JUDGMENT Hon’ble Rakesh Sharma, J.—Since the controversy involved in both the Civil Revisions are same, therefore, they are being heard together and disposed of by a common order, which is being passed in Civil Revision No. 322 of 2006. 2. Heard Shri B.D. Mandhyan, learned Senior Counsel assisted by Shri Satish Mandhyan for the revisionist-tenant and S/Sri M.K. Gupta and Manish Tandon for the respondents-landlord. 3. This revision was preferred by the tenant under Section 25 of Provincial Small Causes Courts Act, 1882 against the judgment and decree dated 23.5.2006 passed by learned Additional District Judge, Court No. VIII, Agra in S.C.C. No. 39 of 2002 in re.Col. Kapil Deo Ghai and another v. Abdul Majid Mir (A.Majid), by which the suit of the plaintiffs-respondents for ejectment of the defendant-revisionist from the house in dispute has been decreed. 4. It emerges from record that the house in dispute i.e. 43, Mall Road, Agra Cantt. Agra was earlier owned by one Lt. Col. Kishan Lal Ghai. He had purchased the house in the year 1964. After the death of Lt. Col. Kishan Lal Ghai, his wife Vidhya Ghai, three sons namely Col. Kapil Dev Ghai, Col.Bharat Bhushan Ghai V.K. Ghai and his daughter Swarn Lata became co-owners of the property. 5. A suit No. 39 of 2002 was filed by Col. Kapil Dev Ghai & Another Col. Bharat Bhushan Ghai, both sons of Col. Kishan Lal Ghai, original purchase of the house, claiming themselves to be owners-landlord of the said property seeking eviction of Shri Abdul Majid Mir, the tenant. Shri Abdul Majid Mir was impleaded as respondent No. 1 before the Small Causes Court in the suit. Shri V.K. Ghai, son of late Lt. Col. Kishan Lal Ghai, Dr. A.K. Handa, Col. Sandeep Handa and Sanjay Handa were impleaded as proforma defendants indicating in the suit that they were co-owners of the aforesaid property alongwith the plaintiffs. 6. The landlord set out the case that the residential house i.e. 43, Mall Road, Agra Cantt. Agra is a residential building (Kothi) having out houses, open lawns and other amenities. The defendant-tenant Abdul Majid Mir was inducted as tenant. He was paying rent @ Rs. 9,000/- per month besides taxes. It was categorically pleaded that the rent of the aforesaid property was being realised on behalf of the plaintiffs-owners from the tenant by Col. Bharat Bhusan Ghai (one of the plaintiffs). The defendant-tenant Abdul Majid Mir was inducted as tenant. He was paying rent @ Rs. 9,000/- per month besides taxes. It was categorically pleaded that the rent of the aforesaid property was being realised on behalf of the plaintiffs-owners from the tenant by Col. Bharat Bhusan Ghai (one of the plaintiffs). The defendant was paying Rs. 5,000/- through Account payee cheque and Rs. 4,000/- by cash to the aforesaid Col. Bharat Bhushan Ghai towards monthly rent. Thus, the rent was being tendered to Col. Bharat Bhushan Ghai, who was managing the property and looking after the affairs of the above said Ghai’s family. 7. The property was given to Shri Abdul Majid Mir, defendant-tenant for residential purposes but later on he without seeking consent and permission of the plaintiffs quitely and unauthorizedly converted into a commercial establishment. He was carrying on business of selling Carpets and other allied goods from the rented residential house as a result of which the building was converted into a shop or commercial establishment. Thus, the defendanttenant had changed the nature of the property and the purpose of tenancy. He had raised the illegal and unauthorised construction in the open land of property i.e..43, Mall Road, Agra without consent and permission of the plaintiffs. The description of the unauthorised construction have been given in the plaint and other documents. Extensive alterations were made in the building which had affected in changing the nature of the property materially and structurally, diminishing it in value and utility. A beautiful bungalow situate in posh Mall Road and cantonment of Agra was disfigured and as per the learned counsel for the landlord into a visual squalor. Extensive alterations, additions and new constructions were carried out clandestinely in the main bungalow. All these constructions were made sometime in February 2001. 