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Allahabad High Court · body

2009 DIGILAW 66 (ALL)

RAJESH KUMAR ALIAS KALLU v. RAKESH KUMAR

2009-01-12

V.K.SHUKLA

body2009
( 1 ) PRESENT JSCC Revision has been filed against the judgment and decree dated 22. 11. 2008 passed by IInd Additional District Judge, Jalaun at Orai in JSCC Suit No. 8 of 2004 (Rakesh Kumar and others Vs. Rajesh Kumar) decreeing suit for ejectment. ( 2 ) BRIEF background of the case is that Rakesh Kumar and others who are landlords of premises in question namely shop no. 70/04 situated at Mohhalla Baldau, Chowk (Sarafa Bazar) Qasba Orai District Jalaun instituted suit mentioning therein that premises in question is not at all covered under the provision as contained under U. P. No. XIII of 1972 and shop in question had been taken on rent at the rate of Rs. 600/- per month apart from water tax which was to be paid separately and w. e. f. 01. 05. 2007 no rent was paid and in spite of service of notice on 01. 09. 2004 amount in question was not paid and thereafter suit has been filed for arrears of rent and ejectment. Said suit was contested by defendant-tenant-revisionist by contending therein that notice which sent was illegal rate of rent was Rs. 450/- per month and water tax was not the liability of tenant and further provision of U. P. Act No. XIII of 1972 are not applicable and further suit in question has been filed on totally unsustainable ground. Thereafter from both the respective sides evidence has been led and Principal issue which arose is as to whether provision of U. P. Act No. XIII of 1972 are applicable or not ? Judge Small Causes Court has concluded that provision of U. P. Act No. XIII of 1972 are applicable and tenancy in question has been terminated and based on the same arrears of rent has been found and the suit has been accordingly decreed. At this juncture present JSCC Revision has been filed. Judge Small Causes Court has concluded that provision of U. P. Act No. XIII of 1972 are applicable and tenancy in question has been terminated and based on the same arrears of rent has been found and the suit has been accordingly decreed. At this juncture present JSCC Revision has been filed. Sri Alok Kumar Yadav, appearing for defendant-tenant-revisionist contended with vehemence that in the present case Judge Small Causes Court has clearly erred in law qua the applicability of the provision as contained under U. P. Act No. XIII of 1972 where as defendant-tenant-revisionist has brought on record the assessment from year 1978 till 1992 of the building and it was also proved by certain assessments filed by plaintiff/respondent wherein it was indicated that prior to 1985 the building in question was recorded as Khandar was also manipulated and ignoring all these important circumstances perverse finding has been recorded, as such on this score said finding of fact are liable to be reversed that that provision of U. P. Act No. XIII of 1972 are not applicable and protection envisaged under U. P. Act No. XIII of 1972 be extended then by notice simplicitor under Section 106 of Transfer of Properties Act suit cannot be decreed, as such Revision in question deserves to be allowed. ( 3 ) COUNTERING said submission Sri Sharad Malviya, Advocate appearing on behalf of landlord contended that as per provision as contained under proviso of Section 2 (2) of U. P. Act No. XIII of 1972, map in question was sanctioned in the year 1986 and assessment of the same was done after year 1985, in this background once after appreciation of evidence rightful decision has been taken qua the applicability of U. P. Act No. XIII of 1972 then in exercise of Revisional authority this Court should not act as appellate authority, in this background present JSCC Revision as it has been framed and drawn is liable to be dismissed. ( 4 ) AFTER respective arguments have been advanced question on which argument has been advanced is in regard to applicability of the provision of U. P. Act No. XIII of 1972 and as said question goes to the root of the matter the same is being adverted to, to verify as to whether the said question has been decided in its correct perspective in the facts of the case. Judgement in question reflects and which has also been taken note of by Judge Small Causes, in the assessment register of 1977-78 to 1981-82 therein the first portion of the house has been shown as Khandar and qua other two parts Shayam Lal and Magan Lal has been shown to be the tenants. In paper no. 23-Ga, which is assessment paper for the period starting w. e. f. 1982-83 upto remaining period 1986-87 therein Anand Sawroop has again been shown to be the landlord and in paper no. 24-Ga, which is assessment 1987-88 till 1991-92 