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2013 DIGILAW 826 (ALL)

KHURSHEED v. SILLU

2013-03-14

KRISHNA MURARI

body2013
JUDGMENT Hon’ble Krishna Murari, J.—Heard Sri Faheem Ahmad, learned counsel for the petitioner and Sri C.V.S. Raghuvansi for the respondent. Dispute relates to shop No. 1 situated at Mohalla Afganan, Dhampur Road, Qasba and Pargana Nahtaur, district Bijnor, which was let out to the petitioner-tenant in May, 1995 on a monthly rent of Rs. 500/- per month excluding tax and electricity dues. vide notice dated 2.8.2005 respondent-landlord terminated the tenancy by giving one month notice. Arrear of outstanding rent of nine months was also claimed. When the tenant-petitioner failed to pay the rent and vacate the premises, suit No. 48 of 2005 was filed before the Judge, Small Causes Court seeking a decree of eviction and arrears of rent. 2. Suit was filed on the allegation that sanction for construction was accorded by Nagar Palika Parishad, Nahtaur on 20.5.1994 and the construction was completed in February, 1995 and it was let out in 1995 on a monthly rent of Rs. 500/-. It was also pleaded that tenancy was from month to month beginning from first of every month and the tenant was in arrears of rent since 1.11.2004. The suit was contested by the tenant-petitioner by filing written statement denying the plaint allegation. It was pleaded in the written statement that shop in dispute was constructed in the year 1980 and thus was within the purview of U.P. Act No. XIII of 1972 and the alleged sanction by the Nagar Palika Parishad in 1994 is forged and fabricated and has been obtained in collusion with the employees of the Nagar Palika Parishad. It was further pleaded that despite tender of rent on various occasions, the same was refused by the respondent-landlord and money order sent was also refused. 3. Respondent-landlord apart from oral evidence filed the application for permission of construction, copy of the house tax receipts, receipts for payment of electricity charges, copy of the notice terminating the tenancy and first assessment for 1995-2000 as documentary evidence. Tenant-petitioner apart from examining himself filed the money order receipt, challan form of depositing the amount as documentary evidence. 4. Trial Court after considering the evidence of the parties held that petitioner was a tenant on a monthly rent of Rs. 500/- and the provisions of Act No. XIII of 1972 were not applicable as the shop was constructed in 1995. 4. Trial Court after considering the evidence of the parties held that petitioner was a tenant on a monthly rent of Rs. 500/- and the provisions of Act No. XIII of 1972 were not applicable as the shop was constructed in 1995. It was further held that since the provision of the Act are not attracted the tenant-petitioner is not entitled to benefit of Section 20(4) of the Act and the tenancy has been terminated by a valid notice. On the basis of the said finding the suit was decreed. Aggrieved by the order, tenant-petitioner went up in revision which was dismissed and the findings of the trial Court was affirmed. 5. It is contended by learned counsel for the petitioner that the both the Courts below have wrongly held that the shop in dispute was constructed in 1995 though it was proved by oral evidence adduced by the petitioner that it was constructed in 1980 and the provisions of Act No. XIII of 1972 are applicable. It is further submitted that entire rent having been deposited, the tenant-petitioner was entitled for the benefit of Section 114 of the Transfer of Property Act (in short the ‘Act’). 6. In reply, it is submitted by learned counsel for the respondent that it was established by cogent documentary evidence that the shop was constructed in the year 1995 and was subject to tax assessment for the first time in 1995, as such, the provisions of Act No. XIII of 1972 are not applicable and both the Courts below have rightly held that the tenant-petitioner was not entitled to the benefit of Section 20(4) of the Act. It has further been submitted that there being no agreement between the parties in existence, the tenancy was terminated under Section 106 of the Act. Section 111 of the Act was not attracted and the benefit of Section 114 of the Act was not applicable. 