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2014 DIGILAW 2818 (ALL)

Gomti Devi v. District Judge, Unnao

2014-09-10

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri Anoop Trivedi, for the petitioner, who has filed review petition. 2. The writ petition was filed for quashing the orders of Judge Small Cause Court (respondent-2) dated 28.05.2014, rejecting the application (191-C) dated 18.09.2013, application (198-C) dated 15.01.2014 under Section 23 of Provincial Small Causes Court Act, 1887, and application (205-C) dated 10.04.2014, for referring the issue for deciding the nature of the rented accommodation, under Section 331-A of U.P. Zamindari Abolition and Land Reforms Act, 1950 to Assistant Collector, in SCC Suit No. 7 of 2003 and District Judge (respondent-1) dated 18.07.2014, dismissing the revision of the petitioner and enhancing mesne profit and directing to trail court to proceed in the suit on day to day basis and decide it within two months. After hearing the parties writ petition was dismissed by judgment dated 08.08.2014. 3. The fact of the case is that Shanti Devi and others (respondents-3 to 7) (hereinafter referred to as the plaintiffs) filed a suit (registered as SCC Suit No. 7 of 2003), for ejectment of the petitioner from the premises described in paragraph-2 of the plaint and for mesne profit at the rate of Rs. 1500/- per day. It has been stated in the plaint that Ram Lal and Munna lal (now represented by the plaintiffs) were owner and landlord of the premises, situated over plots 63 and 64 of village Sahjani, tahsil and district Unnao, which consists of factory building, bunglow, godown, quarters, well and open vacant land of the area 2-1/2 bigha. Previous owners let out the premises to Smt. Gomati Devi (the defendant) through lease deed 18.12.1970 (registered on 22.12.1970) on the monthly rent of Rs. 1200/-. The lease was initially for a period up to 30.09.1980, with a clause of renewal for a further period up to September 1990 with the consent of the parties on same rent. Although, terms of the lease came to an end on 30.09.1990 but the defendant is continuing in possession of the premise in dispute with the consent of the plaintiffs. The defendant is not paying rent and is defaulter since November, 1997. Although, terms of the lease came to an end on 30.09.1990 but the defendant is continuing in possession of the premise in dispute with the consent of the plaintiffs. The defendant is not paying rent and is defaulter since November, 1997. The plaintiffs gave a registered notice to the defendant on 16.09.2003 asking her to give arrears of rent and vacate the premises in dispute but she through her reply dated 26.09.2003, denied the title of the plaintiffs and refused to give arrears of rent and vacate the premises. As such the suit was filed. 4. The petitioner contested the suit on the ground that apart from plaintiffs, daughters of Ram Lal and Munni Lal were also inherited buildings of the premises in dispute and they did not joint as the plaintiffs in the suit and the suit is liable to be dismissed for non-joinder of necessary parties. Rent had been paid time to time to the plaintiffs through bank drafts up to month of October, 2003. Provisions of U.P. Act No. XIII of 1972 are applicable on the premises in dispute and the defendant in compliance of Section 20 (4) of U.P. Act No. XIII of 1972 deposited entire amount claimed in the suit. After taking the premises in dispute on rent, the defendant had invested huge amount in it. Even on the allegations of the plaintiffs that the premises in dispute was let out for factory purposes, suit under the provisions of Provincial Small Causes Court Act, 1887 is not maintainable and the suit is liable to be dismissed under Order VII Rule 11 C.P.C. The defendant admitted execution of the agreement dated 18.12.1970 and stated that according to the terms of the lease deed six month prior notice was required to be given. After service of the notice dated 16.09.2003, the plaintiffs accepted rent of October, 2003 as such notice shall be deemed to have been waived. The suit has been mala fide filed to harass the defendant. Written Statement was amended and paragraph-18-A was added in it claiming her title over the premises in dispute. 5. The petitioner moved an application dated 01.12.2004 for dismissing the suit under Order VII Rule 11 C.P.C. as it was not maintainable in view of Section 15 of Provincial Small Causes Court Act, 1887. Written Statement was amended and paragraph-18-A was added in it claiming her title over the premises in dispute. 5. The petitioner moved an application dated 01.12.2004 for dismissing the suit under Order VII Rule 11 C.P.C. as it was not maintainable in view of Section 15 of Provincial Small Causes Court Act, 1887. That application was rejected by Trial Court by order dated 18.03.2005 and revision filed by the petitioner was dismissed on 12.04.2005. The petitioner filed Writ Petition No. 2597 (M/S) of 2005, in which initially interim order dated 02.05.2005 was granted. Later on it was dismissed in default on 05.08.2013. The petitioner filed an application dated 05.09.2013 for recall of the order, which is still pending. 