paper therein House no. 53 has been shown and therein no tenant has been shown and House in question has only one number. Judge Small Causes Court has taken note of the fact that these documents are different document which has been filed on earlier occasion as in earlier document since 1981-82 same has been shown as Khandar. In the statement of facts it has been mentioned and much stress has been laid by defendant-tenant-revisionist that interpolation has been done by adding word Khandar. On this serious objection being raised, to verify genuineness of statement made for this purpose original record has been summoned. In view of contradictory evidence having being come on record in the light of the documents which has been produced and in the light of other evidence which has been produced said question has been dealt with. Judge Small Causes Court has also taken note of the fact that from both the side assessment documents has been filed and therein as per documents filed by defendant paper no. 51-Ga which was for assessment year 1977-78 to 1981-82 therein house no. 53/1 has been described as Khandar and in paper no. 53-Ga which was for assessment year 1987-88 till 1991-92 therein word Khandar has not been mentioned and merely in paper no. 53-Ga which was for assessment year 1977-78 to 1981-82 therein house no. 53/1 has been recorded as Khandar. Judge Small Cause Court has proceeded to mention that in assessment record of 1981-82 house in question has been described as Khandar, and both the parties have taken copy of the same in the year 2003. This fact has also been taken into account that from 1981-82 upto 1986-87 assessment was consistently made at the rate of Rs. 150/ and house tax at the rate of Rs. 7. This fact has also been taken into account that from 1981-82 upto 1986-87 assessment was consistently made at the rate of Rs. 150/ and house tax at the rate of Rs. 7. 50, was imposed in this background conclusion has been drawn that till 1986-97, right from beginning when it was in the shape of Khandar assessment of the house in question was at the rate of Rs. 150/- and house tax of Rs. 7. 50/- was there and thereafter with effect from 1987 till 1992 same has been raised at the rate of Rs. 600/- and house tax at the rate of Rs. 30/-, and this rise was directly co-related with new construction raised. In this background keeping in view that map in question qua the premises in question was got renewed in the year 1986, tenancy was after year 1988 conclusion has been drawn that for the first time after construction has been raised of the said Khandar then there was enhancement in value of the house and rent in assessment records. In this background after taking into account all these factual aspect of the matter which are logical and reasonable in nature on the basis of first date of assessment qua the building in question opinion has been formed. Once, first date of assessment is after year 1986 then certainly, building in question was not covered under the provision of U. P. Act No. XIII of 1972. In this background view taken cannot be said to be incorrect and illegal view warranting any interference by this Court in exercise of its Revisional jurisdiction under Section of Provincial of Small Causes Court Act, 1887. Consequently finding of fact having been returned on the basis of documentary evidence which has been filed then it cannot be said that said finding is suffering from any infirmity. ( 5 ) ONCE provision of U. P. Act XIII of 1972 have been held to be not applicable then defendant-tenant-revisionist was liable to be evicted by giving notice simplicitor under Section 106 of Transfer of Properties Act, and this has been done exactly in the present case and in case any amount was due then qua the same also relief could have been asked for. In the present case validly tenancy has been terminated in this background no interference is warranted. In the present case validly tenancy has been terminated in this background no interference is warranted. Consequently, present Civil Revision as it has been framed and drawn is dismissed. However, Revisionist is accorded six months time to vacate the premises in question and hand over its peaceful vacant possession to the respondent-landlady, subject to the condition that within one month from today affidavit shall be filed by the revisionist before the Judge Small Cause Court that premises in question will be vacated on or before expiry of the period as aforesaid. In the event of affidavit not being filed within one month from today, the interim protection shall cease to operate, and landlady would be at liberty to proceed accordingly, and interim protection of this Court would not come to rescue of revisionist. .