Vs. Tulsiram and another 1995 SCFBRC 1, the Apex Court has observed as under : “6. The findings recorded by the High Court and the trial Court were that the appellant had entered into the possession as a tenant and he is estopped to deny the title of the trust by operation of Section 116 of the Indian Evidence Act.” 31. The Apex Court in Shanti Devi Nigam Vs. Madan Lal Gupta [2004 SCFBRC 402] has held that where the local act provides that the defendant is entitled to receive the notice under the Special Act, notice under Section 106 of the T.P. Act is not necessary. The Apex Court in Shanti Devi Nigam Vs. Madan Lal Gupta [2004 SCFBRC 402] has held that where the local act provides that the defendant is entitled to receive the notice under the Special Act, notice under Section 106 of the T.P. Act is not necessary. Relevant portion of the judgment is quoted below : “By the impugned judgment, the High Court was of the view that the notice issued by the landlady was not in accordance with law and the High Court was of the view that the landlady should have issued proper notice under Section 106 of the Transfer of Property Act and as the notice of demand for eviction, was not ending with the month of the tenancy; the same was held to be not in accordance with the mandate of Section 106 of the Transfer of Property Act and the eviction ordered by the trial Court was set aside and the matter was remitted for the purpose of re-determination of the arrears of rent. 4. The Counsel for the appellant submits that under Uttar Pradesh Urban Buidlings (Regulation of Letting, Rent and Eviction) Act, 1972 notice under Section 106 was not required for seeking eviction under Section 20 of the Act. It is also pointed out that under Section 20(2) (a) specific notice is provided for seeking eviction on the ground of arrears of rent and the notice issued by the appellant landlady seeking eviction under Section 20(2) (a) of the Act fulfilled the conditions required under law. Our attention was also drawn to the decision of the Constitution bench of this Court in V. Dhanapal Chettiar v. Yasodai Ammal, (1979) 4 SCC 214 : 1980 ARC 1, wherein the very same question was considered in detail and it was held that notice under Section 106 of the Transfer of Property Act was not required to be sent for seeking eviction under the provision of the Tamil Nadu Building (Lease and Rent Control) Act, 1960. The provisions in Uttar Pradesh Act are in pari material with Tamil Nadu Building (lease and Rent Control) Act, 1960 and the decision applies in all force. Therefore, the decision rendered by the High Court is not sustainable in law. We set aside the judgment of the High Court. The provisions in Uttar Pradesh Act are in pari material with Tamil Nadu Building (lease and Rent Control) Act, 1960 and the decision applies in all force. Therefore, the decision rendered by the High Court is not sustainable in law. We set aside the judgment of the High Court. The eviction order passed by the trial Court is affirmed and as the matter is now pending before the trial Court, the trial Court may pass appropriate orders in accordance with observations made above.” 32. Counsel for the plaintiff has also referred the judgment of Mukundi Lal Vs. Srimati Ram Pyagi 1971 ALJ 137 where the replica has been filed and the same has been admitted. The defendant cannot have any objection regarding the boundaries alone and there is no need of amending the plaint. Relevant paragraph 29 of the aforesaid judgment is quoted below : “29. In the instant case since no objection had been raised by the defendant to the filing of the replication by the plaintiff and since the defendant never alleged either in his written statement or before the courts below that any prejudice had been caused to him by filing the replication by the plaintiffs and in view of the fact that both the parties knew what the case of the parties was and since they ed evidence it cannot be said that without amending the plaint plaintiff’s suit could not be decreed. The plaintiffs filed the present suit on the basis of the Parcha Ex. 4 dated 5th March 1957. Ex. 4 is a relevant document; and reads as follows :- “Shri Patri Bhai Musammad Ram Dei Bibi Jauje Bal Mukand Ko Jog Likhi Bhagwan Das Prag Das Ki ram ram bachne. Asga rupia 2200 ankan bais sau marfat Ram Nath Dalai Ke aap se udhar liye so apke khata jama kare. Miti Bhadon Sudi 7 Sambat 2013.” 33. Counsel for the defendant-Parmanand has referred Chimanla Vs. Mishrilal AIR 1985 SC 136 and State of Rajasthan and another v. Mohammed Ikbal and others AIR 1999 Rajasthan 169 on the footing that the pleadings introduced by way of rejoinder should not be inconsistent and at variance with the original taken in the plaint. Further in Chimanlal Vs. Mishrilal (supra), it has been observed that the notice should contain the entire accommodation and not lesser part of it. 34. Further in Chimanlal Vs. Mishrilal (supra), it has been observed that the notice should contain the entire accommodation and not lesser part of it. 34. So far as State of Rajasthan and another v. Mohammed Ikbal and others (supra) is concerned, the plea with regard to the rejoinder is wholly academic inasmuch as once a finding has been recorded that the plaintiff is the owner and the admittedly, the defendant is the tenant of only one shop and the notice having been sent terminating the tenancy, there is no further requirement with regard to the specification and the plaintiff having explained the same in the boundary as well as statement, there is no further requirement. 35. Both the aforesaid judgments are not applicable to the facts of the present case in view of the fact that there is no denial of the relationship of landlord and tenants. 36. Counsel for the plaintiff-Durgawati has referred application filed under Section 21 (1) (a) of the U.P. Act No. 13 of 1972, where it has not been denied that the defendant is not the tenant. 