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2019 DIGILAW 2079 (ALL)

Munnu Yadav v. Ram Kumar Yadav

2019-09-09

SURYA PRAKASH KESARWANI

body2019
JUDGMENT : SURYA PRAKASH KESARWANI, J. 1. Heard Sri Atul Dayal, learned Senior Advocate assisted by Sri Ayush Khanna, learned counsel for the defendant-revisionist and Sri Manish Tandon, learned counsel for the plaintiff-respondent. Facts:- 2. Briefly admitted facts of the present case are that the plaintiff-respondent is the owner and landlord of House No.76/184, Sabji Mandi, Kanpur Nagar, which is bounded by east, west and south side by public lane and on the northern side by House No.76/183. An open portion of the said house measuring 9 feet x 9 feet with four pucca tanks (nad) for feeding of cattles and enclosed by boundary wall was let out by the landlord-respondent to the tenant-revisionist on a monthly rent of Rs.1000/-. The tenant-revisionist defaulted in payment of rent. Therefore, the landlord-respondent issued a notice dated 18.06.2016 by registered post, whereby he determined the tenancy and demanded arrears of rent from the tenant-revisionist. The notice was served and yet neither the rent was paid nor the tenanted portion was vacated by the tenant-revisionist. Therefore, the landlord-respondent filed SCC Suit No.67 of 2016 (Ram Kumar Yadav and another Vs. Munnu Yadav) which was decreed by the Additional District Judge/Judge Small Cause, Court No.13, Kanpur Nagar, by the impugned judgment and decree dated 27.03.2019. In the aforesaid SCC Suit, six issues were framed. The issue no.1 regarding landlord-tenant relationship was decided by the court below holding that the respondent is the landlord of the disputed accommodation of which the revisionist is the tenant. The issue no. 2 was framed on the point as to whether provisions of U.P. Act 13 of 1972 are applicable? The averments made by the landlord that the provisions of U.P. Act 13 of 1972 are applicable was not specifically denied by the tenant-revisionist. Therefore, it was held that provisions of U.P. Act 13 of 1972 are applicable. The issue No.3 was framed on the point of default in payment of rent. The court below held that the tenant-revisionist defaulted in payment of rent. The issue no.4 was framed as to whether the tenant-revisionist is entitled for the benefit of the provisions of Section 20(4) of U.P. Act 13 of 1972 ? The court below held that since arrears of rent was not paid by the tenant-revisionist on the first date of hearing, therefore, the benefit of Section 20(4) of the Act is not available to the tenant-revisionist. The court below held that since arrears of rent was not paid by the tenant-revisionist on the first date of hearing, therefore, the benefit of Section 20(4) of the Act is not available to the tenant-revisionist. The issue no.5 was framed as to whether the notice determining the tenancy was validly given. The court below recorded the finding that the tenancy was determined by a valid notice. The issue no.6 was framed as to grant of relief. On the basis of findings of fact recorded on issue nos. 1 to 5 the court below found that the SCC Suit deserves to be decreed. 3. Aggrieved with the impugned judgment and decree dated 27.03.2019, the tenant-revisionist has filed the present revision under Section 25 of the Provincial Small Cause Courts Act,1887 (hereinafter referred to as "the Act, 1887). Submission on behalf of tenant-revisionist 4. Sri Atul Dayal, learned counsel for the tenant-revisionist submits as under:- (i) The impugned judgment dated 27.03.2019, passed by the Additional District Judge/Judge Small Cause Court No.13, Kanpur Nagar, is without jurisdiction inasmuch as the portion let out by the landlord-respondent to the tenant-revisionist is an open accommodation which is not a building within the meaning of Section 3(i) of U.P. Act 13 of 1972 and, therefore, the Judge Small Cause Court had no jurisdiction under Section 15 of the Act, 1887, to take cognizance of such a suit for eviction of tenant of an open land which stand ousted by Clause 4 of the 2nd Schedule to Section 15 of the Act, 1887. Reliance is placed upon judgments of this Court in Krishna Bhagwan Vs. District Judge, Bareilly and others, (1999) 2 ARC 248 (Para Nos.6 to 11), Raj Kishore Tandon and others Vs. District Judge, Etawah and others, (2006) 1 ARC 880 (Para 4) and the judgment of Hon'ble Supreme Court in Surya Kumar Govindjee Vs. Krishnammal and others, (1990) 4 SCC 343 (Para 17). (ii) Since, the disputed property is not a building, therefore, under Section 15 of the