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2009 DIGILAW 2844 (ALL)

Phool Badan Verma v. Ram Badhaee

2009-08-13

PRAKASH KRISHNA

body2009
JUDGMENT Prakash Krishna, J 1. The present revision under Section 25 of Provincial Small Cause Courts Act, 1887 has been filed by the defendant tenant of SCC Suit No.4 of 2000 against the judgment and decree dated 13th of April, 2007 decreeing the suit in part for ejectment of defendant no.2 who is applicant in this revision and for recovery of arrears of rent since April, 1999 to April, 2001 at the rate of Rs.450/- per month, cost of Rs.440/- towards the notice. The decree furthe provides that in addition to the above, the said defendant is liable to pay mesne profit till the actual delivery of possession at the rate of Rs.450/- per month to the plaintiff no.1. 2. Ram Badhaee and his mother Smt. Mahesha Devi instituted suit No.4 of 2000 against Ashok Kumar Verma and his father Phool Badan Verma, the defendants no.1 and 2 on the pleas inter alia that the shop situate in house No.227, known as Mahesha Bhawan, Mohalla Sahadatpura, District Maunath Bhanjan was let out on a monthly rent of Rs.2500/-. It was stated that the said shop was taken on rent by Ashok Kumar Verma in pursuance of a Kabuliyatnama executed by him. The building wherein the shop in dispute is situate is a "newly constructed" building and it was assessed to municipal tax for the first time in the year 1999 and as such the provision of the U.P. Act No.13 of 1972, are not applicable. In addition, the rent being more than Rs.2,000/- per month, the provisions of the aforesaid Act are not applicable even otherwise also. The defendants no.1 and 2 being son and father colluded with each other and in spite of expiry of the period as fixed in the Kabuliyatnama dated 15th of January, 1996 and 2nd of January, 1997 has not vacated the disputed accommodation and has set up his father as a tenant. A suit No.1245 of 1999: Phool Badan and others Vs. Mahesha and others was filed for permanent injunction on the allegations that Phool Badan Verma is the tenant of the said shop and in order to prove the tenancy, telephone connections etc. were taken in the name of Phool Badan Verma. Shri Phool Badan Verma is claiming tenancy rights in pursuance of the oral agreement. Mahesha and others was filed for permanent injunction on the allegations that Phool Badan Verma is the tenant of the said shop and in order to prove the tenancy, telephone connections etc. were taken in the name of Phool Badan Verma. Shri Phool Badan Verma is claiming tenancy rights in pursuance of the oral agreement. The tenancy of the defendants has been terminated by giving to them a joint notice dated 31st of August, 2000 which has been served. It was further stated that it is plaintiff no.1, who is the exclusive owner and landlord of the said property, raised the constructions out of his own funds and neither the plaintiff no.2 nor her other sons have any right, title or interest therein. The notice dated 31st of August, 2000 was served on 2nd of September, 2000 but the defendants failed to vacate the disputed accommodation in spite of the expiry of the notice period and as such are entitled to get the pendente lite and future damages at the rate of Rs.2500/- per month till the date of actual delivery of possession. 3. The suit was contested by the defendants by filing separate written statements. The defendant no.1 denied the execution of the Kabuliyatnama dated 15.1.1996 or 2.1.1997 and pleaded that his signatures are either forged one or fabricated. He claimed that he was never the tenant of the property in question and has no concern with it. 4. The defendant no.2 in his separate written statement pleaded that the rate of rent was Rs.450/- per month and claims himself as tenant of the disputed shop and also admitted the filing of the suit No.1245 of 1999 for permanent injunction. The plea of the default raised in the plaint was controverted and denied. It was further pleaded that the disputed shop was constructed in the year 1984 and since then he is continuing as tenant as such provisions of the U.P. Act No.13 of 1972 are applicable. The property was purchased by the plaintiff no.2 by means of sale deed dated 31st of August, 1981 and the map for raising the construction was got sanctioned on 23rd of November, 1984 and after making the construction the shop was let out in December, 1984. He claimed that he is tenant on behalf of the plaintiff no.2. The property was purchased by the plaintiff no.2 by means of sale deed dated 31st of August, 1981 and the map for raising the construction was got sanctioned on 23rd of November, 1984 and after making the construction the shop was let out in December, 1984. He claimed that he is tenant on behalf of the plaintiff no.2. Further, it was pleaded that a sum of Rs.50, 000/- was deposited as advance with the plaintiff no.2 with the understanding that the said amount shall be refundable at the time of vacation of the disputed shop. 5. A replication was filed by the plaintiffs to which additional written statement was filed by the defendants. It is not necessary to notice the pleas raised therein in detail for the simple reason that in the present revision only two points which will be noticed at the appropriate place, have been urged. 