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2021 DIGILAW 762 (UTT)

LEELA JOSHI v. DISTRICT JUDGE, PITHORAGARH

2021-12-22

S.K.MISHRA

body2021
JUDGMENT 1. Heard Mr. Mr. Anil Kumar Joshi, the learned counsel for the petitioners, Mr. Suyash Pant, the learned Standing Counsel for the State, and Mr. Ravi Babulkar, the learned counsel for respondent no. 3. 2. In this writ petition, filed under Article 227 of the Constitution of India, the petitioners being defendants in SCC Suit No. 1 of 1992 of the Court of Judge, Small Causes (Munsif), Pithoragarh, has assailed the order passed by the Judge, SCC on 14.06.2005, giving directions to the petitioners to vacate the property and hand it over to respondent no. 3 which was partially modified by the revisional court. 3. The facts of the case may be summarized as follows: Plaintiff/respondent no. 3 filed a suit under the Small Causes Court Act before the Judge, SCC, Pithoragarh, registered as SCC No. 1 of 1992. He sought for decree of eviction, arrears of rent and damages mainly on the ground that late Narendra Singh Bisht, Moti Devi and Chanchal Singh Bisht are the members of Hindu Joint Family and plaintiff/respondent no. 3 is managing the property of the family as manager in charge. The plaintiff further averred that occupier of the property, namely, Lashkaria Bhawan, and the petitioners are the tenant of the property and the defendants have not paid the rent since 01.04.1985, and, denied the ownership of the plaintiff over the property in question. It is further stated that the defendants has also encroached some vacant area by constructing one room in violation of the terms of tenancy and has also constructed kitchen and cow shed on land passage which is common to all tenants. The plaintiff further averred that the defendants constructed two rooms by occupying two washrooms, front yard which was in the common use of six tenants. The further case of the plaintiff is that defendant with collusion of the legal administrator got the property in his name by auction belonging to the passage, front yard and washroom. A notice was sent on 21.06.1991 through registered post, acknowledgment due, to the defendants but notices were returned. Hence, the plaintiff prayed for recovery of damages, possession of the disputed property as per Section 20 (2) clause (A) of the U.P. Urban building (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as Rent Control Act for the brevity). Hence, the plaintiff prayed for recovery of damages, possession of the disputed property as per Section 20 (2) clause (A) of the U.P. Urban building (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as Rent Control Act for the brevity). The petitioners, being the defendants, filed their written statements denying in general the averments made by the plaintiffs. Additionally, they plead that the disputed house was allotted by the Rent Control Officer, Pithoragarh in the year 1965 and the defendants has paid the rent as fixed in the allotment order. The plaintiffs, since 1986-87 refused to accept the rent and money order of the rent was also returned, therefore, the rent was deposited in rent control case no. 12 of 1987 from the year 1986 to 1992. It is further contended that land adjacent to the disputed land was purchased by the defendants measuring 900 square feet in an auction conducted by the Nagar Palika Parishad, Pithoragar. On such pleas, the learned Judge, Presiding the Small Causes Courts framed the following questions as points of determination:- 1- D;k oknh ,oa izfroknh ds eè; Hkou ,oa fdjk;nkjh ds lEcU/k gSa\ 2- D;k oknh fo"k;xr laifRr dk yS.MykSMZ gS\ 3- D;k izfroknh us oknh dks dksbZ fdjk;k vnk ugh fd;k\ 4- vuqrks"k\ Two witnesses including plaintiff were examined on behalf of the plaintiff and several documents were relied on. One of the defendants examined himself as DW1 on behalf of the defendant. The learned Trial Judge, vide judgment and order dated 14.06.2005 decreed the suit, granted decree of eviction and also directed the defendants to pay rent @ 12.50 per month, from the date of the suit. Being aggrieved of the aforesaid judgment, the legal heirs of the defendants filed revision in the court of District Judge, Pithoragarh, which was registered as Revision No. 4 of 2005. The revision was partly allowed vide judgment and order dated 22.12.2010. The revisional court had set aside the judgment of the trial court to the extent of Khet No. 918 and construction over it and confirmed the decree over other properties. Being aggrieved by such judgment, the present writ petition has been filed in this Court. 4. A careful examination of the judgment impugned reveals that for determining the point of determination no. Being aggrieved by such judgment, the present writ petition has been filed in this Court. 