JUDGMENT Hon’ble Prakash Krishna, J.—A simple suit for recovery of arrears of rent, damages and ejectment filed by the plaintiff opposite party took about 15 years for its decision by the trial Court and about two years by this Court. 2. This is a defendant tenant’s revision under Section 25 of the Provincial Small Cause Courts Act. 3. SCC Suit No. 4 of 1992 was instituted by the plaintiff landlord (hereinafter referred to as the ‘landlord’) for ejectment of the defendant tenant who is applicant herein, and hereinafter referred to as the ‘tenant’, in respect of five shops described as shop Nos. 12-B, 13-B, 14-B, 15-B and 16-B, all situate in Mohalla Nai Bazar, Tappa Haweli, Pargana Basti East, District Basti. If suit was instituted on the pleas inter alia that all the aforestated five shops in addition to other shops are recorded in the name of the landlord as house No. 382-A, Ward No. 2 in the municipal record and were assessed for the first time by the Municipal Authority in the year 1992, as they were not recorded in the municipal record earlier. Shop Nos. 12-B, 13-B and 14-B were constructed in the year 1985 and shop Nos. 15-B and 16-B were constructed in the beginning of the year 1992. The landlord claimed that the provisions of U.P. Act No. 13 of 1972 are not applicable to the shops as they are “new constructions” and are exempt from the operation of U.P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 (hereinafter referred to as U.P. Act No. 13 of 1972). It was further pleaded that each shop Nos. 12-B to 14-B were let out on monthly rent of Rs. 393-75 inclusive of house tax, water tax, etc. and shop Nos. 15-B and 16-B were let out on monthly rent of Rs. 300/-, each, inclusive of house tax, water tax etc. The tenant is in arrears of rent since Ist of July, 1991 in respect of shop Nos. 12-B, 13-B and 14-B. In respect of shop Nos. 15-B and 16-B it was claimed that the tenant is in arrears of rent w.e.f. September, 1992 after giving adjustment of advance money amounting to Rs. 24,000/-. The tenant is in arrears of rent since Ist of July, 1991 in respect of shop Nos. 12-B, 13-B and 14-B. In respect of shop Nos. 15-B and 16-B it was claimed that the tenant is in arrears of rent w.e.f. September, 1992 after giving adjustment of advance money amounting to Rs. 24,000/-. The eviction was also sought on the ground that the defendant tenant has made certain alterations in the shops without consent of the landlord and has disfigured them and the value and utility of the shops have been diminished on account of the structural changes made therein, unauthorisedly by the tenant. The tenancy was sought to be terminated by giving notices dated 1-10-1992, 13-10-1992, 19-10-1992 and 6-11-1992. All these notices were got returned after reading them by the tenant with the connivance of the postman. Consequently, a notice through telegram No. 8814/43 was sent on 11-11-1992 which was served on the same day, but the tenant has failed to vacate the disputed accommodation after expiry of the notice period. 4. The suit was contested on number of pleas, although the relationship of landlord and tenant between the parties was admitted. The tenant came out with a case that the land originally belonged to Jagjiwan Das father of the plaintiff landlord who had six sons. The landlord raised the shops and grabbed the shares of his brothers. In the written statement, with regard to shop Nos. 15-B and 16-B it was admitted that these shops were constructed in the year 1992. As regards the other shops, the case was that they are old constructions and, therefore, the provisions of U.P. Act No. 13 of 1972 are applicable. With regard to the rate of rent, it was pleaded that shop Nos. 12-B, 13-B and 14-B each were let out on monthly rent of Rs. 262-50. The landlord used to receive the said amount as rent but he used to issue receipts for the inflated amount. The plea that the tenant has disfigured the shops by making constructions and alterations was also denied. 5. The parties led evidence, oral and documentary, in support of their respective cases. The landlord examined himself as P.W. 1 and one Krishna Nand as P.W.2, The tenant, on the other hand, examined himself as D.W. 1, Bishambhar Agrawal as D.W. 2 and Gopalji Agrawal as D.W. 3. 6. 5. The parties led evidence, oral and documentary, in support of their respective cases. The landlord examined himself as P.W. 1 and one Krishna Nand as P.W.2, The tenant, on the other hand, examined himself as D.W. 1, Bishambhar Agrawal as D.W. 2 and Gopalji Agrawal as D.W. 3. 