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2013 DIGILAW 237 (UTT)

Hukam Chand v. Harnam Singh

2013-05-02

B.S.VERMA

body2013
Judgment : This appeal is directed against the judgment and decree dated 25.11.1980 passed by Civil Judge, Dehradun in Civil Appeal No.85 of 1978. 2. Briefly stated facts of the case, giving rise to this second appeal, as per plaint’s case are, that plaintiffs/respondents are the owners of vacant plot of land bearing no.46 Saharanpur Road, Dehradun. This land was let out to defendant/appellant @ Rs.15/- per month. Before filing the regular suit on the ground of default, one month’s notice was given to the defendant to terminate his tenancy, which was served upon him and ultimately the tenancy was terminated. The suit was contested by the defendant by filing his written statement alleging that one Sri Gopal Krishan has taken on rent the premises in suit from its previous owner for establishing a mill to manufacture Dal, Maida, Suji and flour, etc. and has installed mill and machineries for the manufacture of the aforesaid articles. It was also alleged that when the defendant took the premises in suit on rent, the aforesaid machineries were installed. The defendant has taken the premises in suit for manufacturing purposes. The defendant was ready to pay the rent of the premises. He further alleged that he also installed an electric connection in the year 1963 and invested huge amount in changing the machineries and in installing additional machineries for cotton ginning and grass cutter, etc. He has not committed any default in paying the rent. According to the plaintiff/respondent, vacant land was given to the appellant. D.W.1 has stated that he has taken this land from Smt. Bhagwati Devi. He has also stated that an agreement paper no.34-Ka was executed in between the parties. After a perusal of paper no.34-Ka, the trial court as well as the appellate court gave a categorical finding on the issue that the land was not taken for manufacturing purposes. It was given temporarily for residence and business. By the judgment and decree dated 12.7.1978, the trial court decreed the suit of the plaintiff/respondent. Feeling aggrieved, the defendant/appellant preferred an appeal before the Civil Judge, Dehradun, which was also dismissed vide impugned judgment and order dated 25.11.1980. Further aggrieved, this second appeal has been filed by the defendant/appellant. 3. This second appeal was filed by the defendant/appellant before the Allahabad High Court and it got admitted on 6.1.1981. Feeling aggrieved, the defendant/appellant preferred an appeal before the Civil Judge, Dehradun, which was also dismissed vide impugned judgment and order dated 25.11.1980. Further aggrieved, this second appeal has been filed by the defendant/appellant. 3. This second appeal was filed by the defendant/appellant before the Allahabad High Court and it got admitted on 6.1.1981. After creation of the State of Uttarakhand, this case has been transferred to this High Court u/s 35 of U.P. Reorganization Act. It transpires that at the time of admission, no substantial question(s) of law were framed. This Court, in exercise of Section 100(4) of C.P.C., frames the following substantial questions of law which arises for consideration:- i) Whether the trial court has committed manifest error of law in not giving benefit of Section 29-A of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972? ii) Whether the trial court has committed manifest error of law in not giving benefit of Section 114-A of the Transfer of Property Act, 1882? iii) Whether the trial court has erred in law in not giving benefit of Section 60 of The Indian Easements Act, 1882? 4. The pleas with regard to the substantial questions of law, which have been framed in this appeal, have been taken before the learned trial court and the learned trial court has given a specific finding on these issues as to why the benefit was not extended to the defendant/appellant. Question No.1 5. Section 29-A of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 applies only to land let out, either before or after the commencement of this section, where the tenant, with the landlord’s consent has erected any permanent structure and incurred expenses in execution thereof. 6. In the case at hand, this fact is not disputed that no such permission was given to make permanent structure on the land in question. According to the plaintiff himself, open land was leased out to him and prior to it the machineries were installed by defendant but there is no mention of this fact in the paper no.34-ka lease agreement. The learned trial court has rightly held that there is no mention of any fact that the land is being taken for any manufacturing purpose as has been mentioned in the written statement. This fact is also not disputed that no consent was taken. The learned trial court has rightly held that there is no mention of any fact that the land is being taken for any manufacturing purpose as has been mentioned in the written statement. This fact is also not disputed that no consent was taken. If there is no consent, although it is a permanent structure, as per statement the machineries are installed and there are tin-shades over the roof, therefore the trial court has held that it cannot be said to be a permanent structure. Therefore, in any case, the defendants/appellants are not entitled for benefit of Section 29-A of the Act. Both the courts below have rightly given finding on this issue. Accordingly, the question is answered in negative. Question No.2 7. On this issue also, the courts below has held that Section 114-A of the Transfer of Property Act, 1882 is not attracted in the case at hand. It only applies where a lease of immoveable property has determined by forfeiture for a breach of an express condition which provides that on breach thereof the lessor may re-enter, no suit for ejectment shall lie unless and until the lessor has served on the lessee a notice in writing- (a) specifying the particular breach complained of; and (b) if the breach is capable of remedy, requiring the lessee to remedy the breach; and the lessee fails, within a reasonable time from the date of the service of the notice, to remedy the breach, if it is capable of remedy. 8. Section 114A further provides nothing in this section shall apply to an express condition against the assigning, under-letting, parting with the possession, or disposing, of the property leased, or to an express condition relating to forfeiture in case of non-payment of rent. 9. A perusal of the above section goes to show that these conditions are not at all applicable to the case at hand. In the agreement, there is no such condition for which benefit of Section 114A of the Act could be given to the appellant/defendant. Therefore, the learned trial court as well as the appellate court has rightly held that the defendants are not entitled for benefit of Section 114-A of the Act. The tenancy in the case at hand is a month-to-month tenancy and it could have been terminated under Section 106 of the Act. Therefore, the learned trial court as well as the appellate court has rightly held that the defendants are not entitled for benefit of Section 114-A of the Act. The tenancy in the case at hand is a month-to-month tenancy and it could have been terminated under Section 106 of the Act. Further, in the present case there is no relief against forfeiture. 10. In case of Sri Waheed Ahmad vs. Additional District Judge/Judge, Small Causes (U.M.C.), Dehradun, 2010 (2) U.D. 49 , this Court has held that where the tenancy had been determined by forfeiture under Section 111 (g) of the Act, the tenant could claim benefit under Section 114 of the Act. Since the tenancy in the cited case had been terminated under Section 106 of the Act, relief under Section 114 of the Act could not be claimed. 11. In the case of Yashpal Lala Shiv Narain v. Allatala Tala Malik Waqf Ajakhan Mus, AIR 2006 ALL 115 , it has been held by the Allahabad High Court that when the notice to quit has been issued under Section 111 (h) read with Section 106 (as is the position in the case at hand) and there was demand for arrears of rent and taxes to be paid within one month but same was not ground for determination of lease, protection under Section 114 of the Act is not available to the petitioner. 12. Question No.2 is accordingly answered in negative. Question No.3 13. Since it is a lease and it is not a licence irrevocable and in case of tenant and landlord the provision of Section 60 of The Indian Easements Act is not attracted. The finding given by the courts below on this issue are absolutely correct. Question is accordingly answered in negative. 14. In view of the discussion made in preceding paragraphs, the appeal lacks merit and is dismissed. Impugned judgment and decree dated 25.11.1980 passed by Civil Judge, Dehradun in Civil Appeal No.85 of 1978, is upheld. Interim order passed by this Court dated 6.1.1981 is vacated. The appellants/defendants are directed to handover peaceful and vacant possession to the plaintiff/respondents within a period of three months.