6. The petitioner then filed the application (191-C) dated 18.09.2013 and reply application (198-C) dated 15.01.2014 under Section 23 of Provincial Small Causes Court Act, 1887, stating therein that as paragraph-18-A of written statement, it has been stated that the petitioner has filed a suit under Section 229-B of U.P. Act No. 1 of 1951 for declaring her as bhumidhar of the premises in dispute, which is pending as such intricate question of title between the parties was involved in the suit and it may be dismissed under Section 23 Provincial Small Causes Court Act, 1887. The petitioner also filed an application (205-C) dated 10.04.2014, for referring the issue relating to the nature of land of the rented accommodation, for decision to Assistant Collector under Section 331-A of U.P. Act No. 1 of 1951. The plaintiffs filed their objections (196-C and 199-C) to the aforesaid applications, stating therein that in the suit filed by the petitioner under Section 229-B, they had raised issue relating to maintainability of the suit before revenue court and against the order of Assistant Collector, they filed Revision No. 4 of 2010-11, before Board of Revenue, U.P., in which further proceeding of the suit has been stayed by order dated 17.02.2011 as such on this ground application under Section 23 was not maintainable. Constructions have already been raised over the land in dispute prior to 1970 as such no declaration under Section 143 of U.P. Act No. 1 of 1951 is required. The defendant, who admitted the tenancy, has no right to deny the title of the plaintiffs. Constructions have already been raised over the land in dispute prior to 1970 as such no declaration under Section 143 of U.P. Act No. 1 of 1951 is required. The defendant, who admitted the tenancy, has no right to deny the title of the plaintiffs. The petitioner has already raised such objection which has been rejected by the trial court by order dated 15.12.2006 holding that as loan has been taken before 1970 mortgaging the premises in dispute as such in view of Section 143 (3) of U.P. Act No. 1 of 1951, provisions of U.P. Act No. 1 of 1951 would not apply over it. 7. These applications were dismissed by Judge Small Causes Court, by order dated 28.05.2014. The petitioner filed a revision (registered as SCC Revision No. 7 of 2014) from the aforesaid order, which was dismissed by District Judge, by order dated 18.07.2014. The writ petition filed by the petitioner was dismissed on 08.08.2014 holding that factory premises along with appurtenant land was let out to the petitioner. Land lying in the factory premises partakes the nature of non-agricultural land and there was no tenancy for agricultural purpose. The petitioner is estopped from raising plea contrary to the lease deed. Suit for ejectment of tenant from industrial premises does not fall in any entry of Schedule II of U.P. Act No. 1 of 1951 and the suit is not barred under Section 331 of this Act. In view of the estoppel operating against the petitioner, issue relating to nature of the land is not required to be referred to Assistant Collector under Section 331-A as the lease deed is binding upon the petitioner, through which factory premises along with appurtenant land was let out for industrial purposes and the petitioner is estopped from raising the plea that land was agricultural land. Similar application was filed by the petitioner was rejected by Judge, Small Causes Court by order dated 18.03.2005. Subsequent applications raising same issues are barred by res-judicata. 8. The counsel for the review applicant submitted that this Court in its judgment relied upon Nalanikant Ramdas Gujjar Vs. Tulsibai, AIR 1997 SC 404 , in which provisions of Bombay Rents, Hotel and Lodging House Rent Control Act, 1947, was considered in which "premises" has been defined as (a) 'Any land not being used for agricultural purposes'. This Court further relied upon K. Bhagirathi G. Shenoy Vs. Tulsibai, AIR 1997 SC 404 , in which provisions of Bombay Rents, Hotel and Lodging House Rent Control Act, 1947, was considered in which "premises" has been defined as (a) 'Any land not being used for agricultural purposes'. This Court further relied upon K. Bhagirathi G. Shenoy Vs. K.P. Ballakuraya, AIR 1999 SC 2143 , in which provisions Section 3 (1) (ii) of Kerela Land Reforms Act, 1963, in which phrase "leases only buildings, including a house, shop or bare house and the site thereof, with the land, if any appurtenant thereto" was interpreted. Under Section 156 of U.P. Act No. 1 of 1951, restriction on letting of bhumidhari holding has been imposed, as such law laid down in the