Provincial Small Cause Courts Act, 1887, the Judge Small Cause Court, lacked inherent jurisdiction to entertain the S.C.C. Suit No.67 of 2016. When a court lacks inherent jurisdiction, Section 21 C.P.C. shall have no application. Reliance is placed upon judgments of Hon'ble Supreme Court in Harshad Chiman Lal Modi Vs. DLF Universal Ltd. and Another, (2005) 7 SCC 791 (Para Nos. When a court lacks inherent jurisdiction, Section 21 C.P.C. shall have no application. Reliance is placed upon judgments of Hon'ble Supreme Court in Harshad Chiman Lal Modi Vs. DLF Universal Ltd. and Another, (2005) 7 SCC 791 (Para Nos. 30 to 33) and in Hasham Abbas Sayyad Vs. Usman Abbas Sayyad and others, (2007) 2 SCC 355 (Paragraph Nos. 22 and 23). Submission on behalf of landlord-respondent 5. Sri Manish Tandon, learned counsel for the landlord-respondents submits as under:- (i) The accommodation let out by the landlord-respondent to the tenant-revisionist is part and parcel of House No.76/184, Sabji Mandi, Kanpur Nagar, which is a building within the meaning of Section 3(i) of U.P. Act 13 of 1972. (ii) Without prejudice to the above, the tenant-revisionist has not taken any objection as has now been taken in the submissions aforenoted, either in his written statement or at any stage before the court below. Therefore, such an objection can not be allowed to be taken before this Court in revision under Section 25 of the Act, 1887. Reliance is placed upon the judgment of Hon'ble Supreme Court in Om Prakash Agarawal Vs. Vishan Dayal and another, (2018) 3 ARC 652 (Paragraph Nos. 56, 59, 61 and 62) and a judgment of this Court in Madhyamik Shiksha Parishad Vs. IInd Additional District Judge, Allahabad, (2010) 2 ARC 396 (Paragraph Nos. 10,11 and 12). 6. The learned counsel for the tenant-revisionist has not made any other submissions before me except those aforenoted. Discussion and findings 7. The submission made by learned counsels for the parties give rise to the following questions for determination in this revision:- (a) Whether a small roofless portion of House No.76/184, Sabji Mandi, Kanpur Nagar, with four pucca tanks for feeding cattle and surrounded by boundary wall let out by the landlord-respondent to the tenant-revisionist, is a building within the meaning of Section 3(i) of U.P. Act 13 of 1972 ? (b) Whether the objection on the point of jurisdiction raised by the tenant-revisionist for the first time in the present revision can not be allowed to be raised in view of the provisions of Section 21 of Civil Procedure Code ? Question No.(a) 8. (b) Whether the objection on the point of jurisdiction raised by the tenant-revisionist for the first time in the present revision can not be allowed to be raised in view of the provisions of Section 21 of Civil Procedure Code ? Question No.(a) 8. The word "building" has been defined in Section 3(i) of U.P. Act 13 of 1972, as under:- "In this Act, unless the context otherwise requires- (i) "Building", means a residential or non-residential roofed structure and includes- (i) any land (including any garden), garages and out-houses, appurtenant to such building ; (ii) any furniture supplied by the landlord for use in such building ; (iii) any fittings and fixtures affixed to such building for the more beneficial enjoyment thereof ;" 9. Section 15 of the Act, 1887, provides for jurisdiction of Courts of Small Causes. Second Schedule to Section 15 (1) of the Act 1887, provides for suits excepted for the cognizance of a Court of Small Causes. Clause 4 of the 2nd Schedule to Section 15(1) of the Act, 1887, is relevant for the purposes of present case which is reproduced below:- "Section 15(4)- a suit for the possession of immovable property or for the recovery of an interest in such property, but not including a suit by a lessor for the eviction of a lessee from a building after the determination of his lease and for the recovery from him of compensation for the use and occupation of that building after such determination of lease. Explanation- For the purposes of this Article, the expression 'building' means a residential or non-residential roofed structure, and includes any land (including any garden), garages, out-houses, appurtenant to such building, and also includes any fittings and fixtures affixed to the building for the more beneficial enjoyment thereof." 