6. On the basis of the pleadings of the parties, as many as nine issues were framed by the trial Court. The trial Court, under issues No. 1 and 2, found that the defendant tenant has committed default in payment of rent and has also disfigured the tenanted accommodation. Under issue No. 3 it was found that each shop described as Nos. 12-B, 13-B and 14-B was let out on Rs. 393-75 per month and thus the cumulative rent for these three shops comes to Rs. 1,181-25 per month and the allegation to the contrary, as set out, was not found to be correct. Under issue No. 4 it has been found that the tenancy has been validly terminated under Section 106 of Transfer of Property Act and the notice in question is valid. Under issue No. 5 it was found that the provisions of U.P. Act No. 13 of 1972 are not applicable. Issue No. 6 relating to estoppel and acquiescence was not pressed by the defendant and was decided accordingly against him. Under issue No. 7 it was found that the unregistered rent agreement dated 30.4.1992 is inadmissible in evidence as it contains a clause of 20 years’ lease. The said document being unregistered one, cannot be read in evidence. Issues No. 8 and 9 were decided against the defendant tenant. 7. It may be placed on record that the learned Senior Counsel for the applicant has pressed the present revision on limited points, mentioned hereinafter. Other points which were raised by the defendant before the trial Court and were found against him have been given up. Sri Shashi Nandan learned Senior Counsel appearing along with Sri P.P. Chaudhary and Sri Udayan Nandan, Advocates pressed the revision only on the following three points : (1) The notice dated 11.11.1992 sent through telegram determining the tenancy as provided for under Section 106 of Transfer of Property Act is not a valid notice. Such notice through telegram is not permissible under law. (2) The provisions of U.P. Act No. 13 of 1972 are applicable to the three shops namely shop Nos. Such notice through telegram is not permissible under law. (2) The provisions of U.P. Act No. 13 of 1972 are applicable to the three shops namely shop Nos. 12-B, 13-B and 14-B as described in the plaint being old constructions. However, the learned Senior Counsel, categorically and unequivocally, has accepted that so far as the shop Nos. 15-B and 16-B are concerned, they are “new constructions” within the meaning of U.P. Act No. 13 of 1972 and as such, the provisions of U.P. Act No. 13 of 1972 are not applicable to these two shops namely shop Nos. 15-B and 16-B. He maintained that if ultimately it is found that the tenancy was not validly terminated, the defendant tenant would continue to be tenant of shop Nos. 15-B and 16-B notwithstanding the fact that the provisions of U.P. Act No. 13 of 1972 are not applicable. (3) Lastly, the Court below was not justified in awarding the damages at a rate higher than the agreed rate of rent. The trial Court has awarded the damages by making 25% enhancement in the rate of rent after every five years. 8. Sri Rahul Sripat, learned counsel appearing on behalf of the defendant opposite party supports the judgment under revision and submits that this is a case where this Court should not interfere under Section 25 of the Provincial Small Cause Courts Act. The defendant tenant has abused the process of Court by prolonging a simple litigation over about 17 years by raising all sorts of false and vexatious pleas. The tenancy, on the facts of the present case, was validly terminated through the telegram dated 11.11.1992 as the landlord had adopted all possible modes which are permissible under law to determine the tenancy of the tenant by sending successive notices (Four in number) by registered post and all these notices were got returned by the tenant who is a moneyed and influential person with the connivance of the postman. The tenant has disfigured the shops in question by making holes in the walls, by removing intervening wall between two shops, fixing doors and windows in the walls and by constructing a latrine and Duchhatti therein. All these additions and alterations have disfigured the disputed shops. There are number of shops in a row belonging to the landlord including the disputed shops. All these additions and alterations have disfigured the disputed shops. There are number of shops in a row belonging to the landlord including the disputed shops. By making such alterations and modifications, the tenanted shops in possession of the tenant look unsymmetrical and the disputed shops stand separated and singled out from the other tenanted shops. 9. Considered the respective submissions of the learned counsel for the parties and perused the record. 10. Taking the first point first, the learned Senior Counsel for the tenant submits that a notice as contemplated under Section 106 of Transfer of Property Act determining the tenancy of the tenant has to be signed by the landlord. Elaborating the arguments, he submits that in a telegram it is not possible to transmit the signature of the notice giver. The notice in question is short of the requirement as provided for under Section 106 of Transfer of Property Act. Much emphasis was laid by the learned Senior Counsel on the opening words of sub-section (4) of Section 106 of Transfer of Property Act. It provides that every notice under sub-section (1) must be in writing, signed by or on behalf of a person giving it......Learned Senior Counsel submits that the emphasis is that the notice must be in writing and signed by or on behalf of the lessor. He further submits that in a telegram only message