aforesaid cases have no application. Due to use of non-obstante clause in Section 165 of U.P. Act No. 1 of 1951, it has an overriding effect on any other law and also on the agreement itself as such there is no estoppel for the petitioner to raise a plea, contrary to the lease agreement and claim benefits of Section 165, which is a beneficial piece of legislation. This Court in Ala Uddin Vs.Hamid Khan, AIR 1971 All 348 , Dina Nath Verma Vs. Gokaran, 2003 ((94) RD 323, Veer Bal Singh Vs. State of U.P., 2009 (108) RD 124 and Satgur Dayal Vs. IV Addl. District Judge, 2013 (4) ALJ 595 , has consistently held that so long as declaration under Section 143 of U.P. Act No.1 of 1951 is not made, nature of bhumidhari land will not be changed by raising construction over a part of it and the provisions of U.P. Act No. 1 of 1951 will continue to apply over it. As no declaration has been made under Section 143 of the Act, as such the land remained bhumidhari land through out and its letting will confer a bhumidhar with non-transferable right to the lessee under Section 165 of U.P. Act No. 1 of 1951. Judgment of this Court suffers from error apparent on the face of record and is liable to be reviewed. 9. I have considered the arguments of the counsel for the review applicant and examined the record. Section 156 of U.P. Act No. 1 of 1951, imposes restriction on bhumidhar with transferable right and asami from letting his holding. Judgment of this Court suffers from error apparent on the face of record and is liable to be reviewed. 9. I have considered the arguments of the counsel for the review applicant and examined the record. Section 156 of U.P. Act No. 1 of 1951, imposes restriction on bhumidhar with transferable right and asami from letting his holding. Section 130 provides that a bhumidhar means a person who have been conferred bhumidhari right under the Act. Prior to 1977, bhumidhari right is conferred either under Section 18 or under Section 134 of the Act. In both these sections bhumidhari right has been conferred on the land. Under Section 156, restriction has been imposed upon letting of holding. As such "land" and "holdings" are relevant terms to be decided for deciding issue as to whether the restriction contained under Section 156 will apply and consequences given under Section 165 of the Act will follow. 10. In U.P. Act No. 1 of 1951 the word "land" has been defined under Section 3 (14) as "land except in Section 109, 143 and 144 and Chapter VII means land held or occupied for purposes connected with agriculture, horticulture or animal husbandry and includes pisciculture and poultry farming. In view of Section 3 (26), definition of "holding" as given in United Provinces Tenancy Act, 1939 is applicable, which defines "holding" under Section 3 (7) as "holding means a parcel or parcels of land held under one lease, engagement or grant or in the absence of any such lease, engagement or grant under one tenure and in case of a thekedar includes the theka area. Under Section 3 (10) of this Act word "land" has been defined as "land means land which is let or held for growing of crops, or as grove-land or for pasturage. It includes land covered by water used for the purpose of growing sighara or other produce, but it does not include land for the time being occupied by buildings or appurtenant thereto other than buildings which are improvements." 11. Thus a bare reading of the aforesaid definitions it is clear that a land can be said as bhumidhari land if the land is held or occupied for purposes connected with agriculture, horticulture or animal husbandry and includes pisciculture and poultry farming. Thus a bare reading of the aforesaid definitions it is clear that a land can be said as bhumidhari land if the land is held or occupied for purposes connected with agriculture, horticulture or animal husbandry and includes pisciculture and poultry farming. It is further clear that apart from exceptions given in Section 109, 143 and 144, a 'land' in order to be treated as 'land' within the meaning of the Act be held or occupied for purposes connected with agriculture etc. A conjoint reading of definition of 'holding' and 'land' as given in United Provinces Tenancy Act, 1939, land means land held for growing of crops, or as grove-land or for pasturage, which includes land covered by water used for the purpose of growing sighara or other produce, but it does not include land for the time being occupied by buildings or appurtenant thereto other than buildings which are improvements. 