6. The parties led evidence oral and documentary in support of their respective cases as noticed in the impugned judgment. It may be noticed that during the pendency of the suit the plaintiff no.2, Smt. Mahesha Devi, the mother of the plaintiff no.1 has expired who also represents the deceased. On the basis of the pleadings of the parties as many as nine issues were framed. The issues no.1 and 2 were decided jointly with the finding that the plaintiff no.2 was the owner and landlord during her life time and the defendant no.2, the present applicant, took the property in question on rent from her. Under issues no. 3 and 5 it has been found that the shop was let out to the defendant no.2 in the year 1989 and the date of construction of the building is 7th of April, 2000, the date on which the building was assessed for the first time as per the provisions of Section 2 (2) of the U.P. Act No. 13 of 1972. 7. Under issue no. 4, the court accepted the case of the defendant that the monthly rate of rent of the shop in dispute is Rs.450/- as pleaded by him and not Rs.2500/- as was alleged in the plaint. It was held that the defendant is not entitled to get benefit of Section 20(4) of the Act as the provisions of U.P. Act No.13 of 1972, are not applicable under issue no.6. It was held that the defendant is not entitled to get benefit of Section 20(4) of the Act as the provisions of U.P. Act No.13 of 1972, are not applicable under issue no.6. Under issue no.7 it was found that the suit is maintainable as small cause suit. No question of title is presently involved in the suit. Under issue no.8 it was held that the defendant tenant is not entitled to get the benefit of Section 114 of the T.P. Act. Ultimately, under issue no.10 the suit as mentioned above was decreed in part. 8. Heard Shri Umesh Narain Sharma, the learned Senior Counsel along with Shri A.K. Bajpai, Advocate, for the applicant and Shri R.C. Shukla and Shri P.K. Dubey, Advocates, for the plaintiff opposite parties. Shri Umesh Narain Sharma, learned Senior Counsel for the defendant tenant submits the following two points in support of the revision:- 1.The defendant applicant is entitled to get the benefit of Section 114 of the Transfer of the Property Act. 2.The finding recorded by the court below with regard to the date of construction of the building is incorrect as the map of the building was got sanctioned in the year 1983. Besides the above, no other point was urged. 9. Taking the first point first, the learned Senior Counsel for the applicant strenuously submits that it is a case of forfeiture of lease in view of the Kabuliyatnamas dated 15.1.1996 and 2.1.1997, the court below has erred in law in not extending the benefit of the deposits made by the applicant in the suit and wrongly denied the benefit as available to a tenant under Section 114 of the Transfer of the Property Act. Shri R.C. Shukla, learned counsel for the plaintiff opposite party, on the other hand, submits that it was the case of the defendant applicant that he took the premises in question on rent on the basis of oral agreement. The existence of the said Kabuliyatnama was disputed by the defendant no.1, who happens to be son of the defendant no.2. Indisputably, there is no written agreement in between the plaintiff no.2 and defendant no.2. This being the position, the contract of tenancy between the parties was of the nature of month to month tenancy and it has nothing to do with Section 111 (h) of the Act. 10. Indisputably, there is no written agreement in between the plaintiff no.2 and defendant no.2. This being the position, the contract of tenancy between the parties was of the nature of month to month tenancy and it has nothing to do with Section 111 (h) of the Act. 10. Section 114 of the T.P. Act provides for relief against forfeiture for non payment of rent. It provides that where a lease of immovable property has been determined by forfeiture for non payment of rent and the lessor chooses to elect the lessee, if at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrears, together with interest thereon and his full cost of suit or gives such security as the court thinks sufficient for making such payment within 15 days, the court may in lieu of a decree for ejectment, pass an order relieving the lessee against forfeiture; and thereupon the lessee shall hold the property leased as its forfeiture has not occurred. In the said section a rule of equity is enshrined. Covenant of