4. A careful examination of the judgment impugned reveals that for determining the point of determination no. 1 i.e. whether there is a relationship of landlord and tenant between the plaintiff and defendants, the trial Judge relied upon the sale deed executed by one Laxman in favour of the plaintiff's father in the year 1946. The trial Judge, further recorded since the disputed property was purchased by the plaintiff's father, hence, the plaintiff and his brothers are the owner and the landlord of the property. The point of determination no. 2 was decided in favour of the plaintiff holding that the plaintiff is the landlord of the property. Point of determination no. 3 was decided in favour of the plaintiff and, the trial Judge has come to the conclusion that defendants have not paid the rent after notice and has not deposited any rent in the suit and the rent deposited under Section 30 of the Rent Control Act cannot be treated as deposited in the original suit. While determining point of determination no. 5, the learned Trial Judge has come to the conclusion that there has been service of notice on the basis of the endorsement made by the postman and that the notice does contain the assertion regarding determination and termination of the tenancy. The revisional court further came to the conclusion that there has been unauthorized alteration and modification in the property in question by the tenant. Such a finding has been given in addition of the findings given by the Trial Judge, SCC. The revisional court further held that the portion of the land where also defendants have created some permanent structure was purchased by him in auction held by Nagar Palika but as far as rest of the property is concerned, the order of eviction was upheld by the revisional court. 5. In assailing the concurrent findings with respect to the premise in question, the learned counsel for the petitioner would argue that the plaint or the suit cannot be maintained by Ravindra Singh Bisht, as it is reflected in the allotment order that Devraj Singh Bist is the landlord. He would further argue that the suit is bad for non joinder of the necessary parties as co-sharer of Ravindra Singh Bist are not made party to the proceedings . He would further argue that the suit is bad for non joinder of the necessary parties as co-sharer of Ravindra Singh Bist are not made party to the proceedings . Developing the question of notice under Section 106 of the Transfer of Property Act 1982,(hereinafter referred to as the T.P. Act for brevity) the learned counsel would further argue that the defendants have not received the notice, and, therefore, there was no valid compliance of Section 106 of the T.P. Act, therefore, suit should have failed. The learned counsel further submits that notice itself do not reveal that there is determination of the tenancy, and therefore, the writ should be allowed. He would further argue that this is not a case of tenancy as the land has been allotted to the defendants by the Rent Control Officer, Pithoragarh, in exercising of jurisdiction under Section 16 of the U.P (Temporary) Control of Rent and Eviction Act, 1947, hence, there is no relationship of landlord and tenant between the plaintiff and the defendants. Finally, the learned counsel for the petitioner relying upon the second schedule of The Provincial Small Cause Courts Act, 1887, (hereinafter referred to as PSCC Act) referring to the U.P. Amendment would argue that the suit for possession, immovable property is barred and the Small Cause Courts do not have jurisdiction to decide the suit and it should have been filed before the appropriate authority under the revenue laws. 6. Mr. Ravi Babulkar, the learned counsel for respondent no. 3 and plaintiff before the trial court would argue that the learned Trial Judge has rightly come to the conclusion that the suit is maintainable by Ravindra Singh Bist and it is not bad on principle of non joinder of the necessary parties by applying doctrine of agency. He would argue that the notices under Section 106 of the T.P. Act, were sent to the defendants through registered post. On three occasions the postman attempted to deliver it, but they refused to accept the notice, hence, the trial Judge has come to the conclusion that notices were sufficiently served upon the defendants. As far as the determination of tenancy is concerned, the original documents were placed wherein a clear mention has been made regarding asking the defendants to vacate the premise, in case of failure of payment of rent .That being the case, the learned counsel for respondent no. As far as the determination of tenancy is concerned, the original documents were placed wherein a clear mention has been made regarding asking the defendants to vacate the premise, in case of failure of payment of rent .That being the case, the learned counsel for respondent no. 3 would argue that there is no merit in the writ application. As far as jurisdiction is concerned, the learned counsel took the Court to the provisions of Amendment of U.P. to the 7th schedule of the PSCC Act, and would argue that a suit for tenancy is very much maintainable in the Small Cause Courts where the plaint was filed. 7. Having heard the learned counsel for the parties, this Court has perused the judgments, documents available on record and proceeded to give its findings as follows:- It is not disputed at this stage that property was purchased by Chanchal Singh Bist from one Laxman Singh on 17.09.1946. It is also not disputed that Devraj Singh Bist and Ravindra Singh Bist are brothers, and therefore, this Court comes to the finding that the property involved in this case is a Joint Hindu Family and ancestral property of the plaintiff/ respondent no. 3. It is settled principle of law that in case of Joint Hindu Family property, the possession of one co-sharer inures to the benefit of the other co-sharer and all the co-sharers have right over the property in question. Hence, by resorting to the doctrine of agency this Court comes to the conclusion that respondent no. 3, Ravindra Singh Bist can maintain an application on proceeding for eviction of the defendants from the property which belongs to a Joint Hindu Family and it is also not bad by non joinder of necessary parties. On this issue, this Court relies upon the case cited by Mr. Ravi Babulkar, the learned counsel for the respondent i.e. Dhannalal vs. Kalawatibai and others, (2002) 6SCC 16 wherein at paragraph 16, the Hon'ble Supreme Court has dealt about this issue and has held as follows “16. It is well settled by at least three decisions of this Court, namely, Sri Ram Pasricha Vs. Jagannath and Ors. (1976) 4 SCC 184 , Kanta Goel Vs. B.P. Pathan and Ors.