Sohan Veer Singh vs Smt. Rehti Devi and Others

Prakash Krishna, J.—The above revision was heard, decided and was dismissed by the judgment dated 18.2.2003. The said judgment has been set aside by the Apex Court in Civil Appeal No. 4162 of 2003 by the judgment dated 8th of May, 2003 on the ground that the High Court while dismissing the revision has not given the reasons for dismissal of the revision. The Apex Court noticed that operative part of the judgment of the High Court running into just a line or two is not preceded by any discussion, howsoever brief it might have been, on any of the pleas advanced and is bereft of any other reasoning or finding of its own. The matter was reheard consequently.

Raising a short controversy the present revision has been filed u/s 25 of the Provincial Small Cause Courts Act against the judgment and decree dated 19th of January, 1989 passed by the Xth Additional District Judge, Meerut in S.C.C Suit No. 74 of 1987. The said suit was filed by the plaintiff-opposite parties herein, for ejectment of the defendant-applicant from a shop described at the foot of the plaint with the allegations that the said shop was constructed in the year 1981 and the suit having been filed within a period of 10 years i.e. in the year 1987, the provisions of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act No. 13 of 1972 are not applicable. The defendant was tenant on a monthly rent of Rs. 255/- and he was in arrears of rent since 4.2.1987. The tenancy has been determined by means of the notice dated 4.6.1987, it was replied on incorrect facts by the defendant on 3.7.1987. A sum of Rs. 1275/- as arrears of rent, damages and pendente lite and future was claimed at the rate of Rs. 400/- per month. The suit was contested by denying the plaint allegations on the pleas inter alia that the shop in dispute is an old construction. Its earlier municipal number was 2/670 which was changed to 3/326. It was recorded in the municipal record for the year 1967 -1968 and 1972-1973 as 2/672. Thereafter, in the year 1977-1978 and currently it bears municipal No. 3/362. Deposit of rent u/s 30 (1) in Misc. Case No. 79 of 1986 in the Court of Munsif, Baghpat was also pleaded with the allegation that the rent has been deposited for the period up to June, 1987. The said shop was purchased by the present plaintiff from Smt. Santosh Kumari through registered letter dated 4th February, 1987. The defendant came to know of the transaction only on 25th of May, 1987. Incorrect boundaries of the shop in dispute have been given in the plaint. In paragraph 23 of the plaint it was stated that the shop in dispute was constructed in the year 1967-68 or earlier to it and as such the provisions of the U.P. Act No. 13 of 1972 are applicable. Benefit of Section 20(4) of the said Act was also claimed vide para 24 of the written statement.

On the basis of the pleadings of the parties the following issues were framed by the trial court:

Whether the shop in question was constructed in the year 1981 and the provisions of U.P. Act No. XIII of 1972 are not applicable?

Whether the notice dated 25.3.87 is illegal and has been waived?

Whether the defendant is a defaulter?

To what relief, if any, the plaintiffs are entitled?

It was found that the shop in question was constructed in the year 1981 and the provisions of U.P. Act No. 13 of 1972 does not apply, under the point No. 1. The notice dated 25th of May, 1987 (Ext. 4) was found valid, under point No. 2 and the said notice has not been waived. Under point No. 3 the Court found that the defendant-tenant has failed to prove that he made any effort to make the payment of rent after receiving the notice within a period of 30 days and the tenant was held to be defaulter. Under the point No. 4 it was found that the plaintiffs No. 2 and 3 have accepted a sum of Rs. 1,530/- through money orders from the defendant much after the filing of the suit. The suit for ejectment and for mesne profit at the rate of Rs. 255/- per month, pendente lite and future was decreed.

Shri A.K. Gupta, Advocate, has not challenged findings recorded by the court below on issue Nos. 2 and 3 except the one recorded under point No. 1. The only argument advanced by the learned Counsel for the applicant in support of the revision is that the finding recorded by the court below holding that the shop in dispute is a ''new construction'', is incorrect. Elaborating the argument, he submits that the plaintiffs have failed to prove that the shop in dispute is a new construction and as such the decree for eviction is liable to be set aside. Shr Pramod Jain, Advocate, the learned Counsel for the plaintiff -opposite parties, on the other hand, submits that there is sufficient material on record to substantiate the finding recorded by the court below with regard to the construction of the disputed shop.

