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2007 DIGILAW 219 (UTT)

GANESH UPADHYAYA v. PRATIBHA CHANDRA

2007-04-25

RAJESH TANDON

body2007
JUDGMENT Hon’ble Rajesh Tandon, J. Heard Sri M.C. Kandpal, Sr. Advocate, assisted by Sri S.S. Chaudhari for the revisionist and Sri Sarvesh Agarwal, counsel for the respondent. 2. Present revision has been preferred against the judgment and decree dated 18.10.2004 passed bys the District Judge, Nainital in S.C.C. Suit No. 9 of 2000. 3. Briefly stated the plaintiff respondent Smt. Pratibha Chandra has filed a suit against the defendant appellant for recovery of the rent and damages for Rs. 27,000/- and for eviction of the defendant from the disputed premises. The defendant revisionist was the tenant on the dispute premises at the rate of Rs. 600/- per month with 25% increase after 48 months. According to the plaintiff, the defendant has failed to pay the rent after 1.2.1994. The plaintiff sent notices to the defendant on 29.4.99, 27.8.1999 and 7.10.1999 but the defendant refused to accept the notices. The plaintiff has sent the notice to the respondent by registered post on 7.1.2000 which was served on the defendant on 20.1.2000 but the defendant has neither vacated the suit premises nor paid arrears of rent, hence the suit. 4. Defendant has filed the written statement and has stated that the plaintiff is not the landlord of the premises in suit. The shop was constructed on the Nazul land and the owner of that land is Nagar Palika. The defendant applied for free-hold of that land for which he has deposited money. Plaintiff is not the landlord of the disputed premises; therefore, no question of rent arises. 5. The trial Court on the basis of pleadings of the parties has framed the following issues : 1. Whether there is relation of landlord and tenant in between the parties? 2. Whether the Court has jurisdiction to hear the suit? 3. Whether the tenancy of the defendant has been determinated by way of a valid notice? 4. What amount of rent is due on the defendant? 5. Relief? 6. So far as the issue no. 1 with regard to the relationship of landlord and tenant is concerned, the trial Court has recorded the finding that there was agreement of rent executed by the parties which is paper no. 36-C/2. This paper has been duly proved as Ex. Ka-3. 5. Relief? 6. So far as the issue no. 1 with regard to the relationship of landlord and tenant is concerned, the trial Court has recorded the finding that there was agreement of rent executed by the parties which is paper no. 36-C/2. This paper has been duly proved as Ex. Ka-3. Thus there is sufficient evidence on record that the plaintiff is the landlord of the disputed premises and there was relationship of landlord and tenant between the parties. 7. So far as issued no. 2 is concerned, finding was recorded that the plaintiff has let out the disputed premises to the defendant by virtue of rent deed paper no. 36-C (Ex. Ka-3) and as such on the basis of principle of estoppel, the defendant cannot be permitted to deny the title of the plaintiff. 8. So far as issue no. 3 is concerned the same were decided in favour of the plaintiff and against the defendant. So far as the issue no. 4 is concerned the finding was recorded that no rent was paid by the defendant to the plaintiff from 1.2.1994 and the defendant is in arrears of rent to the tune of Rs. 72,000/-. 