forfeiture of tenancy for non payment of rent is regarded by the courts as merely a clause for securing the payment of rent. On a plain reading of Section 114 of the T.P. Act, it would be clear that the said Section applies where a suit for eviction of a tenant is instituted on the basis of forfeiture of lease under the T.P. Act. In other words it will not be applicable where the suit has been filed for the eviction of a tenant on the basis of statutory provision dealing specifically with the rights and obligations of a landlord and tenant, such as Section 20 (2) (a) of the U.P. Act No.13 of 1972. Section 20 of the U.P. Act No.13 of 1972 provides the grounds for eviction of a statutory tenant. As soon as a ground for eviction of a tenant is made out in the terms of provisions of Section 20 of the U.P. Act No.13 of 1972, the tenant is liable for eviction and he cannot fall back upon Section 114 of the Transfer of Property Act. 11. As soon as a ground for eviction of a tenant is made out in the terms of provisions of Section 20 of the U.P. Act No.13 of 1972, the tenant is liable for eviction and he cannot fall back upon Section 114 of the Transfer of Property Act. 11. Coming to the facts of the present case, the present applicant who himself claims as a tenant and it had been found so also, in the absence of any written lease, question of relief against forfeiture does not arise. it does not lie in the mouth of the defendant applicant to say that there was any Kabuliyatnama or lease in writing in his favour. At least he has filed none. On the other hand, his case was that he took the leased premises under oral agreement. The Kabuliyatnama or lease note filed on behalf of the plaintiffs was allegedly executed by the defendant no.1 (son of the defendant no.2) who denied and disputed it on the ground that his signatures on the said document is forged. Apart from the above, the alleged Kabuliyatnama is indisputably an unregistered document and the period mentioned therein has already expired. This being so, the contract of tenancy in between plaintiff no.2 and defendant no.2 was that of month to month tenancy. The tenancy being month to month tenancy has been rightly determined by giving a notice as required under Section 106 of Transfer of the Property Act. The trial court has rightly observed that there being no lease agreement between the parties, the question for forfeiture of lease or relieving the tenant from forfeiture does not arise. Section 111 of Transfer of the Property Act provides for determination of lease. The word "forfeiture" has been used only in Section 111 (g) of the Transfer of the Property Act. 12. A learned Single Judge in U.P. State Transport Corporation Vs. IInd Additional District Judge: 1981 ALJ 608 has held that there being no agreement of lease existing between the parties and lease is not forfeited for non payment of rent, Section 114 of the Transfer of the Property Act does not apply. The aforestated judgment has been followed in subsequent judgments such as Shrikant Gupta Vs. Third Additional District Judge, Moradabad 1995 (1) ARC 212. 13. Strong reliance was placed upon a judgement of the learned Single Judge in the case of Rajesh Sharma Vs. The aforestated judgment has been followed in subsequent judgments such as Shrikant Gupta Vs. Third Additional District Judge, Moradabad 1995 (1) ARC 212. 13. Strong reliance was placed upon a judgement of the learned Single Judge in the case of Rajesh Sharma Vs. IIIrd Additional District Judge 2008 (9) ADJ 171 by the learned Senior Counsel. A close reading of the said judgment shows that it is distinguishable on facts and was rendered in a different factual context. In the said case there was a registered lease agreement between the parties, which makes all the differences. 14. There the judgment delivered in the case of Vinod Kumar Rastogi Vs. VIIth Additional District and Sessions Judge, 2003 (2) ARC 377 wherein there was no registered agreement,was distinguished. The facts of the case on hand are parallel to the facts of the case of Vinod Kumar Rastogi as herein also as found above, there is no rent agreement or deed between the applicant and the landlord. The another case relied upon by him is unreported judgment delivered in the Writ Petition No.28207 of 2009 : Jaibun-Nisha (since deceased) and others Vs. Special Judge (Anti Corruption) and others dated 28th of May, 2009. The said judgment supports the stand of the landlord opposite party rather than the applicant. 