Considered the respective submissions of the learned Counsel for the parties and perused the record. Shri A.K. Gupta, Advocate, invited attention of the Court towards para 7 of the plaint wherein only this much has been stated that the shop in dispute was constructed in the year 1981 and as such the provisions of U.P. Act No. 13 of 1972 are not applicable. He submits that indisputably the construction of the said shop was not raised by the plaintiffs. It was purchased by them from its erstwhile owner Smt. Santosh Kumari wife of Sukhmal Chand Jain and Pawan Kumar and Rajiv Kumar who had inducted the defendant as a tenant on the monthly rent of Rs. 255/-. The said shop was purchased by means of registered sale deed dated 4th of September, 1987. Neither Santosh Kumari nor her husband nor any other person on behalf of vendor has been examined by the plaintiffs. The date of construction of the shop in dispute could be established only by examining the vendors who actually raised the construction and not otherwise. The further submission is that since the very beginning the case of the defendant is that the present municipal number of the shop in dispute is 3/326. Earlier it was 3/285 and 2/672. The only witness examined by the plaintiffs is Trilok Chandra, husband of the plaintiff No. 1. The said witness (PW/1) has pleaded ignorance in the cross-examination as to when the disputed shop was constructed or who was the earlier owner prior to Smt. Santosh Kumari.

I have given careful consideration to the aforesaid submissions of the learned Counsel for the defendant-applicant.

Section 2(2) of the U.P. Act No. 13 of 1972 provides the method of determination of the date of construction of a building. For the sake of convenience the said section with Explanation - I is reproduced below:

Explanation (1)-For the purposes of this Section --

(a) The construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to to or otherwise recorded by the local authority having jurisdiction, and in the case of a building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time:

Provided that there may be different dates of completion of construction in respect of different parts of a building which are either designed as separate units or are occupied separately by the landlord and one or more tenants or by different tenants;

(b) "construction" includes any new construction in place of an existing building which has been wholly or substantially demolished;

(c) where such substantial addition is made to an existing building that the existing building becomes only a minor part thereof the whole of the building including the existing building shall be deemed to be constructed on the date of completion of the said addition.

The aforesaid Explanation has been subject matter of interpretation by the Apex Court. The Apex Court examined the matter in great depth in Om Prakash Gupta v. Dig Vijendra Pal Gupta 1982 ARC 391 and has held that if there is an assessment, as in the present case it is , it will be the date of first assessment which will be deemed to be the date of completion of the construction. It repelled the argument that if the occupation of the tenant is earlier to the date of the first assessment, the date of occupation of the tenant would be the date of construction. On an interpretation of the aforesaid provision it has been held that the occupation would be taken to be the date of completion of the construction only when there is no report or record of the completion of construction or no assessment thereof.

In the case on hand, the house tax assessment of the property No. 3/285 is on the record. One Shri Karmi is recorded as owner of the said property. Under column No. 5 it is mentioned that the owner in occupation of the said shop and it is a new shop whose earlier tenant was Shri Pal, Vinod Kumar since 1.10.1979. For the sake of convenience the entry under Column No. 5 is reproduced below:

Dukaan Swayam

Nayi Dukaan Kirayedar Shripal Vinod Kumar 1-10-79.

The said assessment relates to the assessment year 1980-81 as mentioned on the top of assessment list. In the column No. 5 it is mentioned that it is a new shop and therefore, in absence of any contrary material, it shall be presumed to be a newly constructed shop. The learned Counsel for the applicant could not place any material to show that the entry in the said municipal extract that it is a new shop, is in any manner incorrect or any other inference can possibly be drawn. At this stage, he invited the attention of the Court towards the municipal extract for the years 1967-1968 in respect of the property No. 2/672. It appears that there were three properties of annual value of Rs. 480/-, Rs. 480/- and Rs. 300/- and the amounts of tax assessed are Rs. 24/- , Rs. 24/- and Rs. 15/- respectively. The other municipal extract is in respect of the property No. 2/672. This is also in respect of three properties relating to the Assessment Year 1972-1973. The annual value of the properties are Rs. 540/-. Rs. 540/- and Rs. 420/-, the amount of tax, Rs. 27/-, Rs. 27/- and Rs. 21/- respectively. The third and last municipal extract referred by the learned Counsel for the applicant in respect of the property No. 3/285 whereunder the tax has been assessed at Rs. 27/-, Rs. 27/- and Rs. 12/-. It may be noted that the assessment list which has been relied by the plaintiff- landlord is relating to the assessment year 1980-1981 wherein the annual value of the properties have been mentioned at Rs. 2,400/- each and the tax has been assessed thereon at Rs. 120/- each. This is in respect of the property No. 3/285.

There is no evidence except the bald statement of the tenant that these assessments do relate to the property in question.

At this juncture, Shri Pramod Jain, learned Counsel for the plaintiffs-respondents rightly invited attention of the Court to the statement of the defendant tenant. The defendant tenant has examined himself as DW/1. He has stated in third paragraph of his statement that earlier he was in service of Army which he left in the year 1980 and shifted to Baraut in the year 1982 where he started the shop. He states that he did not witness construction of the shop in dispute but he took it on rent after its completion. Earlier, it was a small shop. Its size was increased by making it a bigger one and he is the first tenant after the shop was made bigger. The relevant extract of his statement is quoted below:

Dekha Jab Taiyar Huyi Tab Hamne Kirayepar lee Meri Dukaan Pahale Chhoti Thi Phir Barhi Banakar Mujhe De Di Barhi Banane Ke Bad Sabse Pahala Kirayedar Main Hi Hua.