42. In view of the above, I find correct boundaries as already given in proceedings under Section 21(1) (a) of the U.P. Act No. 13 of 1972. The defendant admits himself to be the tenant of the plaintiff. 37. However, so far as the sub-letting is concerned, a finding has been recorded that the defandant has sub let. Section 3(g) provides that even brother does not included in the definition of the family. Section 3(g) is reads as under : “(g) “family”, in relation to a landlord or tenant of a building, means, his or her — (i) spouse, (ii) male lineal descendants, (iii) such parents, grandparents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally residing with him or her, and includes, in relation to a landlord, any female having a legal right of residence in that building;” 38. Further in Sunil Kumar Muklherji Vs. Kabiraj Bindu Madho Bhattacharya and others 1978 ARC 74 as well as in Subhash Chand Jain Vs. Ist Additional District & Sessions Judge, Saharanpur and others 1989 SCFBRC 174, it has been held by the Apex Court that in order to get immunity from eviction, time barred rent has to be deposited. 39. In Sunil Kumar Muklherji Vs. Kabiraj Bindu Madho Bhattacharya and others 1978 ARC 74 as well as in Subhash Chand Jain Vs. Ist Additional District & Sessions Judge, Saharanpur and others 1989 SCFBRC 174, it has been held by the Apex Court that in order to get immunity from eviction, time barred rent has to be deposited. 39. In Sunil Kumar Muklherji Vs. Kabiraj Bindu Madho Bhattacharya and others 1978 ARC 74, it has been observed as under : “6. The language of this clause is differently worded. Had the intention been to insert the explanation with retrospective effect the words ‘and be deemed always to have been inserted would have been used in this clause as the words ‘and be deemed always to have been substituted’ were used in clause (b) (i). Accordingly, I am of opinion that the explanation which was inserted by U.P. Act No. 28 of 1976 cannot be given retrospective operation. The deposit which was made on December 8, 1973 in pursuance of the tender submitted on December 7, 1973 would be deemed to be a deposit on December 7, 1973. See K.P. Jain v. Om Prakash 1966 A.L.J. In this way the amount was deposited on that very date which was the date fixed for issues. This would be the date of first hearing in view of the decision of this Court in Ladly Prasad v. Ram Shah Billa and others 1976 (2) A.L.R. 8, it is true that in ladly Prasad’s case (supra) the provisions of Order XV, Rule 5 as added by U.P. Civil Laws Amendment Act, 1972 had come up for consideration but in my opinion there is no reason why the same interpretation to the words ‘first hearing’ in sub-section (4) of section 20 of the Act may not be given as has been given to those very words as used in Order XV, Rule 5 in Ladly Prasad’s case. Accordingly, the applicant was entitled to be relieved against the liability of eviction from the premises in question on account of the aforesaid deposit having been made by him. 7. Accordingly, the applicant was entitled to be relieved against the liability of eviction from the premises in question on account of the aforesaid deposit having been made by him. 7. Counsel for the applicant urged that even though the applicant was entitled to be relieved against his liability from eviction on account of the aforesaid deposit the plaintiff opposite parties were not entitled to be paid over the entire amount aforesaid inasmuch as the deposit included the rent even in respect of a period for which the claim had become barred by time. In my opinion there is no substance in this submission in view of the decision of this Court in K.G. Trust v. R. Chandra 1977 A.L.J. 334 where it was held. The word ‘due’ occurring in Section 20(4) of the Rent Control Act of 1972 has entirely a different context. It occurs in a section which provides, not an alternative right to relief against eviction. This right is founded upon the condition that the rent due must be paid. It confers no discretion on the tenant. The provision is explicit and mandatory. Unless the condition is fulfilled, the right to relief against eviction does not accrue. 8. This, coupled with the fact that a time-barred arrears of rent continues to remain an undischarged debt, clearly means that the phrase ‘entire amount of arrears of rent due ‘would include arrears of rent, recovery of which has become time-barred within meaning of clause (4) of Section 20’. 40. The defendant has failed to deposit the time-barred rent and as such on the ground of default alone, the plaintiff has been able to succeed in proving that the defendant is a defaulter and, therefore, finding recorded by the Judge Small Cause Court requires no interference in the order by which the eviction has been refused on the ground of notice. 41. The defendant has filed the revision No. 90 of 2005 on the ground of payment of arrears and sub-letting, therefore, the same is dismissed. However, counsel for the defendant-Sri Parmanand has sought some time to vacate the premises in dispute. Time is allowed to the defendant up to 31st August, 2007 provided : (a) he furnishes undertaking on or before 31st May, 2007 to vacate the premises in dispute on or before 31st August, 2007. However, counsel for the defendant-Sri Parmanand has sought some time to vacate the premises in dispute. Time is allowed to the defendant up to 31st August, 2007 provided : (a) he furnishes undertaking on or before 31st May, 2007 to vacate the premises in dispute on or before 31st August, 2007. (b) he pays the entire arrears of rent/damages/mesne profits on or before 31st May, 2007. (c) he pays on damages regularly in the first week of every month until the premises in question is vacated. On failure of the aforesaid conditions, the plaintiff-landlord shall have liberty to execute the decree against the defendant-tenant. 42. Revision No. 62 of 2005 is allowed. The suit for eviction is also decreed. No order as to costs.