15. The relevant portion is extracted below:- "It is by now well settled that suit for ejectment against a tenant is not maintainable unless a previous notice to quit or notice of demand of possession either under section 106 or 111(g) of the Transfer of Property Act (here-in-after referred to as T.P. Act) is given. A tenant is entitled for benefit or protection of section 114 of the T.P. Act only if the tenancy is determined by forfeiture under section 111 (g) of the T.P. Act. But termination of tenancy simplicitor through a notice under section 106 of the T.P. Act would not attract the provision. Recently, a learned Single Judge of this Court in the case of B.R. Trading and Company and others Vs. Dharam Raj Sahu [2008 (3) A.R.C. 148], after considering large number of decisions of this Court and the Apex Court, has reiterated the aforesaid principle. Though a copy of the notice has not been annexed, it is apparent from the record that the tenancy was terminated by a simplicitor notice under section 106 of the T.P. Act. Dharam Raj Sahu [2008 (3) A.R.C. 148], after considering large number of decisions of this Court and the Apex Court, has reiterated the aforesaid principle. Though a copy of the notice has not been annexed, it is apparent from the record that the tenancy was terminated by a simplicitor notice under section 106 of the T.P. Act. The petitioner has failed to demonstrate that the tenancy was determined by forfeiture. Accordingly, the argument cannot be accepted." 16. This judgment supports the view which is being taken by me here. It does advance the case of the applicant. 17. In view of the discussion, the trial judge has rightly found that on the facts of the present case, the defendant no.2 - applicant is not entitled to get benefit of Section 114 of the Transfer of the Property Act. The point no.1 is, therefore, decided accordingly. 18. So far as the point no.2 relating to the date of construction is concerned, the submissions of the learned Senior Counsel is that the landlady purchased the property in dispute after the death of her husband by means of a sale deed dated 31st of August, 1981. She got constructed the shop in the year 1984 and since then he is in occupation as tenant. The map was got sanctioned on 23rd of November, 1984. The construction must have been raised shortly thereafter, submits the learned Senior Counsel. The case of the plaintiff landlord opposite party, on the other hand, is that the building in question is subject to municipal assessment and it was assessed for the first time on 7th of April, 2000. The suit having been filed within 10 years from that date in the year 2000 itself, the building in question is exempted from the operation of the provisions of the U.P. Act No.13 of 1972. The trial court has discussed the issues in great depth under the issue Nos. 3 and 5. It has taken into consideration the various circumstances legal and factual as well, to reach to the conclusion that the building was assessed for the first time as stated by the plaintiff. As far as the factual aspect of the case is concerned, the trial court has observed that there is nothing on record to show that the defendant - applicant took the shop in question on rent in the year 1984 as alleged by him. As far as the factual aspect of the case is concerned, the trial court has observed that there is nothing on record to show that the defendant - applicant took the shop in question on rent in the year 1984 as alleged by him. It is admitted to him that he is carrying on the business from the disputed shop under the name and style of M/s. Soni Bastralaya and Soni Jewelers. In plaint of the suit no. 1245 of 1999 : Phool Badan Vs. Mahesha Devi, Paper No. 70 C in para 4 he has come out with the case that he took the disputed shop on rent in the month of July, 1989. Further, in the affidavit being Paper No. 270 of Phool Badan he has reiterated the said plea. Subsequently, he tried to improve the case on the allegation that an amendment application which is still undisposed off, was filed. The plaintiff no.1 examined himself as PW/1 who stated that a notice dated 6th of March, 1985 was issued by Nagar Palika, Mau on the allegation that the shop in dispute is in dilapidated condition and is likely to fall down at any time and the owner was asked to get it demolished. At that time, one Ram Nath was in occupation of the shop against whom eviction proceedings were initiated and the possession was delivered and in the month of July, 1988 the construction work after demolition was started which was completed on 2nd of January, 1999 and the competition report was submitted to Nagar Palika Mau and the building was assessed for the first time as a "new building" on 7th of April, 2000. The aforesaid statement of the plaintiff finds corroboration from the municipal extracts. No material to contradict or dispute these documents was produced by the applicant. It is not his case that these documents either do not exist or are fabricated one. Explanation to Section 2 (2) of the U.P. Act No.13 of 1972 provides the determination of the date on which the construction of the building is complete. No material to contradict or dispute these documents was produced by the applicant. It is not his case that these documents either do