12. Section 142 of U.P. Act No. 1 of 1951 confers a right upon bhumidhar to use his land for any purpose, which means that there is no restriction for a bhumidhar to convert his land as non-agricultural land. Section 143 (1) confers a privilege upon bhumidhar, who has converted his land as non-agricultural land get a declaration in this respect. Section 143 (3) of U.P. Act No. 1 of 1951 provides that where a bhumidhar has been granted loan by Uttar Pradesh Financial Corporation on security of any land held by such bhumidhar, provisions of Chapter VIII will cease to apply. Judge, Small Causes Court by order dated 18.03.2005 held that the predecessors of the plaintiffs had taken loan from Uttar Pradesh Financial Corporation mortgaging the land in dispute as such provisions of Chapter VIII of U.P. Act No. 1 of 1951 will cease to apply. 13. Now the question arises as to whether a declaration under Section 143 of U.P. Act No. 1 of 1951 is only mode for treating a land as non-agricultural land. Had the intention of legislature been such and making Section 143 exhaustive, there would have been no other provision under the Act. Insertion of Section 331-A in the Act, by U.P. Act No. 37 of 1958 makes it clear that Section 143 is not the only provision under which nature of the land can be decided. Had the intention of legislature been such and making Section 143 exhaustive, there would have been no other provision under the Act. Insertion of Section 331-A in the Act, by U.P. Act No. 37 of 1958 makes it clear that Section 143 is not the only provision under which nature of the land can be decided. Suppose while deciding the issue referred under Section 331-A, Deputy Collector comes to the conclusion that on the date of letting land, was not land within the meaning of Section 3 (14) of the Act, then same consequences as given under Section 143 (2) will follow. Under the lease deed, it was admitted between the parties that the land in question was appurtenant land to the factory premises, which was let out to the petitioner for industrial purpose. The agreement, being admitted, is binding and in view of Section 92 of Evidence Act, 1872 no contrary plea can be raised by the petitioner as such in this case there is no issue in this respect between the parties, which require reference under Section 331-A. 14. In Nalanikant Ramdas Gujjar Vs. Tulsibai, AIR 1997 SC 404 , the provisions of Bombay Rents, Hotel and Lodging House Rent Control Act, 1947, was considered in which "premises" has been defined as (a) 'Any land not being used for agricultural purposes' has been used and in K. Bhagirathi G. Shenoy Vs. K.P. Ballakuraya, AIR 1999 SC 2143 , provisions Section 3 (1) (ii) of Kerela Land Reforms Act, 1963, in which phrase "leases only buildings, including a house, shop or bare house and the site thereof, with the land, if any appurtenant thereto" has been used and interpreted. In Section 3 (14) of U.P. Act No. 1 of 1951 phrase "land means land held or occupied for purposes connected with agriculture, horticulture or animal husbandry and includes pisciculture and poultry farming" has been used. In Section 3 (10) of United Provinces Tenancy Act, 1939 phrase "land means land which is let or held for growing of crops, or as grove-land or for pasturage. It includes land covered by water used for the purpose of growing sighara or other produce, but it does not include land for the time being occupied by buildings or appurtenant thereto other than buildings which are improvements." have been used. It includes land covered by water used for the purpose of growing sighara or other produce, but it does not include land for the time being occupied by buildings or appurtenant thereto other than buildings which are improvements." have been used. These phrases are parie materia with the phrases used in Bombay Rents, Hotel and Lodging House Rent Control Act, 1947 and Kerela Land Reforms Act, 1963 as such interpretations given by the Supreme Court in the aforesaid cases are fully applicable in this case also. Similar term used in U.P. Consolidation of Holdings Act, 1953 came for consideration before Supreme Court in Randhir Singh Vs. D.D.C. and others, AIR 1997 SC 2563 , in which also it was held that land appurtenant to building used for commercial purpose cannot be treated as land. 15. Overriding effect of Section 165 of U.P. Act No. 1 of 1951 will apply in the case, where bhumidhari holding was let out. It has no application over factory premises along with appurtenant land let out for commercial purposes as held by Supreme Court in N.R. Guzzar Vs. Telsibai, AIR 1997 SC 404 that provisions of Section 165 of U.P. Act No. 1 of 1951 will not be applicable, where building has been let out. 16. The argument that this judgment will affect hearing of Writ Petition No. 2597 (M/S) of 2005 has no substance as issue has been raised and argued by the petitioner as such it has been decided. In view of Explanation -I to Section 11, C.P.C., this judgment will be treated as a former judgment. Mere pendency of this issue in another writ petition does not affect jurisdiction of this court. 17. In view of aforesaid discussions, I do not find any eror apparent on the face of record to review the judgment dated 8-8-2014. The review petition has no merit and is dismissed.