8. The plaintiffs-landlord for these reasons sent notice dated 24.8.2002 under Section 106 of Transfer of Property Act to the tenant thereby terminating his tenancy and calling upon the defendant to vacate the suit property. The said notice was personally served upon the defendant-tenant and evasive, false and vague reply was given by the tenant on 24.9.2002 through his counsel. It has been submitted by the landlord’s counsel that the property in suit is exempted from the operation of Act 13 of 1972 in view of fact and monthly rent of demised property was admittedly above Rs. 2000 per month. It has been submitted by the landlord’s counsel that the property in suit is exempted from the operation of Act 13 of 1972 in view of fact and monthly rent of demised property was admittedly above Rs. 2000 per month. A residential house/Bungalow in the cantonment of Agra fetch more than Rs. 2000/- per month as rent and were not exempted by rent laws i.e. U.P. Act. No. 13 of 1972. No protection of the said Act can be claimed by the tenant. 9. When the property was not vacated a suit No. 39 of 2002 was filed by the landlord seeking eviction claiming damages for illegal use and occupation for a suit property and mesne profits alongwith interest etc. The suit was contested by the tenant-defendant No. 1 before the J.S.C.C, and in this Court also. 10. According to Shri B.D. Mandhyan, learned Senior Advocate, the tenant was not paying Rs. 5,000/- through cheque and Rs. 4,000/- in cash. The tenant had denied that he had raised unauthorised construction in the property and change the nature of the residential bungalow. It is submitted by him that temporary constructions were built after seeking permission of the landlord. According to him, he was legally entitled to put temporary structure as per the terms and conditions of the lease. Thus, the tenant has conceded in para 4 of the written statement filed before J.S.C.C. that there existed a lease executed between the landlord and tenant. The allegations of diminishing the value of the property making structure etc have been categorically denied by the tenant. There was no reason to sent the legal notice. The tenant had later on enhanced the rent to Rs. 25,000/- per month. This rent was to be shared by five landlords. The tenancy was continuing at the time of issuing of the notice and there was no breach of any of the terms and conditions of the lease. 11. Shri Satish Mandhyan, learned counsel for the tenant had put a different story before the Court. According to him, the premises i.e. 43, Mall Road, Agra Cantt. Agra were taken on lease by the tenant Abdul Majid Mir from Smt. Vidhya Ghai wife of late Col. Kishan Lal Ghai, the original landlord. A deed was executed on 15.4.1975 whereby Rs. 1000/- per month was fixed as a rent. According to him, the premises i.e. 43, Mall Road, Agra Cantt. Agra were taken on lease by the tenant Abdul Majid Mir from Smt. Vidhya Ghai wife of late Col. Kishan Lal Ghai, the original landlord. A deed was executed on 15.4.1975 whereby Rs. 1000/- per month was fixed as a rent. The building was let out for the purpose of residence as well as carrying out business. Smt. Vidhya Ghai had given permission and consent for carrying out the business from the rented property. The tenancy was to continue forever and was not terminable, however, the rent was to be enhanced in future. The taxes were also to be paid by the tenant to the landlord. Later on the bathroom, toilet facility etc. were provided by the landlord by raising the rent. Later on, consolidated rent of Rs. 5,000/- per month was being paid to Smt. Vidhya Ghai through Account Payee Cheques, which was the accepted mode of payment according to which the monthly rent was debited from the account of this defendant and credited to the account of Smt. Vidya Ghai. Later on the Account was transferred in the name of Col. Bharat Bhushan Ghai. However, the tenant started paying rent to Col. Bharat Bhushan Ghai. Interestingly, defendant No. 2 Shri V.K. Ghai filed a separate written statement alleging that he is the sole owner of the property i.e. 43, Mall Road, Agra and as such he alone (V.K. Ghai) was entitled to get the premises vacated. A rent deed was executed between Abdul Mazid Mir and V.K. Ghai on 4.5.2005 at Agra in respect of the property. This written statement was filed later on i.e.22.11.2005, while the suit was preferred in the year 2002. 12. After a hot contest between the rival parties i.e. the landlord-tenant, the suit was ultimately decreed in favour of the landlord by the J.S.C.C. Agra on 23.5.2006. The Trial Court had framed the following issues. 