not exist or are fabricated one. Explanation to Section 2 (2) of the U.P. Act No.13 of 1972 provides the determination of the date on which the construction of the building is complete. For the sake of convenience the said Explanation is reproduced below:- Explanation (1)-For the purposes of this Section -- (a) The construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to to or otherwise recorded by the local authority having jurisdiction, and in the case of a building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time: Provided that there may be different dates of completion of construction in respect of different parts of a building which are either designed as separate units or are occupied separately by the landlord and one or more tenants or by different tenants; (b) "construction" includes any new construction in place of an existing building which has been wholly or substantially demolished; (c) where such substantial addition is made to an existing building that the existing building becomes only a minor part thereof the whole of the building including the existing building shall be deemed to be constructed on the date of completion of the said addition." 19. The aforesaid Explanation has been subject matter of interpretation by the Apex Court. The Apex Court examined the matter in great depth in Om Prakash Gupta Vs. Dig Vijendra Pal Gupta 1982 ARC 391 and has held that if there is an assessment, as in the present case it is , it will be the date of first assessment which will be deemed to be the date of completion of the construction. It repelled the argument that if the occupation of the tenant is earlier to the date of the first assessment, the date of occupation of the tenant would be the date of construction. It repelled the argument that if the occupation of the tenant is earlier to the date of the first assessment, the date of occupation of the tenant would be the date of construction. On an interpretation of the aforesaid provision it has been held that the occupation would be taken to be the date of completion of the construction only when there is no report or record of the completion of construction or no assessment thereof. There is no material on record to show in the present case that there is any other assessment which will be treated as the first assessment than the one as set out by the plaintiff landlord opposite party. No attempt was made by the defendant tenant applicant to file copy of any assessment to disapprove that the building in question was assessed to municipal tax at any time prior to 7th of April, 2000. It is also not his case that the said assessment does not relate to the building in question. This being so, the trial judge was perfectly justified in holding that 7th of April, 2000 is the date of construction of the building in question and from that date the period of 10 year has not expired yet at the time of the filing of the suit. So far as the argument of the learned counsel for the applicant with regard to the application filed by the landlady for sanction of map and notice is concerned, they have no relevance in view of the first assessment referred to above. The trial court has found that the completion of the construction was reported by the plaintiff to Nagar Palika Parishad Mau on 2nd of January, 1999 vide Paper No. 216 C wherein it has been stated that entirely a new construction after demolition of the old construction has been raised and the said construction after plaster is ready on 2nd of January, 1999. Request for noting the information and allotting house number, through the said application was made by the plaintiffs. On the said application, Executive Officer has submitted a report dated 7th of January, 1999 and asked for a survey report and recommended for allotment of new house numbers. Indisputably, the newly constructed house was valued at Rs.2,67, 373/- and the annual letting value was fixed at Rs.13,368.60 in place of its value at Rs.540/- annually and the tax at Rs.27/-. Indisputably, the newly constructed house was valued at Rs.2,67, 373/- and the annual letting value was fixed at Rs.13,368.60 in place of its value at Rs.540/- annually and the tax at Rs.27/-. The trial court has taken pain to discuss each and every document referred by the parties in the judgment and has rightly appreciated them. At least the learned Senior Counsel for the applicant could not point out any illegality or perversity therein except that a different view according to him should have been taken. On the undisputed fact that each house was valued at Rs.2,67,372/- in place of Rs.540/- (old valuation) and the tax was enhanced from Rs.27/- to Rs.13,368.60. The conclusion drawn by the court below that it was a new construction, is the only possible conclusion and no other inference can be drawn by any stretch of imagination. It has been found that earlier it was a Kachcha