is transmitted from one post office to another. A notice through telegram is, therefore, not contemplated under Section 106 of Transfer of Property Act. Strong reliance was placed on a judgment of Andhra Pradesh High Court in Maduri Satyanarayana v. Singamsetti Veerabhadraswamy, AIR 1990 AP 169 wherein it has been held that where the lessor had sent a telegram notice to the tenant terminating the tenancy which did not contain the signature of the lessor, it certainly does not satisfy the requirement under Section 106 and is, therefore, not valid. Even though the tenant had received it and sent a reply, he is not estopped from contending that such notice was not valid as there cannot be estoppel against statute. Reliance was also placed on the aforestated judgment before the trial Court and has been distinguished by the trial Court on the ground that the facts of the present case stand on a different footing. 11. Reliance was also placed on the aforestated judgment before the trial Court and has been distinguished by the trial Court on the ground that the facts of the present case stand on a different footing. 11. Here, as noticed above, four notices to quit, one after another, were sent by the landlord to the tenant on different dates i.e. on 1-10-1992, 13-10-1992, 19-10-1992 and 6-11-1992. These notices are on the record. The landlord has also filed the receipts issued by the Post Office to show that the notices were sent and returned back with the remarks of the postman. The landlord in deposition as PW-1 has proved the postal receipts Exhibits 9 to 12, copies of the notices Exhibits 13 to 16 and the notices returned without services Exhibits 17 to 23. The notices were returned with postal endorsement ‘not met’. The case of the landlord is that the tenant who is an influential person got false endorsement of ‘not met’ in connivance with the postman on these registered notices. As against the above, there is no material on record to show on behalf of the tenant that the said endorsement of ‘not met’ made by the postman was not at his instance but was with the connivance of the landlord or otherwise. It may be noticed that the plea of connivance in between the postman and the tenant has been set out in paragraphs 11, 12 and 13 of the plaint. Reply thereof has been given in paragraphs 11, 12 and 13 of the written statement wherein the tenant has not made specific denial of the averments made in the plaint that the tenant in connivance with the postman after reading the notice got it returned with a false report. The tenant in his deposition as DW-1 has stated only this much that the plaintiff had not given any notice before institution of the suit nor any postman sought to deliver any notice on him nor he refused any notice. He went on to the extent of stating that no telegram was sent by the plaintiff nor it was received by him. As a matter of fact, the telegram was served on the tenant personally who received it under his signature, as certified by the postal department. He went on to the extent of stating that no telegram was sent by the plaintiff nor it was received by him. As a matter of fact, the telegram was served on the tenant personally who received it under his signature, as certified by the postal department. It is axiomatic that every possible step was taken by the plaintiff landlord to serve the notices to quit on the defendant tenant. The landlord sincerely desired to avoid any complication which may arise in future to serve a personal notice on the tenant before institution of the suit. With this desire, the notice in question i.e. dated 11-11-1992 was sent through telegram. The question is whether on the facts of the present case, this notice to quit can be held to be valid and validly served within four corners of Section 106 of Transfer of Property Act on the tenant. 12. With the help of “Posts and Telegraphs Manual” Volume XI, Traffic Instructions, published under the authority of the Director General of Posts and Telegraphs, the learned counsel for the landlord submits that it is not necessary that in every case of telegram, the message is transmitted from one post office to another through wireless modes/means. In this connection, it is necessary to note certain provisions thereof. Chapter I Rule 83 provides telegram forms to be supplied by all Telegraphs and Post Offices for the purposes of telegram. It further provides that the use of such forms ‘shall not be compulsory’. It also provides that if a message is presented on other than the proper form, it should be accepted and pasted on its corresponding form with the date-stamp legibly impressed in part on the form as well as on the paper on which the message is written. Chapter IX deals with ‘Delivery at Destination’. It also provides that if a message is presented on other than the proper form, it should be accepted and pasted on its corresponding form with the date-stamp legibly impressed in part on the form as well as on the paper on which the message is written. Chapter IX deals with ‘Delivery at Destination’. Rule 85 which has been described as ITR 85-relevant for our purposes, reads as follows : “ITR 85 : Persons to whom Telegrams may be delivered.