Kali Ram (Deceased)------------------------------Plaintiff/Revisionist Versus Mistri Udal (Deceased)------------------Defendant/Opposite party Honble Prakash Krishna, J The present revision has been preferred under Section 25 of the Provincial Small Cause Courts Act 1887 against the judgment and decree dated 28th November, 1997 passed by the J.S.C.C./Special Judge, Muzaffarnagar in S.C.C. Suit No.9 of 1992, Kali Ram vs. Mistri Udal, whereby the court below has dismissed the aforesaid suit which was filed for recovery of Rs.32,100/- as arrears of rent from 11th October, 1989 to 30th September, 1992 at the rate of Rs.900/- per month together with future damages and pendente lite with interest at the rate of Rs.12% per annum and also for recovery of Rs.360/- as mesne profit from 1st October, 1992 to 12th October, 1992. A decree for ejectment of the defendant tenant from the premises in suit was also claimed.
The aforesaid suit was instituted on the pleas inter alia that the plaintiff is the owner and landlord of the premises described at the foot of the plaint, which was let out to the defendant tenant on Rs.900/- per month excluding water tax. The defendant has paid rent upto 30th November, 1987 and since then he is defaulter. The building in question being a "new construction" as it was assessed to house tax with effect from 1st April, 1986, the provisions of U.P. Act No. 13 of 1972 are not applicable to it. Its municipal number is 274/12. The tenancy was terminated by means of a notice dated 28th August, 1992 which was served on the defendant on 31st August, 1992.
The suit was contested on the pleas inter alia that the construction in question is an old construction and the provisions of U.P. Act No. 13 of 1972 are applicable. The premises in question is a gher, on both sides of it are shops of the plaintiff and the entire property is covered under the provisions of U.P. Act No. 13 of 1972. It was not assessed to municipal tax at the time of letting. The rate of rent is Rs.100/- per month and the same has been paid upto 31st July, 1992. The benefit of Section 20 sub clause (4) of the U.P. Act No. 13 of 1972 was claimed as the defendant has deposited the entire arrears of rent etc. on the "first date of hearing".
The parties led evidence oral and documentary in support of their respective cases.
The trial court framed the following issues in the case.
1. What is the rate of rent ?
2. Whether the defendant has paid rent upto 31.07.1992 ?
3. Whether the provisions of U.P. Act No. 13 of 1972 are not applicable to the property in suit ?
4. To what relief, if any, is the plaintiff entitled ?
Heard Shri V.K. Birla, learned counsel for the applicant and Shri P.K. Jain, learned senior counsel for the opposite party.
Learned counsel for the applicant has submitted the following three points for consideration before this Court.
Firstly, the finding recorded by the trial court with regard to rate of rent is perverse and against the material on record.
Secondly, the property in dispute is not "a building" within the meaning of provisions of U.P. Act No. 13 of 1972. It is in the shape of open piece of land with small tin shed described as gher. It does not fall within the purview of the provision of the aforesaid Act.
Thirdly, in alternative, if it is treated as "a building" within the meaning of the said Act, the building in question is exempted from the operation of the said Act as it is a "new construction" having first assessment under the municipalities' law with effect from 1st April, 1986 and the suit was filed in the year 1992 i.e. within the exemption period. Section 2(2) of the Act provides that any building constructed after 1st April, 1985 shall be exempted from the operation of the U.P. Act No. 13 of 1972 for a period of 40 years. Earlier the period of exemption was 10 years. Elaborating the argument, it was submitted that the first assessment of the building in question is 1st April, 1986.
In contra, Shri P.K. Jain, learned senior counsel for the tenant opposite party submits that the question with regard to rate of rent is essentially a question of fact. The trial court after taking into consideration the available material on record has reached to the conclusion that it was Rs.100/- per month as was pleaded by the tenant and not Rs.900/- per month. With regard to the second point, he submits that the building in question is not a "new construction" and the property in dispute is "a building" within the meaning of the said Act and as such the provisions of U.P. Act No. 13 of 1972 are applicable. The other limb of the argument is that even if, it is held that the property in dispute is not a "building" then the suit giving rise to the present revision was not maintainable before the Judge Small Causes Court. Elaborating the argument, he submits that suit for ejectment in respect of the property in dispute then shall not be maintainable in view of the amended Section 15 as amended in the State of U.P. With regard to the last submission, his reply is that the building in question is an old construction and was assessed to tax with effect from 1st April, 1980 as is evident from Exhibit A-6.