construction with Khaprail roofing and was in occupation of one tenant Ram Nath, in the year 1981. After evicting Ram Nath, the existing construction was demolished and Pakka construction was raised which was assessed to tax for the first time on 7th of April, 2000. It has been noticed in the judgment that the tenant applicant has not filed any evidence to the contrary. It has considered the paper No.176-C, which was strongly relied upon before me also by the learned Senior Counsel and has rightly held that there is no mention of construction of any shop. It relates to some residential accommodation. In the face of the first assessment dated 7th of April, 2000 the conclusion drawn by the trial court that the provisions of the U.P. Act No.13 of 1972 are not applicable, is perfectly justified. The learned Senior Counsel has failed to point out any illegality or perversity in the finding of the trial court holding that the shop in question was first assessed to tax on 7th of April, 2000 and is a new construction. 20. Taking into consideration the totality of the facts and circumstances of the case, the finding of the trial court deserves approval by this Court and calls for no interference. 21. Before parting with the case the reprehensible conduct of the applicant to delay and prolong the litigation as far as possible by abusing the process of court as has come on record, cannot be lost the sight of. 21. Before parting with the case the reprehensible conduct of the applicant to delay and prolong the litigation as far as possible by abusing the process of court as has come on record, cannot be lost the sight of. The suit was filed in the year 2000 and it appears that hearing of the suit was expedited as the plaintiff no.2 was aged about 104 years in the year 2006. It has been noticed by the Hon'ble Sunil Ambawani, J. in his order delivered in the writ petition No.3916 of 2007 that about 167 dates during the last seven years were fixed. There was a clear direction by the High Court for hearing of the suit to take up the matter on day to day basis. In spite of orders of peremptorily nature, the suit was not decided during the life time of the plaintiff no.2 on account of the filing of the successive writ petitions and revisions in this Court by the defendant - tenants. On record the judgment of this Court in Civil Revision No.72 of 2007 dated 14th of March, 2007 is there wherein the conduct of the defendant-applicants has been noticed in some detail and they have been directed to pay an amount of Rs.10,000/- as cost to the plaintiff. The said revision was filed by Ashok Kumar Verma and his father Phool Badan Verma. The relevant portion from the said judgment is reproduced below:- "...........Accordingly, this revision fails and is dismissed. Interim order granted is hereby vacated. This Court in the fitness of things, directs present applicant who is defendant in the suit to pay an amount of Rs.10,000/- (rupees ten thousand) as cost to the heirs of plaintiff who are now proceeding with the suit. It is made clear that cost is to be paid by the applicant within a period of 15 days from today. It is further made clear that court below is to now proceed with all promptness keeping in mind the mandate of this Court as given in the order dated 25.1.2007 passed in writ petition no.3916/07........" 22. In view of the above discussion, there is no merit in the revision. The revision is dismissed with cost of Rs.10,000/-. 23. It is further made clear that court below is to now proceed with all promptness keeping in mind the mandate of this Court as given in the order dated 25.1.2007 passed in writ petition no.3916/07........" 22. In view of the above discussion, there is no merit in the revision. The revision is dismissed with cost of Rs.10,000/-. 23. Time to vacate the disputed accommodation up to 31st of December, 2009 is granted subject to the following conditions:- 1.The applicant shall file an undertaking on affidavit before the trial court that he will vacate the disputed accommodation and will hand over its peaceful vacant possession to the plaintiff opposite party no.1 Ram Badhaee on or before that date. 2.The applicant shall deposit the entire arrears of rent for the use and occupation of the disputed accommodation at the rate of Rs.450/- per month along with the cost of the revision amounting to Rs.10,000/- after adjusting any amount already deposited for the period up to 31st of December, 2009 within a period of one month. 24. If the applicant fails to vacate the disputed accommodation, as directed above, he would be liable to pay the damages for use and occupation of the shop in dispute at the rate of Rs.5,000/- per month for the period commencing from 1st of September, 2009 till the date of actual delivery of possession. 25. The revision is dismissed with a cost of Rs.10,000/- (Rupees Ten Thousand) payable to respondent no.1.