—An inland telegram taken to the addressee’s place may be delivered either to the addressee or to an adult member of his family, or to any person in his service, or to his lodgers or guests, or to the porter of the hotel or the house.” The trial Court as well as the learned counsel for the landlord referred various provisions from the said Manual in support of their finding and argument that where a message is required to be delivered to the addressee outside eight kilometer of delivery radius, the message should only be posted vide Rule 277 which is reproduced below : 277. Message should only be posted— (a) if the address contains instructions to that effect; (b) if the residence of the addressee is known to be outside the eight kilometer delivery radius (Indian Telegraphs Rules 121 and 122).” 13. In other words, it follows where the messages are to be delivered within eight kilometer radius, it need not be posted i.e. to say not to be transmitted through wireless mode. 14. In the present case, the plaintiff landlord produced a certified copy of the text of the message (notice) dated 11-11-1992 sent by the landlord to the tenant as notice to quit. The certified copy is on the record and it bears the signature of the landlord. The procedure as was pointed out by the learned counsel is that for a message to be delivered telegraphically to an addressee residing within a radius of eight kilometer, the telegraph office accepts the application form in triplicate. One is retained by it, second is sent to the addressee and the third copy is returned with the endorsement of receipt to the sender. The landlord has produced a certified copy of the text of the message issued by the telegraph office. It is paper No. 209C and 210C. One is retained by it, second is sent to the addressee and the third copy is returned with the endorsement of receipt to the sender. The landlord has produced a certified copy of the text of the message issued by the telegraph office. It is paper No. 209C and 210C. The said document bears the signature of Akhilesh Narain Singh (landlord) with inscription ‘the notice giver’. As against this, not a single word was said by the defendant or his Senior Counsel. Sri Shashi Nandan, learned Senior Counsel appearing on behalf of the tenant did not dispute the authenticity of the certified copy of the notice dated 11-11-1992 issued by the Posts and Telegraph Department. Rule 277, as reproduced above, says that the message should only be posted if the residence of the addressee is known to be outside eight kilometer delivery radius. It was neither pleaded nor proved that the telegram in question was addressed to the addressee to a place to be outside eight kilometer delivery radius. The trial Court has noticed the relevant clauses from the Post and Telegraph Manual in detail with regard to the preservation of the telegraph message for a period of three months and the manner of issuing its certified copy etc. It is not necessary for this Court, there being no dispute raised before me in this regard, to examine them in detail again. The factual position boils down to this that in the present case, the notice to quit was sent through messenger of the telegraph department as was given by the landlord under his signature to the telegraph department, for the purposes of serving it on the tenant and was served as such on him personally. As against this, the tenant has not produced nor argued anything in reply. Neither it was pleaded nor proved, as a matter of fact, that the telegram which was received by the tenant did not contain the signature of the landlord. The tenant could not dare to file copy of the telegram in evidence to show that the said telegram cannot be treated as a valid notice to quit as it does not contain the signature of the landlord or of any person on his behalf. The tenant could not dare to file copy of the telegram in evidence to show that the said telegram cannot be treated as a valid notice to quit as it does not contain the signature of the landlord or of any person on his behalf. Withholding of the said document by the tenant gives rise to an adverse presumption and supports the case of the landlord that his signature was there on the document in question. 15. Even otherwise also, there is presumption of correctness of every government and official act. When the Post and Telegraph Department has issued a certified copy of the telegram in question which bears the signature of the landlord, therefore, there is a presumption that the original telegram sent to the tenant bore the signature of the landlord, unless proved otherwise. The trial Court has noticed that the certified copy of the telegram is paper No. 16C (Exhibit 27) but with the passage of time, the said carbon copy has become unreadable as the carbon of the letters have become dim. However, its photostat copy (paper No. 209C) which is attested copy of paper No. 16C and paper No. 210C which is carbon copy of the telegram dated 11-11-1992 are on the record and they establish the case of the plaintiff landlord. This being so, the contention of the learned Senior Counsel that the notice dated 11-11-1992 sent through telegraph office is invalid as it does not bear the signature of the landlord, has got no substance. The plaintiff landlord has proved beyond doubt that the notice dated 11-11-1992 sent through telegraph office bore the signature of the landlord. The finding of the trial Court in this regard is well considered finding and does not call for any interference. 