10. In the case of Harish Chandra and another Vs. Mohd. Ismail and others, (1990) 4 SCC 493 (para 4), Hon'ble Supreme Court observed that open land would not be a building within the meaning of expression "building" under Section 3(i) of the U.P. Act 1972. In Sube Deen and others Vs. Satyawati Devi and another, (1996) 28 AllLR 415 , a learned Single Judge of this Court held that "Adda" land used for sale of animals would not be a building within the meaning of Section 3(i) of U.P. Act 13 of 1972. In Ashok Kapil Vs. In Sube Deen and others Vs. Satyawati Devi and another, (1996) 28 AllLR 415 , a learned Single Judge of this Court held that "Adda" land used for sale of animals would not be a building within the meaning of Section 3(i) of U.P. Act 13 of 1972. In Ashok Kapil Vs. Sana Ullah (Dead) and others, (1996) 6 SCC 342 (paras 6,10 & 11) Hon'ble Supreme Court held that a structure without roof cannot fall within the ambit of the definition of building under Section 3(i) of U.P. Act 13 of 1972, but where a structure remained a roofed building when it became vacant and the roof was later dismantled by the owner, so on the date of allotment order it remained roofless, would constitute a building. In paras 10 & 11 of the judgment in Ashok Kapil (supra), Hon'ble Supreme Court held as under:- "10. Jurisdiction of the District Magistrate, therefore, is in respect of a building which is either vacant or which "has fallen vacant" or is about to fall vacant. If a structure was a building as per the definition at the time when it fell vacant, the District Magistrate, no doubt, gets jurisdiction to initiate proceedings for passing allotment order. But would he lose jurisdiction merely because the structure became roofless subsequently? No doubt, if we go by the definition in Section 3(i) stricto sensu, the structure without roof will cease to be building. But a roofless structure can still continue to be building outside the fixed borders of the definition. It is now necessary to notice that Section 3 of the Act, which contains all the definition clauses, prefaces with the words "unless the context otherwise requires". Thus the legislature which fixed contours for different expressions through the definition clauses has also provided sufficient play at the joints for contextual adaptations. In other words, contextual variations are not impermissible under the Act if such variations are necessary to achieve the object of the enactment. Outside the definition in Section 3 of the Act the word 'building' need not necessarily be a roofed structure for even roofless structures are, sometimes, used as buildings in certain circumstances. 11. Stroud's Judicial Dictionary (Vol.I of the 5th edn.) states that "what is a building must always be a question of degree and circumstances". Quoting from Victoria City Corpn. Outside the definition in Section 3 of the Act the word 'building' need not necessarily be a roofed structure for even roofless structures are, sometimes, used as buildings in certain circumstances. 11. Stroud's Judicial Dictionary (Vol.I of the 5th edn.) states that "what is a building must always be a question of degree and circumstances". Quoting from Victoria City Corpn. V. Bishop of Vancouver Island, (1921) 2 AC 384, (AC at p. 390), the celebrated lexicographer commented that " the ordinary and natural meaning of the word building includes the fabric and the ground on which it stands". In black's Law dictionary (5th Edn) the meaning of the building is given as "A structure or edifice enclosing a space within its walls, and usually, but not necessarily, covered with a roof" (emphasis supplied) The said description is recognition of the fact that roof is not necessary and indispensable adjunct for a building because there can be roofless buildings. So a building, even after losing the roof, can continue to be a building in its general meaning. Taking recourse to such general meaning in the present context would help to prevent a mischief." (Emphasis supplied by me) 11. In Krishna Bhagwan's case (supra) Hon'ble Single judge held that a suit for eviction of a tenant of an open land is beyond the jurisdiction of Small Cause Courts. In the said case an open land was let out. In Raj Kishore Tandon (supra), Hon'ble Single Judge explained the words "appurtenant" as used in Section 3(i) of U.P. Act 13 of 1972, and held as under:- "3. Under Section 3(i) of the Act building is defined to mean a residential or non-residential roofed structure and includes- (i) any land (including any garden) garages and out houses, appurtenant to such building; 4. Land appurtenant means so much land, which is necessary for proper enjoyment of the constructed portion. If in any land of several acres a small accommodation is constructed, the said constructed accommodation cannot be allotted alongwith the entire land of several acres. 