Ram Lakhan vs Addl.District Judge, Gorakhpur

Rakesh Tiwari, J.—Heard Sri Arvind Srivastava, counsel for the petitioner, Sri Tarun Verma appearing for respondents and perused the record. The petitioner has challenged the validity and correctness of the impugned judgment and order dated 18.4.2009 passed by Additional District Judge, Room no. 1, Gorakhpur in SCC Revision No. 5 of 2003, Ram Lakhan Singh son of late Kishore Chaudhary Vs. Keshari Shukla son of late Swaminath Shukla, as well as judgment and order dated 25.3.2003 passed by the Small Causes Court, Gorakhpur in SCC Suit no. 76 of 1992, Sri Keshari Nandan son of late Swaminath Shukla and others Vs. Ram Lakhan Singh.

Backdrop of the case is that petitioner claims that he took a piece of land on rent @ Rs. 10/ per month from the respondents but rent receipts were not issued to him inspite of demand. He constructed his house over it about 36 years ago. According to him, it was numbered as premises no. C/179/53 and was assessed by Nagar Palika. It is also stated that petitioner had taken electricity connection no. 20903/507/76 in his name.

It is submitted that a registered notice dated 3.7.1991 was sent to him by the landlord acknowledging that only land had been given on rent to him and the constructions over it were raised by the petitioner. The landlord in that notice had demanded that the constructions made by the petitioner be removed by him and the land be returned to him in vacant condition; that after receipt of the aforesaid notice, when son of plaintiff no. 2 namely Sanjay alias Guddu tried to get forcible possession of the premises constructed by the petitioner, the tenant was compelled to institute suit no. 1469 of 1991, Ram Lakhan Vs. Vayu Nand, in which an interim order was granted. It is stated that thereafter a notice dated 30.9.1992 is said to have been sent to the petitioner which he claimed not to have been served on him. By means of this notice, tenancy of the petitioner was terminated.

Contention of the counsel for petitioner is that inspite of admission of the fact by the landlord that house was constructed by the petitioner, suit no. 76 of 1992 was filed by Sri Keshri Nandan and Sri Babu Nandan Shukla, alleging for the first time that petitioner was a tenant at the rate of Rs. 65/ per month. It was also stated in the suit that house was not constructed by the plaintiff and that when the petitioner did not pay rent of October 1989 to 6.11.1992 inspite of the notice dated 30.6.1992, the suit for decree of arrears of rent and eviction was filed.

The defendant appears to have filed objection in the suit stating that rent was never Rs. 65/ nor was the house constructed by the plaintiff which in fact was claimed to have been constructed by the defendant and rate of rent of the land was Rs. 10/ per month which is being paid continuously by him to the landlord.

In support of his case, the plaintiff examined himself as P.W.1, Sri Mithai Lal as P.W.2 and Sri Veer Narain Rai as P.W.3, whereas the defendant examined himself as D.W.1, Sri Ayodhya Prasad as D.W.2 and Sri Arjun as D.W.3.

The Small Cause Court decreed suit no. 76 of 1992 by impugned judgment and order dated 25.3.2003, directing the tenant petitioner to hand over vacant possession of the house to the plaintiff. Aggrieved by the aforesaid order, he preferred SCC revision no. 5 of 2003 which has also been dismissed by impugned judgment and order dated 18.4.2009.

The impugned judgment and orders have been assailed by the counsel for petitioner on the following grounds :

(a) that no opportunity of hearing was given to the petitioner;

(b) that the suit was not maintainable as the property let out was the land and not building and hence it is not covered by the provisions of U.P. Act No. 13 of 1972, consequently the Small Causes Court has no jurisdiction to adjudicate in respect of the land under tenancy of the petitioner, and

(c) that there being no notice given by the landlord terminating tenancy of the petitioner, he continues to be the tenant of the land.

In support of his contention (a) above, the counsel for the petitioner contends that the suit was filed in the year 1992 and it was decided on 25.3.2003; that from 16.3.2003 to 20.3.2003, courts were closed on account of Holi and thereafter due to disturbance in the city of Gorakhpur, curfew was imposed w.e.f. 20.3.2003 to 25.3.2003; that petitioner was in the area of P.S. Tiwaripur, Rajghat and Kotwali, visiting his relative at the time curfew was imposed as such he could not file his written argument on 25.3.2003 when orders were passed. Thus, his absence was not deliberate and the order impugned is liable to be set aside on this ground.

As regards the second contention (b), counsel for the petitioner submits that only land was given on tenancy and the building having been constructed upon it by the petitioner, the provisions of U.P. Act no. 13 of 1972 would not apply. In this regard, he has referred to section 29 of U.P. Act no. 13 of 1972 as well as section 3(a), 3(i) and 3(j) which defines tenant, building and landlord respectively. It is urged that from perusal of these definitions, it is abundantly clear the Act applies only in respect of a building and protection has been given a tenant upon the land from its applicability.