16. Exhibit 28 is the letter of the Assistant Superintendent dated 19-11-1992 in reply to the letter of the landlord dated 12-11-1992 with respect to the telegram No. 43 dated 11-11-1992, certifying that the said telegram dated 11-11-1992 was delivered on the addressee on the same day in between 1700 to 1900 hrs. through the telegram server. This belies the statement of the defendant tenant that he did not receive the telegram dated 11-11-1992. 17. Reliance placed on the case of Maduri Satyanarayana v. Singamsetti Veerabhadraswamy (supra) is misplaced one and is distinguishable on facts. through the telegram server. This belies the statement of the defendant tenant that he did not receive the telegram dated 11-11-1992. 17. Reliance placed on the case of Maduri Satyanarayana v. Singamsetti Veerabhadraswamy (supra) is misplaced one and is distinguishable on facts. It is established in the present case which was not so there, on record that the notice dated 11-11-1992 contains the signature of the landlord. 18. Reliance placed on District Magistrate and another v. G. Jothisankar, AIR 1993 SC 2633 for the proposition that the telegram has no authenticity and contents thereof cannot be taken into consideration, is misplaced one. The said observations were made therein with reference to the provisions of Tamil Nadu Prevention of Dangerous Activities of Boot-Leggers, Drugs Offenders, Forest Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act. The orders of detention were passed by the District Magistrate under the said Act. While setting the detenus free, the Apex Court held that there is nothing on record to show that before detention orders were passed any other communication was sent to the detaining authority or to the police confirming the contents of the telegram. The observations made therein should be read in the context of the facts and statutory provisions involved therein. The principle relating to law of detention stands altogether on different footing. The Apex Court in that case was not called upon to examine the provisions of Section 106 of Transfer of Property Act. The said decision has no application to the point involved herein even remotely. 19. It may be noticed that in the present case, copy of text of the telegram was also sent by registered post and receipts etc. are on the record. 20. It was also contended that when a thing is required to be done in a particular manner it should be done in that manner and not otherwise. There appears to be no quarrel to the said proposition but its applicability to the given case is a different thing. 21. It may be placed on record that not a single word was urged by the learned Senior Counsel disputing the service of the telegram in question. 22. There appears to be no quarrel to the said proposition but its applicability to the given case is a different thing. 21. It may be placed on record that not a single word was urged by the learned Senior Counsel disputing the service of the telegram in question. 22. In view of the above discussions, I do not find any illegality in the finding of the trial Court holding that the notice dated 11-11-1992 was duly and validly served on the tenant and that the said notice is a valid notice within the meaning of Section 106 of Transfer of Property Act. The argument to the contrary does not deserve acceptance and the same is hereby rejected. No other facet with regard to the above point was argued. 23. So far as the second point regarding the applicability of U.P. Act No. 13 of 1972 to five shops is concerned, it may be noted that with respect to the shop Nos. 15-B and 16-B, the defendant tenant has himself admitted that they were constructed in the year 1992. The suit having been filed in the year 1992 itself, the provisions of the said Act are obviously not applicable and as such, the tenant is not entitled for any protection under the said Act except the protection as provided for under Section 106 of Transfer of Property Act. The validity of notice under Section 106 of Transfer of Property Act has been upheld. This being so, the defendant tenant is liable for eviction from these shop Nos. 15-B and 16-B. 24. With regard to the other shops namely 12-B, 13-B and 14-B, it was argued on behalf of the tenant that these shops were constructed even prior to year 1985 as is evident from the plaint of suit No. 260 of 1969, Jagjiwan Das v. Nagar Palika through Administrator and others. A copy of the decree has been filed as paper No. 195C. Copy of the