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2015 DIGILAW 422 (ALL)

Ashok Kumar v. Phoolchand Singh

2015-02-27

ABHINAVA UPADHYA

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JUDGMENT Abhinava Upadhya,J. Heard Shri R.K. Dubey for the revisionist and Shri Sudhanshu Pandey for the respondent. 2. By means of this revision the order of Judge Small Causes dated 19.1.2015 has been challenged which was passed in S.C.C. Suit No. 28 of 2011. 3. It is claimed that the property in question which is in the shape of a shop was purchased by the plaintiff on 9.12.2009. The defendant/revisionist was required to pay rent from January 2010 and onwards, but when he failed to pay the rent, a notice dated 12.10.2011 alleged to be under Section 106 of the Transfer of Property Act, was served upon the tenant asking for arrears of rent and termination of tenancy. When neither the rent was paid nor possession of the premises was handed over, the plaintiff filed the aforesaid suit for eviction. 4. In the suit eight issues were framed after considering the written statement. Issue no. 4 was whether the suit is not maintainable under Section 106 of the Transfer of Property Act. The court has returned a finding that the plaintiff served a notice of demand of arrears of rent and termination of tenancy on 12th of October 2011, which was served on the tenant on 13th October 2011. This fact was proved by the plaintiff in his statement and nothing contrary could be found from his cross-examination. The statement of the plaintiff was further fortified by postal receipt regarding sending the notice by the registered post as well as copy of the notice was filed. On this ground the trial court has held that notice of Section 106 of the Transfer of Property Act was duly served upon the defendant. Nothing in the pleading or in the document before this Court has been brought forward which may contradict the finding arrived by the trial court on this ground. 5. Issue No. 5 was framed to the effect whether the suit is barred by U.P. Act No. 13. Issue No. 6 is whether the defendant is entitled to the benefit of Section 20(4) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (in short 'U.P. Act No. 13'). Issues No. 5 and 6 have been decided together. The defence of the defendant was that the eviction would be bad as he has complied with the provisions of Section 20(4) of the U.P. Act No. 13. Issues No. 5 and 6 have been decided together. The defence of the defendant was that the eviction would be bad as he has complied with the provisions of Section 20(4) of the U.P. Act No. 13. It is not disputed between the parties that the plaintiff is the owner of the property in question and the defendant is the tenant. The sole right over the property is that of its owner. The owner has a right to use the property in the manner that he likes. It can use it itself or it can rent it out. The owner is also not precluded in case of renting out the property, to evict the tenant in accordance with law. Section 106 of the Transfer of Property Act gives such right to the owner for showing his desire to terminate the tenancy. Since one month notice has held to be served properly and validly, the tenancy stands terminated at the end of period of 30 days. Under Section 106 of the aforesaid Act the tenant resisted the ejectment only on the ground that he has complied with the provisions of Section 20(4) of the U.P. Act No. 13 by depositing the entire rent on the first day of hearing. The trial court has gone on to hold that the tenant has not been able to prove that the U.P. Act No. 13 is applicable to seek any benefit of Section 20(4) of the said Act. 6. Shri R.K. Dubey, learned counsel appearing for the revisionist submits that the trial court has given a perverse conclusion to hold that the defendant/tenant has not been able to prove the application of the U.P. Act No. 13 and, therefore, notice under Section 106 of the Transfer of Property Act has been found to be sufficient and directed for eviction of the defendant from the premises in question. 7. Shri Dubey has relied upon a decision of the Hon'ble Supreme Court in the case of Ram Saroop Rai Vs. Lilavati reported in 1982 AIR (Supreme Court) 945 wherein the Hon'ble Supreme Court considering Section 106 of the Evidence Act has held that the factum of construction of building is specially in the knowledge of the owner and, therefore, where a question arises with regard to date of construction, the onus is upon the owner to prove the date of construction. 8. 8. In the present case nowhere in the pleading in the defence it has been stated that the U.P. Act No. 13 has any application to debar the landlord from evicting the tenant without following the procedure prescribed under the Act. 9. Shri Sudhanshu Pandey, learned counsel appearing for the respondent on the other hand submits that under Section 102 of the Evidence Act the burden lies upon the person who craves any benefit to prove that he is entitled for such benefit. The defendant in the suit resisted his eviction on the ground that he has complied with the provisions of Section 20(4) of the U.P. Act No. 13, but it failed to prove whether the said Act was applicable or not nor produced any material before the court or in his pleading to claim the benefit of Section 20(4) of the said Act. 10. I have considered the submissions of Shri R.K. Dubey for the revisionist and Shri Sudhanshu Pandey for the respondent. 11. The suit was filed for eviction upon non-compliance by the defendant. The notice under Section 106 of the Transfer of Property Act has been held to have been served on 13.10.2011 and after expiry of 30 days the tenancy of the defendant/revisionist stood terminated. 12. In the suit filed for eviction the plaintiff has claimed benefit of Section 106 of the Transfer of Property Act whereas the defendant has taken benefit of Section 20(4) of the U.P. Act No. 13 to resist his eviction from the premises owned by the plaintiff. As such, it was incumbent upon the tenant to prove the application of Section 20(4) of the U.P. Act No. 13, which he failed to do and, therefore, the conclusion arrived at by the court below cannot be faulted. 13. There is no merit in the revision and it is, accordingly, dismissed.