- (1977) 2 SCC 814 and Pal Singh Vs. Sunder Singh (dead) by Lrs. and Ors. It is well settled by at least three decisions of this Court, namely, Sri Ram Pasricha Vs. Jagannath and Ors. (1976) 4 SCC 184 , Kanta Goel Vs. B.P. Pathan and Ors.- (1977) 2 SCC 814 and Pal Singh Vs. Sunder Singh (dead) by Lrs. and Ors. (1989) 1 SCC 444 that one of the co-owners can alone and in his own right file a suit for ejectment of tenant and it is no defence open to tenant to question the maintainability of the suit on the ground that other co-owners were not joined as parties to the suit. When the property forming subject matter of eviction proceedings is owned by several owners, every co- owner owns every part and every bit of the joint property along with others and it cannot be said that he is only a part owner or a fractional owner of the property so long as the property has not been partitioned. He can alone maintain a suit for eviction of tenant without joining the other co- owners if such other co-owners do not object. In Shri Ram Pasricha's case (supra) reliance was placed by the tenant on the English rule that if two or more landlords institute a suit for possession on the ground that a dwelling house is required for occupation of one of them as a residence the suit would fail; the requirement must be of all the landlords. The Court noted that the English rule was not followed by the High Courts of Calcutta and Gujarat which High Courts have respectfully dissented from the rule of English law. This Court held that a decree could be passed in favour of the plaintiff though he was not the absolute and full owner of the premises because he required the premises for his own use and also satisfied the requirement of being “if he is the owner", the expression as employed by Section 13(1)(f) of W.B. Premises Tenancy Act, 1956. Thus, this court is of the view that Ravindra Singh Bist can maintain the proceedings for eviction of the tenants on valid grounds and these proceedings are not bad for non joinder of necessary parties. 8. Thus, this court is of the view that Ravindra Singh Bist can maintain the proceedings for eviction of the tenants on valid grounds and these proceedings are not bad for non joinder of necessary parties. 8. As far as issue of non issuance of notice under Section 106 of the T.P. Act is concerned, the trial court has given categorical findings based on document filed before him that three attempts were made by the Postal Department to serve the notice on the defendants through registered post. There were attempts to deliver the same to the defendants but they refused to accept the same. Hence, this Court is of the opinion that this is not a valid argument. Such opinion of the Court is further buttressed by the fact that the defendants have not raised plea in their written statements regarding non receipt of notice under Section 106 of the T.P. Act by them and the findings that they refused to accept the notice served to them through registered post cannot be set aside as it is supported by a valid, admissible and relevant documents. 9. As far as determination of tenancy is concerned, this Court has carefully examined the copy of a notice which has been filed before the learned Trial Judge and it is apparent that there is specific reference about the non acceptance of the tenancy. It is appropriate to take note of the exact words used at paragraph 4 which reads as follows:- ßvkidks bl uksfVl ds tfj;s /kkjk 1 [k.M th 2 /kkjk 106 lEifRr varj.k vfèkfu;e 1882 ds varZxr ;g lwpuk nh tkrh gS fd gesa viuh mDr Hkwfe@Hkou esa fdjk;snkj j[kuk Lohdkj ugha vr% vki bl uksfVl dh izkfIr ds rhl fnu ds vUnj ij gekjs Hkwfe Hkou [kkyh dj nsa NksM ns vkSj dCtk edkunkj mijksDr dks okil dj nsaA vkns'k ds rhl fnu ds&ij Hkwfe Hkou mijksDr dks [kkyh dj dCtk edkunkj dk okil dj nsA ;fn vkius bl uksfVl ikus ds rhl fnu ds vUnj Hkwfe Hkou mijksDr dks [kkyh dk dCtk edkunkj dks okil ugh fd;k rks vkids&csn[kyh dh ukfy'k dh tk;sxh vkSj vki gh [kpsZ ds nsunkj gksaxs bl uksfVl ikus ds ,d ekg ds vUnj mDr fdjk;k Hkh gekjs ikl tek dj nsaA vr% lwfpr gkssAÞ The averment made in the said notice reveals the determination or termination of tenancy. So it cannot be said that there is no averment of determination of tenancy. Hence, this contention of the learned counsel for the petitioner is also not acceptable. 