1. Kya Prativadi Sankhya-1 Vaadigarh ka vivadit sampati sankhya-43 Mal Road Agra Cantt. Agra ka 9000/- Rupaye masik ka kirayendar hai? 2. Kya Makan Khali karne ka notice gair kanooni va avaidh hai jais ki prativadi sankhya -1 ne para-24 va 24 a prativad patra mein katahn kiya hai? 3. Kya Vivadit sampatti ka vivad uttar pradesh adhiniyam sankhya -13 sun 1972 ke pravdhano se mukt hai? 4. Agra ka 9000/- Rupaye masik ka kirayendar hai? 2. Kya Makan Khali karne ka notice gair kanooni va avaidh hai jais ki prativadi sankhya -1 ne para-24 va 24 a prativad patra mein katahn kiya hai? 3. Kya Vivadit sampatti ka vivad uttar pradesh adhiniyam sankhya -13 sun 1972 ke pravdhano se mukt hai? 4. Kya Vaad Dhara-20 uttar pradesh adhiniyam sankhya-13 sun 1972 se badhit hai? 5. Kya Vaadigarh madhyvarti labh prativadi sankhya-1 se paane ke adhikari hai, yadi ha to kis dar se? 6. Kya prativadi sankhya-2 prativadi sankhya-1 ke paksh mein nishpadit patta dinankit 4.5.2000 ka is vaad par kay prabhav hai? 7. Vaadigarh kis anutosh ko paane ke adhiarki hai? 13. Oral and documentary evidence, details of which have been given by the J.S.C.C. in the judgments were produced. A large number of documents were filed by the landlords. Some documents were filed by the tenant and witnesses were examined by the parties. 14. Most of the issues were decided in favour of the landlords. In respect of issue No. 1, the Court below has held that Rs. 5,000/- per month was a monthly rent which was being paid through cheque by the tenant. It was not Rs. 9,000/- per month as alleged by the landlord. The J.S.C.C. after a detailed discussions gave findings in detail decreeing the suit and ordered for eviction of the tenant within three months. He was directed to pay the rents, arrears of rent w.e.f. 30.4.2004 i.e. from the date of the institution of the suit. Other benefits were also allowed to the landlord vide judgment and order dated 23.5.2006. 15. Shri B.D. Mandhyan, learned counsel for the revisionist-landlord has led the Court to the pleadings of the parties, judgment rendered by the Court below. According to him, construction in the rented bungalow were raised after seeking valid permission from executor of the lease Smt. Vidhya Ghai. A notice under Section 106 of T.P. Act was illegal as no violation of terms and conditions indicated in the patta/lease deed, were done by the landlord. The patta/lease was renewable after five years on enhancement of rent by 25 per cent. Much emphasis was laid by Shri Satish Mandhyan that the revisionist-tenant is prepared to pay the enhanced rent. A notice under Section 106 of T.P. Act was illegal as no violation of terms and conditions indicated in the patta/lease deed, were done by the landlord. The patta/lease was renewable after five years on enhancement of rent by 25 per cent. Much emphasis was laid by Shri Satish Mandhyan that the revisionist-tenant is prepared to pay the enhanced rent. He has given chronology of events of the case in his own way and submits that the tenant had always paid the rent demanded by the landlord. According to him, the amendment in the Act No. 13 of 1972 was brought about in the year 1995, which was treated to be effective from 29.9.1994. The property is situated in Cantonment of Agra and the Amendment Act of 1995 was not adopted by the Central Government therefore, the landlord-tenant relationship will be governed by the Act No. 13 of 1972. The suit itself was barred by Section 20 of U.P. Act No. 13 of 1972. The rent was duly accepted after 24.8.1972, therefore the suit was not maintainable and was barred by Order 7 Rule 11 CPC. 16. During the pendency of the suit Shri V.K. Ghai, defendant No. 2 asserted himself sole owner of the residential house as per the will, said to be executed by Smt. Vidhya Ghai on 28.3.2000. Shri V.K. Ghai executed a registered deed on 1.5.2004 in favour of the tenant Abdul Mazir Mir for five years. The revisionist-tenant was required to pay Rs. 25,000/- per month as rent. During the pendency of the suit, the tenancy was affirmed for five years, therefore, the notice dated 24.8.2002 terminating the tenancy was rendered illegal and stood waived. 