9. In paragraph 3 and 7 of the plain the plaintiff has stated as under : ;g fd izfroknh mijksDr us fnukad 1-2-1994 ls vk;Unk fdjk;s ,oa VSDl dh /kujkf”k okfnuh dks vnk ugha dh rFkk okfnuh mijksDr dk izfroknh ij fnukad 1-2-1994 ls fnukad 31-12-1999 rd fuEukuqlkj fdjk;k dh /kujkf”k cdk;k pyh vkrh gS fdjk;s dh vof/k fdjk;s dh nj izfrekg dqy /kujkf”k 1-2-94 ls 31-7-99 rd 600@& izfrekg 18000@& 1-8-99 ls 31-12-99 rd 750@& izfrekg 30750@& dqy /kujkf”k 48750@& #i;k 7- ;g fd mijksDrkuqlkj okfnuh dk izfroknh ds ftEes fnukad 1-2-94 ls fnukad 20-2-2000 rd dqy eqcfyx 50]000@& #i;k crkSj fdjk;k ,oa rRi”pkr okn izLrqr djus dh frfFk ,oa vk;Unk eqvkotk ostk bLrseky ,oa VSDl izkIr djus dh vf/kdkfj.kh gS fdUrq okfnuh mijksDr fof/kd :i ls rhu o’kZ dk fdjk;k izkIr djus dh vf/kdkjh gksus ds dkj.k orZeku okn rhu o’kZ ds fdjk;s dh olwyh gsrq izLrqr djrh gSA 10. The defendant in paragraph 13 of the written statement has stated as under : fd lR;rk ;g gS fd fookfnr nqdku utwy Hkwfe ij fufeZr gS ftl Hkwfe ds Lokeh uxj ikfydk ifj’kn gS izfroknh }kjk fookfnr Hkwfe ij nqdku cuk;h x;h gS vkSj ÝhgksYM dk;Zokgh ds fy, izfroknh }kjk #i;k Hkh tek fd;k x;k gS vkSj ÝhgksYM dh dk;Zokgh fopkjk/khu gSA 11. I have perused the evidence on record. The plaintiff has been examined as P.W. 1 who has deposed about the ownership and the arrears of rent against the defendant. 12. As pointed out by the Apex Court in its decision in the case Madan Mohan and another Vs. Krishan Kumar Sood, 1994 Supp. (1) SCC 437, that the Rent Acts do not give blanket protection for non payment of rent. This basic minimum has to be complied with by the tenants. Relying upon the case of Madan Mohan (supra) it has been held in the case Sukhanand Vs. IVth Addl. District Judge, Bulasndshahr 1993 (2) ARC 69 as under : “As observed by the Apex Court in its decision in the case of Madan Mohan and another vs. Krishan Kumar Sood, reported in JT 1993 (1) SC 162; 1993 SCFBRC 133, whatever protection the Rent Acts give, they do not give blanket protection for non-payment of rent. This basis minimum requirement has to be complied with by the tenants. The rent Acts do not contemplate that if one takes a house on rent he could continue to enjoy the same without payment of the rent. The onus to show payment of rent lies on a tenant. I respectively agree with the view taken by the learned Single Judge in the decision of this Court in the case of Mahesh Chandra Vs. Smt. Angoori Devi, reported in 1989 (1) ARC 540. Further mere oral testimony is not sufficient in this connection. In a case where the tenant comes forward with the allegations that the rent was paid but no receipt was issued with non explanation whatsoever, for not sending the rent by money order, then, in such a situation, the oral testimony of the tenant is regard to the payment of rent claiming discharge of the liability in this regard cannot be deemed to be worth reliance at all.” 13. In view of above the defendant was bound to pay rent to the plaintiff regularly. In view of above the defendant was bound to pay rent to the plaintiff regularly. The law does not permit the defendant to enjoy the house without payment of rent. 14. So far as the argument that Nagar Palika is the owner of the land in question, it is not open for the applicant to raise the plea in view of the judgment of the Apex Court in the case Dadan Bai vs. Arjundas, 1995 SC & F.B.R.C. 530. 15. Further the principles of estoppel also applies in this case. 16. 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 observation 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, 1996 (1) SCR 831 : AIR 1966 SC 629, wherein this Court, with reference to the decision of Privy Council took the view as under : “A tenance 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.” 17. 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.” 18. I find no illegality or irregularity in the order passed by the trial Court. 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.” 18. I find no illegality or irregularity in the order passed by the trial Court. Consequently, the revision deserves to be dismissed. However, counsel for the revisionist has prayed that some time may be allowed to the revisionist to vacate the premises. Liberty is given to the defendant-revisionist to vacate the premises in dispute by 30th September 2007. 19. Accordingly, the revision is dismissed with costs.