1. Heard learned counsel for the petitioners and learned counsel appearing for the respondents.
2. Present petition has been filed for setting aside the judgment and decree dated 22.1.2020 passed by the Additional District Judge, Court No. 3, Jhansi in SCC Revision No. 17 of 2019 as well as judgment and decree dated 8.4.2019 passed by the Judge Small Causes Court, Jhansi in SCC Suit No. 10 of 2009.
3. Shorn of details, the facts of the case in brief are that the suit was filed by the plaintiff on the ground that they are the owner of House No. 646, Mohalla Thakuryana, Puliya No. 9, Jhansi. Reference was made to earlier litigation in regard to the same property. It is alleged that the house was very old, which consisted four rooms, one kitchen, latrine and courtyard. The default in making payment of rent was also claimed. It was alleged that the house was demolished by the tenant on 20.11.2008 and when the defendants tried to raise constructions, injunction suit was filed by the plaintiff, wherein interim order was granted in favour of the plaintiff. A notice was issued to the tenant, which was replied by the tenant. Thereafter, when the rent was not paid and the property was not vacated the suit was filed. The suit was contested by the tenant mainly on the ground that the house was very old and in the last rains substantial part of the house had fallen down and was not left in liveable condition. Therefore, he obtained oral permission from the plaintiffs and Mahendra Singh, who permitted tenants to raise construction and with this permission two khaprail roofed rooms were made at the same place and no demolition or material alteration was done by the tenant and that no rent is due.
4. The trial court framed five issues. (1) whether the notices given to the defendant is valid; (2) whether the defendant has raised constructions and has materially altered the premises in question without permission of the landlord; (3) whether any default in payment of rent was committed; (4) whether the defendants are entitled for benefit of Section 20(4) of the UP Act 13 of 1972 (hereinafter referred to as the Act) and; (5) relief, if any.
5. On the issue of notice it was found that the notice was duly received by the tenant and was also replied; on the issue of material alteration it was found that the case of the defendant himself is that the house had fallen down due to excessive rains and was not in liveable condition and therefore, oral permission was sought from the plaintiffs and Mahendra Singh s/o Dwarika Prasad, which was granted by them and thereafter two khaprail rooms were constructed. In view of this it was found that the defendant has raised construction without written permission of the plaintiff and has materially changed the tenanted accommodation; on the issue regarding default in payment of rent and extension of benefit of Section 20(4) of the Act it was found that the tenant failed to prove that he had paid the rent and therefore, the benefit of Section 20(4) of the Act was refused and accordingly, the relief was granted in favour of the plaintiff by directing the eviction, payment of arrears of rent, payment of damages @ Rs. 100/- per day. The revision filed by the tenant was also dismissed by the court below by recording finding that there is no error in the judgment of trial court, therefore, no interference is warranted.
6. Challenging the impugned orders submission of learned counsel for the petitioners is that it was alleged that the building was demolished by the tenant-petitioner herein whereas notice was given to vacate the building, therefore, the Act would not apply and notice is not valid. Attention was drawn to the plaint allegation that building has been demolished and now exist a plot, therefore, the suit itself before Judge, Small Causes Court was not maintainable. It is further asserted that since a declaration was sought that the plaintiff be declared as a tres-passer the suit itself before the Judge, Small Causes Court was not maintainable as the civil court alone would have the jurisdiction to make such declaration. It was further submitted that now the property is in the shape of plot, therefore, material alteration also could not be seen. It is further submitted that concurrent findings by both the courts below are perverse and suffers from material irregularities and illegalities. Attention was drawn to Article 4 of 2nd Schedule of Section 15(1) of the Provincial Small Causes Court Act, 1887.