Except the aforestated submissions, none of the counsel for the parties raised any other point for determination in the revision.
Considered the respective submissions of the learned counsel for the parties and perused the record.
Taking the first point first, it may be noted that the case of plaintiff from the very beginning is that it is the gher which was let out to the defendant tenant on a monthly rent of Rs.900/- per month. The plaintiff used to issue rent receipts. It has been so pleaded in the plaint. In evidence, the plaintiff has filed receipt book containing bunch of receipts issued to the tenants. Paper No. 29-Ka is the rent receipt for period of 1st January, 1987 to 30th November, 1987. The said rent receipt is Exhibit-1. It contains thumb impression of the tenant. A dispute was raised as to whether the said receipt contain his thumb impression or not. On the request of the plaintiff, the court permitted to produce the expert opinion with regard to the disputed thumb impression on the said receipt. The Trial Judge has found that the report of the expert has been filed though the same has not been proved by calling him in evidence. However, the unproved report is also not of much assistance as the expert opined that the disputed thumb impression is not fit for comparison due to blurredness. The trial judge after noticing the said aspect of the case has examined the oral evidence led by the parties in the light of the municipal assessments on record. He weighed the evidence of the respective parties and reached to the conclusion that the rate of rent of the accommodation in suit is Rs.100/- per month and not Rs.900/- per month. The said finding is based on analysis of the evidence led by the parties. Learned counsel for the applicant could not demonstrate that the aforesaid finding is in any manner perverse and not plausible one. Although, to some extent he is justified in making his comment that the trial judge has not given due weight to the receipt book. The observation in the body of the judgment with regard to the objection filed by the plaintiff before the Municipal Board dated 2nd March, 1991 is incorrect. In the objection dated 2nd March, 1991, the sons of plaintiff have mentioned only this much that the tax sought to be levied is excessive and there is no justification to enhance it as number of shops are lying vacant and there is no enhancement of rent in respect of shops. The observation in the judgment that "rent mentioned is excessive and exorbitant" is incorrect. The said objection dated 2nd March, 1991 was read by me and I find that the said objection has been misconstrued and misread by the trial court.
But taking into consideration the entire facts and circumstances of the case, the finding recorded by the trial court on issue no. 1 cannot be set aside in view of the restricted jurisdiction of this Court while exercising power under Section 25 of the Provincial Small Causes Court Act.
Now, the second point relating to the question as to whether the property in question is "a building" within the meaning of Section 3(i) of U.P. Act No. 13 of 1972 or not is taken up. It may be noted that U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 referred as U.P. Act No. 13 of 1972 is an Act to provide in the interest of general public, for the regulation of letting and rent of, and the eviction of tenants from, certain classes of buildings situated in urban areas, and for matters connected therewith. The provisions of the said Act are applicable to certain classes of building. In other words, if the property in dispute is not a building, evidently it will not be governed by the said Act. The word "building" has been defined under Section 3(i) of the Act which 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 fitting and fixtures affixed to such building for the more beneficial enjoyment thereof;
The roofed structure is essential to term a construction as a building within the meaning of the aforesaid definition of building. The facts of the case in hand are not much in dispute. A bare perusal of the plaint would show that what was let out to the defendant has been described as gher facing north consisting of one Kothari covered by tin shed, having three trees and water supply connection. In para-4A of the plaint, the dimensions of the gher (subject matter of the letting) has been mentioned as 52 feet x 42 feet, wherein a temporary kothari having dimensions around 8 feet x 8 feet exists. It has been further pleaded that there is no other roofed structure and the said kothari in the gher is appurtenant to the vacant land. The said gher was let out for the purposes of repairing the tractors and the tractors could be repaired on a vacant piece of land. The kothari is situate at north-western corner of land. It was pleaded that the accommodation in question is not a building.