6. According to the allegations in the writ petition the portion, which has been allotted, contains the construction over an area of about 200 square yards and the open land, which is shown to have been allotted and mentioned in the map, annexed alongwith Form B is about 20 bighas. 6. According to the allegations in the writ petition the portion, which has been allotted, contains the construction over an area of about 200 square yards and the open land, which is shown to have been allotted and mentioned in the map, annexed alongwith Form B is about 20 bighas. Inspector had reported that servant quarters were in possession of other persons. Even those servant quarters have also been included in Form B. Inspector further found that Chaukidar employed by landlord was in possession of the portion in dispute. 7. In my opinion firstly the land, which has been allotted could never be allotted as the entire land can not be said to be the land appurtenant. It was virtually allotment of open land, which is not permissible. Secondly the allotment order is utterly illegal as no notice to the landlord was given after declaration of vacancy and before allotment as required by Rule 9 (3) of the Rules framed under the Act. Vacancy declaration and allotment was made by one and the same order. Rule 9(3) of the Rules framed under the Act is mandatory. The purpose of the said rule is to provide opportunity to the landlord to file release application if he so desires. The allotment order was therefore utterly illegal (vide R.L.Poddar Vs. A.D.J, (2003) 2 ARC 629, C.K.Nagarkar Vs. A.D.J, (2004) 2 ARC 349 and Kusum Lata Yadav Vs. A.D.J, (2004) 2 ARC 789)." (Emphasis supplied by me) 12. In Govardhan Goyal and others Vs. Rishi Raj Singhal, (2013) 96 AllLR 806 (Paras 23 to 28), a Bench of this Court held as under:- "23. It is settled in law that the jurisdiction of a court has to be determined on the basis of the plaint allegations alone and on the defence taken in written statement. In Abdulla Bin Ali Vs. Galappa, (1985) AIR SC 577 it has been clearly laid down that allegations in the plaint alone are relevant for deciding about the jurisdiction of the court. Thus, in view of the plaint allegations, the suit is for eviction from a building and for damages for its use and occupation. Accordingly, it is not excluded from the jurisdiction of the Small Causes Court. 24. Thus, in view of the plaint allegations, the suit is for eviction from a building and for damages for its use and occupation. Accordingly, it is not excluded from the jurisdiction of the Small Causes Court. 24. It is but natural that when the landlord allowed a building to be put up on the open plot of land the character of the premises let out would automatically change with the raising of the constructions over it and the plot of land would not remain an open piece of land. 25. A learned Single Judge of this Court in M/s. Kedar Nath Baij Nath and others Vs. Shri Ram Chandraji, Shri Jankiji, Shri Lakshmanji, Virajman Mandir and others,1991 1 ARC 420 has clearly laid down that a suit for eviction of a tenant in respect of the property where initially land alone was leased out but over which a building was constructed with the permission of the landlord, would be cognizable by a court of small causes. 26. In Sardar Gurcharan Singh Vs. Ist Additional District Judge, Kanpur and others, (1994) 1 ARC 546 His Lordship of this Court held that where a suit is filed treating the property as a building seeking eviction of the tenant, the suit would lie before the Court of Small Causes. 27. In simple terms, the nature of the property from which the eviction is claimed in the suit is material and not the nature of the property that may have been let out for the purposes of determining the jurisdiction of the Small Causes Court. 28. In view of the above, the revisionists can not escape from the jurisdiction of the Small Causes Court as the suit is essentially one for their eviction from the 'building' and not simplicitor from the land leased out." (Emphasis supplied by me) 13. In Ichchapur Industrial Co-operative Society Ltd. Vs. the Competent Authority, Oil & Natural Gas Commission & Anr., (1997) 2 SCC 42 (para 27), Hon'ble Supreme Court observed that where the definition clause is preceded by the words "unless the context otherwise requires", the definition has to be interpreted in the light of the context in which it is used. The aforesaid phrase has been similarly interpreted by Hon'ble Supreme Court in cases arising from rent matters. In K.V. Muttu Vs. Angamuthu Ammal, (1997) 2 SCC 53 (paras 10 to 13), Damadi Lal Vs. The aforesaid phrase has been similarly interpreted by Hon'ble Supreme Court in cases arising from rent matters. In K.V. Muttu Vs. Angamuthu Ammal, (1997) 2 SCC 53 (paras 10 to 13), Damadi Lal Vs. Parashram, (1976) 4 SCC 855 (para 12) and Ashok Kapil (supra). 