It is lastly submitted by the counsel for petitioner that both the courts below have not considered the evidence of D.W.1, 2 and 3 and for this reason also, the orders impugned are liable to be quashed.

In rebuttal, Sri Tarun Verma appearing for the respondents, has relied upon the averments in paragraph nos. 4,5 and 6 of Annexure C.A.3 appended with the counter affidavit which is an application filed by the petitioner for transfer of case to another court. For ready reference, aforesaid paragraph no. 4,5 and 6, read thus :

He submits that aforesaid paragraphs clearly establish that the petitioner had not been arguing the case since 1999 to 2002 inspite of having been given ample opportunity of hearing.

He further submits that subsequently counsel for the petitioner though appeared in the case but stated that he was disengaged and now the petitioner has come up with a case that he has not been able to file his written statement as he was not able to move out because of curfew imposed on the date fixed and furnish the written argument when the case was decided.

Sri Tarun Verma for respondents has placed the revisional order passed by the Courts below and has argued that revisional court had considered the question regarding grant of opportunity to the petitioner on various dates fixed for hearing and has come to a conclusion that this point has been unnecessarily raised by the revisionist petitioner. The findings recorded by the revisional court in this regard is as under :

So far as the question whether land was given on rent or building was given, is concerned, it is submitted by the counsel for respondent that both the courts below have discussed this aspect of the matter and have disbelieved the case of tenant petitioner.

He next submits that suit no. 1469 of 1991 filed by the petitioner against the respondent landlord, was for the relief of not evicting him except in accordance with law, leads to irresistible conclusion building was given on rent to the petitioner and not the land.

Sri Verma has then relied upon the following paragraph nos. 27 and 28 of Annexure no. C.A.2 to the counter affidavit which is written statement of the landlord in the suit filed by the petitioner aforesaid in support of his contention. It is thus :

Sri Tarun Verma has disputed that notice dated 3.7.1991 appended as annexure no. 1 to the writ petition, was not given by the respondent landlord by which landlord is said to have admitted that house had been constructed by the tenant petitioner and had directed him to remove his constructions and given possession of the land to the landlord. According to counsel for the respondent, the notice dated 30.9.1992 for payment of arrears of rent, determining the tenancy and eviction of the petitioner defendant was given by the landlord which is appended as annexure no. 3 to the writ petition.

The last question of jurisdiction raised by the counsel for petitioner has been replied by the respondent counsel by placing reliance upon the Second Schedule, sub clause (4) of the Provincial Small Cause Courts Act, 1987 as amended in U.P., which reads thus :

"(4). a suit for the possession of immoveable 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 determination of lease.

Explanation For the purpose 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."

Apart from above, it is lastly urged by the counsel for respondent that writ petition of the petitioner must fail on the ground that petitioner''s son has constructed his own house within same municipal limits and hence he cannot claim section 20(4) of the Act he is liable to be evicted.

In rebuttal, counsel for the petitioner has stated that the notice dated 30.9.1992 was not served upon him and as such the revisional court has wrongly placed burden upon him to prove that it was served.

Having heard the submissions advanced by learned counsel for the parties, I find that this writ petition can be decided on short point of applicability of the Act and provisions of section 20(4) contained therein.

The petitioner has not been able to dispute the finding of the courts below that his son has constructed his own residential accommodation which is apparent from the following finding :

It is apparent from the record that the petitioner had been granted opportunity on a number of dates fixed in the matter. Both the courts below have recorded concurrent findings of fact that petitioner had been granted a number of opportunities but he had not availed of them. The suit was maintainable as the property let out was not land but building. In view of aforesaid concurrent findings of fact, provisions of U.P. Act No. 13 of 1972 would apply. As regards the noticed dated 30.9.1992 is concerned, the revisional court has rightly held that it is for the petitioner to prove that it has been served upon him or not. Even if service of the notice is disputed by the petitioner, still in the facts and circumstances of the case provisions of section 20(4) of the Act, would apply.

Even otherwise, if the contention of the petitioner is accepted on its face value, he had no right to change the user of the land and make constructions over it for residential purpose without written consent of the landlord. He has been found to be tenant of building and not land by both the courts below. The court of small causes therefore had jurisdiction in the matter.

As regards notice dated 3.7.1991 is concerned, there was no occasion for the landlord to acknowledge that petitioner had constructed a residential house over the land. This notice appears to have been prepared for the purpose of this case. In fact the landlord had given notice dated 30.9.1992 for eviction which was claimed by the landlord to have been received by him. Since he had denied receipt of notice, the burden of proof lay on him to discharge his onus of not having served registered notice aforesaid sent by the landlord through his counsel.

For all the reasons stated above, there appears to be no illegality and infirmity in the orders impugned. The petition fails and is accordingly dismissed. The petitioner shall hand over vacant possession of the premises in dispute within a period of ten days from today. No order as to costs.