7. Per contra, learned counsel appearing for the landlord-respondent submits that the suit was perfectly maintainable. He submits that it is an admitted fact that constructions were raised by the tenant-petitioner without taking written permission of the landlord and that even if the building has fallen down due to excessive rainfall, no notice was given to the landlord as required under Section 29 (2) of the Act 13 of 1972. He further submits that the record clearly reflects that the fact that the accommodation was a building, which was demolished by the tenant, is admitted to the tenant-petitioner and the only case put forward by the tenant-petitioner in the written statement is that the construction was raised with the oral permission of the landlord. He submits that such oral permission will not help the tenant-petitioner, moreso, it was specifically stated that no such oral permission was granted.
8. I have considered the submissions and have perused the record.
9. Before proceeding further it would be relevant to take note of relevant provisions of Sections 3(i) and 29 of the UP Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 and Section 15 of the U.P. Provincial Small Causes Court Act, 1887 and Article 4 of 2nd Schedule of Section 15 of Provincial Small Causes Court Act, 1887 (UP Amendment by Act No. 37 of 1972) (w.e.f. 20.9.1972), which are quoted as under:-
"Sections 3 (i) and 29 of the Act of 1972
3. (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) and 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;
29. Special Protection to tenants of buildings destroyed by collective disturbances etc. - (1) Where in consequence of the commission of mischief or any other offence in the course of collective disturbances, any building under tenancy is wholly or partly destroyed, the tenant shall have the right to re-erect it wholly or partly, as the case may be, at his own expenses within a period of six months from such injury :
Provided that if such injury was occasioned by the wrongful act or default of the tenant he shall not be entitled to avail himself of the benefit of this provision.
(2) Where in consequence of fire, tempest, flood or excessive rainfall, any building under tenancy is wholly or partly destroyed the tenant shall have the right to re-erect or repair it wholly or partly, as the case may be, at his own expense after giving a notice in writing to the landlord within a period of one month from such injury :
Provided that the tenant shall not be entitled to avail himself of the benefit of this provision-
(a) if such injury was occasioned by his own wrongful act or default ; or
(b) in respect of any re-erection of repair made before he has given a notice as aforesaid to the landlord or before the expiration of a period of fifteen days after such notice, or if the landlord in the meantime makes an application under section 21, before the disposal of such application ; or
(c) in respect of any re-erection or repair made after the expiration of a period of six months from such injury or, if the landlord has made any application as aforesaid, from the disposal thereof.
(3) Where the tenant, before the commencement of this Act, has made any re-erection or repair in exercise of his rights under section 19 of the old Act, or after the commencement of this Act makes any re-erection in the exercise of his right under sub-section (1) or sub-section (2) ,-
(a) the property so re-erected or repaired shall be comprised in the tenancy ;
(b) the tenant shall not be entitled, whether during the tenancy or after its determination, to demolish the property or parts so erected or repaired or to remove any material used therein other than any fixtures of a movable nature ;
(c) Notwithstanding, anything contained in sub-section (2) of section 2, the provisions of this Act shall apply to the building so re-erected :
Provided that no application shall be maintainable under section 21 in respect of any such building on the ground mentioned in clause (b) of sub-section (1) thereof within a period of three years from the completion of such re-erection."
Section 15 of PSCC Act, 1887 (UP Amendment)
15. Cognizance of suits by Courts of Small Causes.--(1) A Court of Small Causes shall not take cognizance of the suits specified in the second schedule as suits excepted from the cognizance of a Court of Small Causes.
(2) .....
(3) .....
Second Schedule (Section 15) (UP Amendment) Article 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 include 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. On perusal of record I find that paragraph nos. 1, 2 and 3 of the plaint have been admitted in the written statement by the tenant. Insofar as existence of building is concerned, it has been categorically admitted in written statement that there had been some litigation earlier also and in paragraph nos. 23 to 25 of the written statement it was asserted that the house was very old and roof was made of khaprail and ballis were used and that a considerable portion of the accommodation had fallen down due to rain and the house was beyond repair and could not have been brought in liveable condition even after repairs, therefore, permission was sought from the landlord, which was granted orally and it is only thereafter room were constructed on the same place where the earlier accommodation was existing. It is further asserted in the written statement that the house was more than 100 years old and the defendant has not demolished any part deliberately. Thus, in the written statement it has been admitted that the tenancy was of an accommodation, which was demolished or as alleged fallen down in the rains, however, as per the assertions made in the plaint, at the time of filing of the suit the same was in the shape of a plot and therefore, since status of the petitioner was that of a tenant when the suit was filed before the Court of Judge Small Causes.