17. Shri B.D. Mandhyan, has lastly submitted that this Court while entertaining the revision was pleased to direct the revisionist to pay the rent @ Rs. 25,000/- per month and the said amount is being deposited since August 2006. The amount is being withdrawn by all the landlords including plaintiffs (respondents herein). All the co-sharers had accepted the rent even after the suit was decreed. Therefore, inference can be drawn that they have waived the notice and the tenancy is not terminated. 18. There are several decisions that if the property is owned by several co-shares then all of them must agree to give the notice terminating the tenancy. All the co-sharers had accepted the rent even after the suit was decreed. Therefore, inference can be drawn that they have waived the notice and the tenancy is not terminated. 18. There are several decisions that if the property is owned by several co-shares then all of them must agree to give the notice terminating the tenancy. Here V.K. Ghai, defendant No. 2, who was the owner, he was not interested in evicting the revisionist. He has concluded after making detail submissions that since the co-owners, share holders have accepted the rent deposited by the tenant, it would amount waiver of the notice terminating the tenancy. Hence suit is liable to be dismissed and the revision be allowed. 19. Shri M.K. Gupta and Shri Manish Tandon, learned counsel for the respondent had strenuously opposed the revision. 20. Shri M.K. Gupta has taken the Court to the contents of the plaints, written statements, documents placed on record, statement of witnesses, cross-examination and drawn attention of the Court to the findings and conclusions recorded by the J.S.C.C, Agra. According to Shri Manish Tandon, a legal valid notice was duly served on the revisionist-tenant under Section 106 of T.P. Act. He had responded to the notice. During the pendency of the suit, defendant No. 2 V.K. Ghai, with ulterior motive, colluded with the tenant, filed his written statement with incorrect assertions, mislead the Court and confused the issues. According to him, Smt. Vidhya Ghai land owner’s wife was merely having a share in the property not the entire property. After the death of Lt. Col. Kishan Lal Ghai, Col. Kapil Dev Ghai, Col. Bharat Bhushan Ghai and Shri V.K. Ghai and Smt. Swarna Lata became co-owners of the said property having their shares. Lt. Col. Bharat Bhushan was entrusted to look after affairs of the family and property i.e. 43, Mall Road, Agra Cantt. Agra. The rent was being tendered to him by the tenant. The notice was served on the tenant on behalf of the opposite party in the year 2002. No objection was ever raised by Shri V.K. Ghai to the issuance of the notice and filing the suit in the year 2002. The suit continued and was being contested by the tenant. It is only in the year 2004-05, a separate written statement was filed by Shri V.K. Ghai to give a different colour to the dispute. No objection was ever raised by Shri V.K. Ghai to the issuance of the notice and filing the suit in the year 2002. The suit continued and was being contested by the tenant. It is only in the year 2004-05, a separate written statement was filed by Shri V.K. Ghai to give a different colour to the dispute. The J.S.C.C has dealt with this point and rendered a detailed finding on this issue.. 21. Attention of the Court was drawn that the suit was instituted in the year 2002. The written statement was filed by the tenant on 16.7.2003. Thereafter the plaintiffs-opposite parties led their evidence and cross-examination of the tenant had already taken place which has come on record. The will produced by Shri V.K. Ghai is a forged document. It was not attested nor witnessesed by any person. Even during the pendency of the suit, the defendant No. 2 had only 1/4th share and as such was not authorised to execute any lease deed for the entire property without the consent of the other co-sharers/landlord. 