plaint is paper No. 196C. In para-1 thereof it has been stated therein that the plaintiff therein namely Jagjiwan Das has raised 14 shops for the purpose of letting them out. The other shops are under construction. The said suit was instituted against Mohan Lal Hira Lal etc. sons of Munni Lal. Copy of the plaint is paper No. 196C. In para-1 thereof it has been stated therein that the plaintiff therein namely Jagjiwan Das has raised 14 shops for the purpose of letting them out. The other shops are under construction. The said suit was instituted against Mohan Lal Hira Lal etc. sons of Munni Lal. Reference was also made to the plaint of another suit No. 203 of 1977, Jagjiwan Das v. Sarjoo Prasad wherein it has been stated that building has got house number 382 ward No. 2 situate in Mohalla Nai Bazar wherein there are number of rooms. These rooms were numbered by the plaintiff as per his own convenience. In one of the rooms which is numbered as room No. 27, Sarjoo Prasad is the tenant. On the basis of these documents, it has been submitted that the shops in question are pre 1985 constructions and, therefore, had completed 10 years at the time of institution of the present suit. The case of the landlord, on the other hand, is that these shops were constructed in the year 1985 and were assessed to tax by the Municipal Authority for the first time in the year 1992. 25. Explanation I to Section 2(2) of U.P. Act No. 13 of 1972 provides procedure for the purposes of determination of date of construction of a building. It classifies the buildings in two categories. The first category is where the buildings are subject to assessment. The other category is where the buildings are not subject to assessment by the Local Authority. The said Explanation says that where a building is subject to assessment, it is the date of first assessment which is relevant for the purpose of determination of date of construction of a building. The said Explanation has been subject matter of interpretation by the Apex Court in the leading case Om Prakash Gupta v. Digvijendra Pal Gupta, 1982 ARC 391. It has been held therein that in the case of a building subject to assessment, it is date of assessment which is relevant date for the purpose of determination of the date of construction. It has gone to the extent of saying that even if the building was constructed earlier and was in occupation of a tenant but the date of first assessment is subsequent, the date of first assessment would be the only relevant date. It has gone to the extent of saying that even if the building was constructed earlier and was in occupation of a tenant but the date of first assessment is subsequent, the date of first assessment would be the only relevant date. The relevant paragraph is reproduced below : “ ........Explanation 1 provides that the building shall be deemed to have been completed on the date on which completion thereof is reported to or otherwise recorded by the local authorities having jurisdiction, and in 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 of assessment, the date on which it is actually occupied ............for the first time. A perusal of Explanation 1 makes it abundantly clear 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 the construction or no assessment thereof. If there is an assessment, as in the present case it is, it will be the date of the first assessment which will be deemed to be the date of completion of the construction, and in that view of the matter the building had not become more than ten years’ old on the date when the revision came to be decided by the High Court, and therefore there was no question of giving the benefit of Section 39 of the Act to the appellant.” (Emphasis supplied) 26. In view of the above authoritative pronouncement, the reference made by the learned Senior Counsel to the materials, referred to above, are wholly irrelevant as the present case is also of first assessment which has not been disputed. Even otherwise also, the said contention of the learned Senior Counsel is liable to be rejected as the suits were instituted not by the present plaintiff landlord but by his father against different tenants wherein the case of the father was that he raised the shops involved therein. While in the present case, the disputed shops were constructed admittedly by the present plaintiff landlord out of his own funds. In this connection, it is relevant to look into the pleadings of the defendant tenant. While in the present case, the disputed shops were constructed admittedly by the present plaintiff landlord out of his own funds. In this connection, it is relevant to look into the pleadings of the defendant tenant. In para-30 of the written statement, he has stated that the disputed and other shops were constructed in place of old house which belongs to his father Jagjiwan Das who had six sons besides the plaintiff and they are the co-owners along with the plaintiff but the shops were constructed and let out by the plaintiff landlord and as such, there exists relationship of landlord and tenant between the parties. This factually belies the case as set out by the defendant tenant that the shops were in existence during the life time of plaintiff’s father. 