7. I have considered the argument advanced by learned counsel for the parties and perused the record. Application seeking permission for construction made in April, 1994, sanction accorded by the Nagar Palika Parishad on 20.5.1994 and the first assessment made in 1995 were filed by the respondent-landlord as documentary evidence. On the contrary, no documentary evidence has been adduced by the tenant-petitioner in support of his case that the shop in dispute was constructed in 1980. Application seeking permission for construction made in April, 1994, sanction accorded by the Nagar Palika Parishad on 20.5.1994 and the first assessment made in 1995 were filed by the respondent-landlord as documentary evidence. On the contrary, no documentary evidence has been adduced by the tenant-petitioner in support of his case that the shop in dispute was constructed in 1980. It is well-settled that unless proved to the contrary by cogent evidence normally, the date of first assessment of the building is to be treated as the date of completion of the construction. In the absence of any evidence led by the tenant-petitioner, the findings of the two Courts below that the shop in dispute was constructed in 1995 and the provision of Act No. XIII of 1972 are not attracted based on first assessment made by the local authority in the year 1995 cannot be faulted with. Oral evidence led by the tenant-petitioner to establish the fact that the shop was constructed in 1980 has rightly been disbelieved by the Courts below in the light of the documentary evidence adduced by the respondent-landlord. The contention that the building is outside the purview of U.P. Act No. XIII of 1972 and the deposit of entire outstanding arrears even if made is of no avail to the tenant-petitioner and the petitioner is not entitled to get the benefit extended by Section 20(4) of the Act No. XIII of 1972. The argument that tenant-petitioner having deposited entire amount was entitled to be relieved from the decree of eviction under Section 114 of the Act also cannot be accepted. Section 111 of the Transfer of Property Act reads as under : “111. The argument that tenant-petitioner having deposited entire amount was entitled to be relieved from the decree of eviction under Section 114 of the Act also cannot be accepted. Section 111 of the Transfer of Property Act reads as under : “111. Determination of lease.—A lease of immovable property, determines - (a) by efflux of the time limited thereby; (b) where such time is limited conditionally on the happening of some event- by the happening of such event; (c) where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any event- by the happening of such event; (d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right; (e) by express surrender, that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them; (f) by implied surrender; (g) by forfeiture, that is to say, (1) in case the lessee breaks an express condition which provides that on breach thereof the lessor may re-enter; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessee or his transferee gives notice in writing to the lessee of his intention to determine the lease; (h) on the expiration of a notice to determine the lease, or to quit or of intention to quit, the property leased, duly given by one party to the other” “114. Relief against forfeiture for non-payment of rent.—Where a lease of immovable property has been determined by forfeiture for non-payment of rent, and the lessor sues to eject 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 costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred. 114-A. Relief against forfeiture in certain other cases.—Where a lease of immovable property has been 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. Nothing in this Section shall apply to an express condition against 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.” 8. On a combined reading of the aforesaid provisions, it is clear that benefit of Section 114 of the Act is available to only such cases where tenancy is forfeited in accordance with the provision of Section 111(g) which necessarily requires existence of an agreement in writing between the parties containing a stipulation to re-enter in the demise premises in case of a breach of condition. 9. In the case in hand, neither there was any agreement nor U.P. Act No. XIII of 1972 nor U.P. Act No. XIII of 1972 stands attached and the tenancy was terminated by serving a notice under Section 106 of the Act, therefore, Section 114 of the Act has no application and the benefit provided thereunder is not liable to be extended to the petitioner. Mere fact that the notice contained a demand for outstanding arrears of rent and demand of vacant possession besides termination of monthly tenancy would not make it a case of forfeiture under clause (g) of Section 111 of the Transfer of Property Act and it would remain a case simplicitor termination of tenancy by a notice under Section 106 of the Transfer of Property Act. The view taken by me finds support from the judgment of the learned single in the case of Abdul Sattar v. VIth Additional District Judge, Allahabad and others, 1994 ARC 117, Bhagwan Dass Gupta v. Xth Additional District Judge, Aligarh and others, 1998(2) ARC 263 and Arun Kumar v. VIII Additional District Judge, Budaun and another, 2002(2) ALR 660. In view of aforementioned facts and discussions, the impugned orders passed by the trial Court that of the revisional Court do not require any interference by this Court under Article 226 of the Constitution of Inida. In the result, writ petition fails and stands dismissed. However, there shall be no order as to costs. —————