22. The J.S.C.C. has dealt with the materials on record, taken note of the submissions of the rival parties. There was a single tenancy and even the rent was being paid by the tenant. The tenant had himself admitted that the rental P.M. was Rs. 25,000/- as such he was paying a meager rent of Rs. 5,000/- for occupying a large property and that too in the posh area of district Agra. The defendant-tenant had made material alterations in the property. The present rented value of the demised property is not less than Rs. 50,000/- per month. A petty amount of Rs. 5,000/- which is no rent in the eye of law is being paid by the tenant. Learned counsel for the respondents has led the Court to the findings recorded by the J.S.C.C and other materials to demonstrate that there is no illegality or jurisdictional error in the judgment rendered by the J.S.C.C. 23. According to the learned counsel for the respondents the law is settled that in respect of a joint property, one co-owner can also send a notice and file eviction suit. The other co-owners cannot withdraw his consent midway to prejudice the other co-owners. According to the learned counsel for the respondents the law is settled that in respect of a joint property, one co-owner can also send a notice and file eviction suit. The other co-owners cannot withdraw his consent midway to prejudice the other co-owners. When the notice was served in the year 2002 and the suit was instituted all the co-owners, co-sharers had agreed to served notice on the tenant and filed a suit. Learned Counsel for the respondents has placed reliance upon a judgment rendered by the Apex Court in M/s. India Umbrella Manufacturing Co. and others v. Bhaganbandei Agarwalla (Dead) by L.R.s, AIR 2004 SCW 184, and others in support of his submission. 24. Shri V.K. Ghai entered in the litigation in the year 2005 by filing a separate written statement, which would not affect the right of other co-sharers of the property. A notice cannot be said to be waived even after accepting higher rent as the same was offered by the tenant to the landlord as has been held by Hon’ble Apex Court in Sarup Singh Gupta v. S.Jagdish Singh and others, 2006 AIR SCW 1966. 25. It was further submitted by the learned counsel for the landlord that Act No. 13 of 1972 will not be applicable as the inserted clause by U.P. Amendment Act 5 of 1995 w.e.f. 26.9.1994 will apply to all the buildings having rent of more than Rs. 2,000/- The same view has been taken by this Court in Punjab National Bank, Ghaziabad v. Dr. Rajendra Nath Azad, 1996(1) ARC 348. 26. Learned counsel for the landlord has summed up that there is no illegality in the judgment rendered by the J.S.C.C. 27. I have heard learned counsel for the parties and carefully gone through the impugned judgment, pleadings of the parties and materials brought on record. 28. From the chronology of events and factual matrix, it is amply clear that the premises i.e.43, Mall Road, Agra Cantt. Agra was purchased by late. Col. Kishan Lal Ghai by a registered sale deed executed in the year 1964. It has also come on record that Lt. Col. Kishan Lal Ghai had died intestate. It is admitted to the parties that he had three sons and a daughter. Agra was purchased by late. Col. Kishan Lal Ghai by a registered sale deed executed in the year 1964. It has also come on record that Lt. Col. Kishan Lal Ghai had died intestate. It is admitted to the parties that he had three sons and a daughter. After the death of the original landlord the entire property devolved on his widow, three sons and a daughter in equal shares as per the relevant provisions contained in the Hindu Succession Act. Thus, they are co-sharer of the property. It has also come on record that Col. Bharat Bhusan Ghai was managing affairs of the family and property. A legal notice was sent by him to the tenant in the year 2002 but the tenant had given evasive, false and vague reply through his counsel. The point of ownership was not challenged by the tenant. The suit was filed to which the written statement was filed by the tenant. In the written statement filed by the tenant no such dispute was raised. One of the brother i.e. Shri V.K. Ghai son of Lt. Col. Kishan Lal Ghai entered into the scene by filing a separate written statement in the year 2005. He had claimed that he was owner of the entire property on the basis of a unregistered will said to be executed by his mother Smt. Vidhya Ghai. The J.S.C.C and this Court has taken note that Smt. Vidhya Ghai W/o Lt. Col. Kishan Lal Ghai was having merely a share in the property in dispute. As per history of acquisition of share, she was not the sole owner of the bungalow rather it was shared by five family members left behind by Late Lt. Col. Kishan Lal Ghai, the original landlord. Interestingly, the Court had found the will allegedly executed by the Smt. Vidhya Ghai was not registered. It was neither attested nor witnessed by any person. It does not fulfill the requirement of law i.e. Section 68 of the Evidence Act . 