27. The Apex Court in Ram Saroop Rai v. Smt. Lilawati, 1980 ARC 466 has held that for the purposes of determination of date of construction within the meaning of Section 2 (2), Explanation 1, oral evidence or admission of the parties is of not much significance. The statute provides mode of proof of date of construction and as such, the reliance should not be placed on the lips of the witnesses but on the documentary evidence i.e. municipal record. As against the municipal record filed by the plaintiff landlord to show that the shops in question were “new constructions”, the defendant has not filed any document to disprove that the assessment list relied by the plaintiff landlord is not the first assessment list. In view of the municipal record also and taking into consideration the authoritative pronouncements of the Apex Court in the case of Om Prakash Gupta and Ram Saroop Rai (supra), the irresistible conclusion is that shops No. 12-B, 13-B and 14-B are the new constructions and are exempt from the operation of U.P. Act No. 13 of 1972 in view of Section 2(1)(g) of the said Act. 28. Having said as above, in the alternative, I am of the view that the question as to whether the provisions of U.P. Act No. 13 of 1972 are applicable or not to the shops in question is wholly academic in the present case in view of the finding recorded by the trial Court which has not been challenged that the defendant tenant is in arrears of rent for more than four months. The trial Court has accepted the case of the plaintiff landlord that the tenant is in arrears of rent in respect of shop Nos. 12-B, 13-B and 14-B since 1st of July, 1991 and in respect of shop Nos. 15-B and 16-B since 1st of September, 1992. The notice was given on 11-11-1992. The finding of the trial Court on the question of default was not questioned before me. As already noticed above, not even a slightest submission was made by Sri Shashi Nandan, learned Senior Counsel to challenge the finding recorded by the trial Court on the question of default in payment of rent. Even if the provisions of U.P. Act No. 13 of 1972 are applicable, in view of the finding recorded by the trial Court, which has attained finality, on the question of default, as it has not been questioned in the present revision, the defendant tenant is liable for eviction. 29. The finding recorded by the trial Court on the question of default under issue No. 1 was not challenged, as noticed hereinabove, however, in this connection pleadings of the parties and evidence led by them may be noticed in brief. It is a case where there is no dispute that the landlord had been issuing rent receipts. The last rent receipt is on the record and it is for the period upto June 1991, in respect of three shops namely shop Nos. 12-B, 13-B and 14-B. In the written statement also, there appears to be no dispute that the last rent was paid upto June, 1991. The defendant tenant however came out with a case, which he failed to substantiate, that a sum of Rs. 15,475/- was paid as advance to the landlord. The theory of advance payment of Rs. 15,475/-, as was propounded by the defendant tenant, has not been substantiated by any cogent evidence. This being so, the default in payment of rent stands established beyond doubt and that was the reason that no attempt was made to challenge the said finding in the present revision. The record was examined by me, as the trial Court has not elaborated it in detail in its judgment. 30. This being so, the default in payment of rent stands established beyond doubt and that was the reason that no attempt was made to challenge the said finding in the present revision. The record was examined by me, as the trial Court has not elaborated it in detail in its judgment. 30. A feeble attempt was made in the rejoinder to challenge the finding recorded by the trial Court on the question of disfigurement and diminution of the shops in dispute due to alterations and modifications and constructions raised by the tenant unauthorisedly without the consent of the landlord. Section 20 of the said Act specifies the grounds for eviction of a tenant and one of the grounds is where the tenant has without the permission in writing of the landlord made or permitted to be made any such construction or structural alteration in the building as is likely to diminish its value or utility or to disfigure it. The case of the landlord is that the tenant has removed the intervening wall of two shops and has fixed the doors and made a hole in one of the walls of the shops, constructed a Duchhatti and a latrine, without his permission. A commission for spot inspection was issued. The Commissioner’s report corroborates the case of the landlord with regard to the alterations etc. The said finding recorded by the trial Court is based on material on record and cannot be interfered with in a revision. 