10. As far as the contention of the learned counsel for the petitioner that there is no relationship of landlord and tenant between the plaintiff and respondent no. 3 is concerned, this Court took into consideration the fact that the Rent Control Officer, Pithoragarh, allotted the property in favour of the petitioner wherein he described that Devraj Singh Bist, brother of respondent no. 3/ as landlord of the property which means that the Rent Control Officer recognized this fact that Devraj Singh Bist was the owner of the property and defendants were inducted as tenants and not as the absolute owner of the property. Moreover, the Rent Control Officer did not allot the property treating the property to be his own. In fact he recognized the ownership of the property in respect of Devendra Singh Bist and also come to the conclusion that it should be allotted in favour of the defendants. Hence, it cannot be said that there is no relationship of tenant and landlord between respondent no 3 and the defendants. 11. Moreover, sub-section 8 of Section 16 of the Rent Control Act provides as follows:- 1. xxxx 2. xxxx 3. xxxx 4. xxxx 5. xxxx 6. xxxx 7. xxxx 8. The allotee shall, [subject to the provisions of sub-sections (5) and (9), and Section 18], be deemed to become tenant of the building from the date of allotment or, where he is unable to obtain possession by reason of a stay order or of any other person having occupied or continue to occupy the building from the date on which he obtains possession. 9. xxxx 10. xxxx 12. It is apparent from the record that even when an allotment has been made or release of vacant building has been made by the District Magistrate or the Rent Control Officer under provisions of Section 16 by virtue of sub-section 8 of the Rent Control Act, the allotee shall be deemed to be a tenant of building under the original owner. So it cannot be said that if allotment made under Section 16 of the Rent Control Act or under provision of that Act, he cannot be termed as tenant under the landlord to whom the property belongs. 13. So it cannot be said that if allotment made under Section 16 of the Rent Control Act or under provision of that Act, he cannot be termed as tenant under the landlord to whom the property belongs. 13. In that view of the matter, this Court is of the opinion that there is relationship of landlord and tenant between respondent no. 3 and defendants/petitioners. 14. The learned counsel for the petitioners made a feeble attempt by submitting that a tenancy agreement is not a lease and hence, the Small Cause Courts shall not have any jurisdiction of such cases. It is not disputed that tenancy has not been defined either in the Transfer of Property Act or the Rent Control Act. Hence, the provision of section 105 of the Transfer of Property Act has to be taken into consideration especially when it is well established before taking of matter of eviction and a notice under Section 106 of the T.P. Act is required for determination of the tenancy. Section 105 reads as follows:- 105. Lease defined.—A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. Lessor, lessee, premium and rent defined.—The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent. 15. It is apparent from the record that any lease of immovable property made for certain time, or in perpetuity or in consideration of a price etc., is considered to be a lease. The second schedule of the PSCC has been amended with respect to its applicability to State of Uttar Pradesh as well as applicable to the State of Uttarakhand. It is appropriate to take note of relevant part of the schedule:-….. 1. xxxx 2. xxxx 3. xxxx 4. The second schedule of the PSCC has been amended with respect to its applicability to State of Uttar Pradesh as well as applicable to the State of Uttarakhand. It is appropriate to take note of relevant part of the schedule:-….. 1. xxxx 2. xxxx 3. xxxx 4. xxxx State Amendments Xxxxx Xxxxx Uttar Pradesh- In Second Schedule, for clause (4), substitute the following clause, namely:- “(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 lesee from a building after the determination of his lease, and for the recovery from his of compensation for the use and occupation of that building after such determination of lease. (underlined for emphasis) Explanation.- For the purpose of this Article, the expression ‘building' means a residential or non residential roofed structure, and includes an 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." [Vide Uttar Pradesh Act 37 of 1972, sec. 4 (w.e.f. 20.09.1972] (5) xxxx (6) xxxx (7) xxxx (8) xxxx 16. A plain reading of the aforesaid provision leads to irresistible conclusion that among the suits excluded from the cognizance of the Courts of Small Cause, a suit by lessor for the vacancy of the lessee from the building after determination of the suit is saved. In other words, the effect of the amendment of the Second Schedule in its application to the State of Uttar Pradesh and thereby its application to the State of Uttarakhand, the suit by lessor for eviction of lessee of a building after determination of the lease is not excluded from the cognizance of the Courts of Small Causes. Such a suit is definitely maintainable before the learned Munsif acting as Small Cause courts of Pithoragarh. 17. So all the arguments advanced by the learned counsel for the petitioner in this case are not acceptable. Hence, the Court comes to the conclusion that the concurrent findings in this case cannot be set aside in exercising writ of certiorari jurisdiction or supervisory jurisdiction under Article 226/227 of the Constitution of India, respectively. 18. The writ petition is, therefore, dismissed accordingly. 19. There shall be no order as to costs.