The aforestated statement of the defendant is in the nature of his admission that the shop was newly constructed near about the year 1982. He took the shop on rent after its completion in the year 1982 and became its first tenant. In the last sentence of para 17 of the written statement the defendant tenant has stated that in the year 1977-78 the municipal number of the disputed shop was 3/285 and presently its number is 3/326. The trial court has found and rightly so that the defendant tenant has not been able to connect the municipal assessments for the assessment years 1967-1968, 1972-1973 and 1977-1978 to the disputed shop. There is no material on record to show that these municipal assessments do relate to the shop in question. Even the defendant tenant has not stated in his deposition that these municipal assessments relate to the shop in question. Only this much has been stated by him that on inspection of the record of the Nagar Palika, he found that Karm Singh was the owner of the Chaat Shop whose number was 2/672 and its new number was 3/672. All the properties of Karma Singh were allotted the same municipal number. Rahati Devi and others, the plaintiffs, have purchased the shop owned by him along with gallery and Ahata lying behind the disputed shop. The present number of the disputed shop is 2/672. It may be noted that there appears to be contradiction in between the pleadings and the evidence. In para 17 of the written statement it has been stated that the present number of the disputed shop is 3/326 while in the statement he states that the current number of the shop is 2/672. The defendant has tried to confuse the matter and has failed to connect the municipal extracts relied upon by him to the disputed shop. It may be noted that according to the own statement of the defendant tenant, the plaintiffs purchased the disputed shop alone along with gallery and Ahata lying behind it, while Shri Karma Singh had number of properties and all these properties were given a consolidated municipal number. The municipal extract of the year 1980-1981 is in respect of the property No. 3/285. Even if the said municipal extract is ignored, in view of the statement of the defendant tenant that the shop in dispute was constructed in the year 1982 and he is its first occupant as tenant, the date of first occupation would be the relevant date for determining the date of construction. This being so, the suit was filed well within the period of 10 years from 1982 and as such the provisions of the U.P. Act No. 13 of 1972 are not applicable as rightly held by the court below.

The learned Counsel for the applicant, Sri A.K. Gupta, has relied upon the following judgments for the proposition that burden to prove that the building is exempt from the operation of the Rent Control Act lies upon the plaintiff-landlord:

Ram Saroop Rai v. Smt. Lilawati 1980 ARC 466;

Suresh Kumar Jain v. Shanti Swarup Jain and Ors. 1997 (1) ARC 640; and

Smt. Vijay Lakshmi Jain Vs. Rameshwar Dayal Gupta, .

In these cases it has been held that the burden lies upon the landlord to prove the date of construction in the light of Section 2 (2) of the U.P. Act No. 13 of 1972. The landlord who claims such exemption had to prove that the construction of the building is within 10 years of the suit, as held in the case of Ram Saroop (supra). The said decision has been followed in the case of Suresh Kumar Jain (supra) and Smt. Vijay Lakshmi Jain (supra).

One of the limbs of the argument that in such matters, admission by a tenant about date of construction as was held by the Apex Court in Ram Saroop''s case (supra), is not relevant, has got no substance. In the case of Ram Saroop (supra), the alleged admission of the tenant was in the rent deed itself, which is not so here. Here, the tenant is bound by his statement on oath made in his deposition, which makes all the difference. It has not been laid down by the Apex Court therein that even an admission by a tenant in his deposition is not binding on him.

On the facts of the case on hand, in view of the categorical statement made by the defendant himself in his deposition referred to above, and the material placed on the record, it cannot be said that the plaintiff has failed to discharge his initial burden. In view the admission made by the defendant which has not been explained in any manner subsequently which finds corroboration from the municipal record relating to the assessment year 1980-1981, the view taken by the court below that the shop in dispute is a new construction is perfectly justified and calls for no interference in the revision.

In the result, I find no merit in the revision. The revision is dismissed with cost.

Time to vacate the disputed shop is granted up to 31st of December, 2009 provided the applicant files an undertaking on affidavit before the trial court that he will vacate the disputed accommodation and will hand over its peaceful vacant possession to the plaintiff opposite party on or before that date. The applicant shall also deposit the entire arrears of rent for the use and occupation of the disputed accommodation at the rate of Rs. 2000/- per month from September, 2009 in advance within one month. If the applicant fails to fulfill the conditions, as directed above, he will be liable to pay the damages for use and occupation of the shop in dispute at the rate of Rs. 2,000/- per month for the period commencing from 1st of September, 2009 till the date of actual delivery of possession.