31. One of the grounds for eviction of a tenant as specified in Section 20 of the Act is where the tenant is in arrears of rent for not less than four months and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand. Firstly, as noted above, the provisions of U.P. Act No. 13 of 1972 are not applicable to the remaining shops namely shop Nos. 12-B, 13-B and 14-B as found above and even if the provisions of U.P. Act No. 13 of 1972 are applicable, the tenant is liable for eviction in view of the finding that he is in arrears of rent for more than four months and has failed to pay the same within the period of one month from the date of service of notice of demand. This being so, it is not necessary to consider the issue in great detail in view of the discussions made in the earlier part of the judgment wherein it has been found that the provisions of U.P. Act No. 13 of 1972 are not applicable and that the tenant is liable for eviction on the ground of default in payment of arrears of rent. 32. Lastly, it was urged that there was no justification for the trial Court to grant the damages at the enhanced rate. It was submitted that the damages for use and occupation of the disputed accommodation, pendente lite and future could be granted only at the agreed rate of rent. The trial Court has granted the damages at the enhanced rate on the basis of an agreement which was not found admissible so far as the tenancy is concerned being unregistered one has been relied upon for the purposes of determination of mesne profit. The execution of the said agreement dated 30-4-1992 has been pleaded in defence by the defendant in paragraphs 25 and 26 of the written statement. In paragraph 25 thereof it has been stated besides other things that the defendant will remain in occupation of five shops for a period of 20 years and there would be enhancement in rent by 25% after every five years. It was so agreed on 6-9-1991. On 30-4-1992 vide paragraph 26 of written statement an agreement in writing signed by both the parties was executed wherein it was agreed that there would be enhancement of rent by 25% after completion of every five years. Although the defendant has pleaded the said agreement for the purposes of saving his eviction for a period of 20 years but nonetheless the defendant tenant agreed therein for the periodical enhancement in rent by 25% after every five years. The learned Senior Counsel contends that if the said agreement cannot be read in evidence, being unregistered one, cannot be read even for the purpose of determining the mesne profit, present and future, cannot be accepted. The said agreement was arrived at by the defendant with his wide open eyes and is indicative of the fact that the rental value of the immovable properties are increasing day by day. The defendant took the disputed accommodation on rent and willingly agreed to pay enhanced rent @ 25% after every five years. The said agreement was arrived at by the defendant with his wide open eyes and is indicative of the fact that the rental value of the immovable properties are increasing day by day. The defendant took the disputed accommodation on rent and willingly agreed to pay enhanced rent @ 25% after every five years. The agreement in question may not be admissible in evidence for the purposes of determination of lease period being unregistered one, but certainly can be looked into as a valid piece of evidence for the purposes of determining the mense profit, present and future. The said agreement, more or less, is in the nature of admission of the tenant that the rent of the immovable properties are being increased with the passage of time. Escalation of rent clause in the said agreement is relevant and germane for the purposes of determination of the damages. Moreover, the defendant tenant by his conduct has been able to prolong the litigation which is otherwise a simple litigation over a period of 17 years and has been enjoying the possession of the shops in dispute. Neither law nor the equity favours such a tenant to freeze the damages, on the facts of the present case, at the agreed rent otherwise, it would amount giving of premium to an unscrupulous litigant. Similarly, the defendant cannot be permitted to take advantage of delay in disposal of a case. 33. No other point was pressed. 34. In view of the above discussions, I find no merit in the revision. 35. In the result, the revision is, therefore, dismissed with costs. 36. Time to vacate the disputed premises is granted upto 31-12-2009, provided the defendant applicant files an undertaking on affidavit before the trial Court within one month stating that he will vacate the disputed accommodation on or before 31-12-2009 and will hand over its vacant peaceful possession to the landlord. The defendant tenant is also required to pay/deposit the damages for the period upto 31-12-2009 at the decreed rate within the same period of one month. In case of default in compliance of any of the conditions stipulated above, the time granted by this Court shall stand vacated and it shall be open to the landlord to put the decree in execution. ————