11. It is settled law that the land is included as a part of tenancy. Although it is alleged that the accommodation was not demolished but had fallen down but even if the accommodation had fallen down, admittedly, no notice under Section 29 (2) of the Act was given. Admitted case of the petitioner was that the house got damaged due to rains and was beyond repairs and was constructed with the oral permission of the landlord, however, even such permission could not be proved by the tenant.
12. Perusal of definition of building given in Section 3(i) of the Act and Article 4 of 2nd Schedule of Section 15 of the PSCC Act (UP Amendment) clearly shows that the building means roofed structure and includes land including any garden, garage, outhouse and land appurtenant to such building. In the present case, building includes of land beneath i.e. over which the construction / structure / building was existing was under tenancy. It is not even the case of the petitioner that the plaintiff is not the owner of the land and the building existing thereon of which he was the tenant. Even from this point of view the suit in the circumstances as stated in the plaint and as admitted in the written statement was clearly maintainable and there had been no jurisdictional error on the part of the courts below to entertain and decide the same, moreso, no such objection was taken before the courts below.
13. A reference may also be made to judgment of this Court in the case of Munnu Yadav vs. Ram Kumar Yadav and another 2020 (1) ALJ 316. Paragraphs 14 to 18 whereof are quoted as under:-
"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. 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."
14. Insofar as jurisdictional error or the defect in the notice is concerned, suffice to note that no such ground was taken before the trial court or even before the revisional court as it is reflected from perusal of the memo of revision annexed with the paper book. Therefore, the argument of learned counsel for the tenant-petitioner raised before this Court for the first time that the suit itself was not maintainable and the judgments suffers from jurisdictional error has no substance and is liable to be rejected.
15. Therefore, I do not find any good ground to entertain such objection taken for the first time before this Court filed under Article 227 of the Constitution of India.
16. In any view of the matter, I do not find any jurisdictional error in the judgments of the courts below so as to interfere in the concurrent findings recorded by the courts below in exercising powers under Article 227 of the Constitution of India.
17. Insofar as findings of facts are concerned, a reference may also be made in this regard to the Constitutional Bench judgment of the Hon'ble Apex Court in the case of Hindustan Petroleum Corporation Ltd. Vs. Dilbahar Singh (2014) 9 SCC 78 according to which no interference is warranted in such findings of fact. It is also settled law that jurisdiction under Article 227 of the Constitution of India is akin to revisional jurisdiction and the scope of interference in the findings of fact is also very limited.
18. In such view of the matter, I do not find any jurisdictional error or perversity in the findings recorded and the conclusion drawn by the courts below. Present petition is devoid of merits and is accordingly dismissed.
19. Having considered the facts and circumstances of the case, subject to filing of an undertaking by the petitioner-tenant before the Court below, it is provided that:
(1) The tenant-petitioner shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 31.8.2021;
(2) The tenant-petitioner shall file the undertaking before the Court below to the said effect within one month from today;
(3) The tenant-petitioner shall pay entire decretal amount within a period of two months from the date of receipt of copy of this order.
(4) The tenant-petitioner shall pay damages as held by the court below per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 31.8.2021 or till the date he vacates the premises, whichever is earlier and the landlord is at liberty to withdraw the said amount;
(5) In the undertaking the tenant-petitioner shall also state that he will not create any interest in favour of the third party in the premises in dispute;
(6) Subject to filing of the said undertaking, the tenant-petitioner shall not be evicted from the premises in question till the aforesaid period;
(7) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically.
(8) In case the premises is not vacated as per the undertaking given by the petitioner, he shall also be liable for contempt.
20. There shall be no order as to costs.
Order Date :- 19.2.2021 Lalit Shukla