29. The defendant No. 2 had only 1/4th share in the property in dispute as such he was not authorised to execute any lease deed for the entire demised property without seeking consent of the other co-sharers. The Court has rightly rejected the claim of the V.K. Ghai, respondent No. 2. 30. 29. The defendant No. 2 had only 1/4th share in the property in dispute as such he was not authorised to execute any lease deed for the entire demised property without seeking consent of the other co-sharers. The Court has rightly rejected the claim of the V.K. Ghai, respondent No. 2. 30. There is sufficient force in the argument of Shri Manish Tandon, learned counsel for the landlord that Shri V.K. Ghai had entered the scene as a Trojan horse to defeat the purpose of the litigation set out by the erring tenant, Abdul Majid Mir, revisionist. When the defendant-tenant realised that the suit was going to be decreed, he colluded with the defendant No. 2 and got his written statement filed in the month of 2005 alleging that Shri V.K. Ghai was the exclusive owner on the basis of forged and fabricated unregistered will of his mother Smt. Vidhya Ghai. Smt. Vidhya Ghai was having only 1/4th share only in the property. How she could execute the will of the entire property in the name of one son excluding the other two sons and one daughter. The J.S.C.C. had taken note of this collusive action and has recorded a detailed and well reasoned finding over this issue. 31. The findings of J.S.C.C. is based on oral and documentary evidence. The defendant No. 2 V.K. Ghai had admitted his testimony in the Court of law that he had not filed any will before the Trial Court. In such circumstances the Court below was fully justified in not taking the notes of the lease deed executed by V.K. Ghai, defendant No. 2 in favour of the tenant alleging himself sole owner of the demised premises and as such the tenant cannot derive any benefit on the basis of alleged lease deed. It appears that the fabricated manufactured case was set up before the Court by the tenant with the collusion of one of the brother of said family tree. The J.S.C.C. has taken note that co-sharers had never consented to execute the alleged deed at the cost of their interest. The whole story, as set out by the tenants in collusion with Shri V.K. Ghai, appears to be concocted and manufactured. The tenant has not come to the Court with clean hands. 32. The J.S.C.C. has taken note that co-sharers had never consented to execute the alleged deed at the cost of their interest. The whole story, as set out by the tenants in collusion with Shri V.K. Ghai, appears to be concocted and manufactured. The tenant has not come to the Court with clean hands. 32. The J.S.C.C. had noted that the construction was raised in the rented premises on the open land without seeking permission of the landlord. Smt. Vidhya Ghai, who was having 1/4th share in the property and how can she permit the tenant to raise unauthorised construction in the rented bungalow. As per the learned Court below, material alterations were raised in the bungalow which diminished its value as well as nature of the property. It is borne out of the record and the findings recorded by J.S.C.C. that there was a single tenant and even the rent was being tendered to one person i.e. Col. Bharat Bhushan Ghai. The tenant has failed to discharge his burden and prove his case regarding existence of three separate tenancies. He was completely failed to prove his case beyond doubts. 33. From the facts, legal provisions i.e. U.P. Act 5 of 1995 containing specific provision that any building, monthly rent of which exceeds Rs. 2000/- shall not be governed by the provisions of the Act No. 13 of 1972 and admittedly in the present case the rent was Rs. 5,000/- per month and as such the rented premise in dispute was not covered by Act No. 13 of 1972. The findings recorded by J.S.C.C. are unassailable in this regard. 34. In view of above discussions, there is no illegality and infirmity in the judgment and order passed by J.S.C.C. Agra and there is no error of jurisdiction. The revision is liable to be dismissed. 35. Accordingly, the revision No. 322 of 2006, preferred by Sri Abdul Majid Mir is dismissed and revision No. 272 of 2008 preferred by Col. Kapil Dev Ghai and another is allowed. 36. All the necessary consequence shall immediately follow. ————