14. The word "means" and "includes" used in Section 3(i) of the Act implies that the definition is exhaustive with respect to "residential or non residential roofed structure" unless the context otherwise requires but it is illustrative with respect to the inclusion part given in sub clauses i, ii and iii. The phrase "unless the context otherwise requires" indicates that while construing, interpreting and applying the definition clause, the Court has to keep in view the legislative mandate and intent and to consider whether the context requires otherwise. Where the definition is preceded with the phrase "unless the context otherwise requires" the connotation is that normally the definition as given in Section should be applied and given effect to but it may be departed from if the context otherwise requires. 15. From bare perusal of the definition of "building" in Section 3(i) of the U.P. Act 13 of 1972, it is clear that unless the context otherwise requires, "building" means a residential or non residential roofed structure and includes any land (including any garden), garages and out-houses, appurtenant to such building; any furniture supplied by the landlord for use in such building and any fittings and fixtures affixed to such building for the more beneficial enjoyment thereof. As held by Hon'ble Supreme Court in Ashok Kapil (supra) a structure or edifice enclosing a space within its walls, and usually, but not necessarily, covered with a roof is a building. Roof is not necessary and indispensable adjunct for a building because there can be roofless buildings. The "Building" as defined in Section 3 (i) is a residential or non-residential roofed structure and includes any land (including any garden), garages and out-houses, appurtenant to such building. Therefore, an open land including any garden, garages and out-houses, appurtenant to a roofed structure for its beneficial engagement shall be a building within the meaning of Section 3(i) of U.P. Act 13 of 1972. 16. In the present set of facts the small accommodation let out by the landlord-respondent to the defendant-revisionist is an integral part of the building bearing municipal No.76/184, Sabji Mandi, Kanpur Nagar. 16. In the present set of facts the small accommodation let out by the landlord-respondent to the defendant-revisionist is an integral part of the building bearing municipal No.76/184, Sabji Mandi, Kanpur Nagar. Therefore, the disputed accommodation, even though is roofless; is part of the house in question. Consequently, the disputed accommodation let out by landlord-respondent to the tenant-revisionist is "building" as defined under Section 3(i) of the U.P. Act 13 of 1972. Question no. (a) is answered accordingly. 17. In view of my answer to the question (a) there is no need to decide question (b) yet it would be suffice to observe that admittedly the competence of the court below to decide the SCC Suit in question was not raised by the tenant-revisionist before the court below. Therefore, in view of the provisions of Section 21 of the Civil Procedure Code and the law settled by Hon'ble Supreme Court in the case of Om Prakash Agarawal (supra), such an objection can not be raised at this stage in Revision under Section 25 of the Act, 1887, inasmuch as such an objection could have been taken by the tenant-revisionist in the Court of first instance at the earliest possible opportunity. 18. For all the reasons aforestated, it is held that the disputed accommodation is a building within the meaning of Section 3(i) of the U.P. Act 13 of 1972 which was let out by the landlord-respondent to the tenant-revisionist and the tenant-revisionist defaulted in payment of rent resulting in determination of tenancy. Therefore, the SCC Suit for eviction has been lawfully decreed by the impugned judgment. The findings recorded by the court below on the issues before it are the findings of fact which do not suffer from any perversity. Therefore, these findings of fact can not be interfered with. 19. For all the reasons aforestated, I do not find any merit in this revision. Therefore, the revision is dismissed. However, there shall be no order as to costs.