In the additional written statement, in reply to para-4A of the plaint which was introduced through amendment, the tenant has not denied the factual aspect of the case as has been set out in para-4A of the plaint. In reply, only this much has been said that the plea that provisions of U.P. Act No. 13 of 1972 are not applicable, is incorrect. The disputed property is roofed structure which is a building and is in existence since the beginning of the tenancy which amounts accommodation.
Significantly, the allegations in the plaint that it is an open piece of land consisting of 52 feet x 42 feet having a small kothari 8 feet x 8 feet, which is appurtenant to the open piece of land and was let out for the purposes of repairing the tractors, which requires sufficient space, has neither been denied nor controverted in additional written statement. The question now boils down as to whether in this fact situation, the accommodation in question can be treated as "a building" or not.
Learned counsel for the applicant has placed reliance upon a Judgment of this Court in Narayan Chand Das v. Panna Lal and another, 1969 AWR 52, a case under the provisions of old Act, namely U.P. (Temporary) Control of Rent & Eviction Act, 1947 wherein it has been held that where a landlord while letting out an open piece of land to tenant permitted the tenant to construct tin-shed etc., and tenant was allowed to take away the materials of the constructions at the time when he left the land, land does not become an accommodation within the meaning of the Act. The said decision was given with reference to definition of "accommodation" under the said Act of 1947. There is a marked difference in between the definitions of accommodation as given under old Act of 1947 and "building" as defined in the new Act in as much as concept of roofed structure was not there earlier.
In Nanhe Ghosi v. Firozul Hassan Khan and others, 1978 ALJ, 1290, again a case under the old Act, this Court with regard to definition of "accommodation" as defined under the old Act has held that before protection of the provisions of U.P. Act No. 3 of 1947 or thereafter of U.P. Act No. 13 of 1972 can be claimed by a tenant having regard to definition of the word "accommodation" or "building", it must be established that the land is appurtenant to any building or part of a building or residential or non-residential roofed structure. The observations made in para-10 of the report that mere presence of a building or a roofed structure on the plot of land would not enable the tenant to claim protection of the provisions of these Acts to some extent are helpful to the landlord herein.
In Syed Ahmad Ali and others v. Shafiq Ahmad, 90 ARC 1991 (2), this Court considered the definition of "building" as defined in U.P. Act No. 13 of 1972. The tenant herein was dealer of ballis and he took the land for commercial purpose for storing the ballis. On small portion of land, a temporary shed was constructed. In this factual matrix, this Court has held as follows:
"A building which could be brought under the purview of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 must be residential or non-residential and a roofed structure which would include land including any garden, garage and out houses appurtenant to such building. The defendant is doing his business on a vast piece of land and on a small portion of it if he has constructed a shed also, but that would not change the nature of the land into a building so as to attract the provisions of the U.P. Act No. 13 of 1972. The First Appellate Court has been influenced by the terms and conditions of the unregistered deed and, therefore, it has held the disputed property as building within the meaning of the U.P. Act No. 13 of 1972. After excluding the unregistered lease deed as in admissible, the other evidence which is on record would positively suggest that the property in question is not a building within the meaning of the U.P. Act No. 13 of 1972 but is a land let out for commercial purpose. That being so, a suit under the Transfer of Property Act could be brought against the defendant-respondent by the plaintiffs."
In Subedeen and Ors. V. Satyawati Devi & Anr., 1996 (28) ALR 415, open land along with tin shed and kothari respectively for tethering animals and for storing fodder was let out. The question as to whether the said letting is in respect of a building, and the provisions of U.P. Act No. 13 of 1972 were attracted or not, arose. This Court has held that what was let out to the appellants therein was land termed as "Adda Land" for carrying on the business of sale and purchase of milk animals by them, therefore, provisions of U.P. Act No. 13 of 1972 would not be attracted. It repelled argument that the provisions of the said Act would be attracted because on the land there existed tin shed and kothari respectively for tethering those animals and for keeping Bhoosa (fodder). Noticeably, the Court has relied upon the Apex Court judgment in Prabha Manufacturing Industrial Co-operative society v. Banwan Lal, AIR 1989, SC 1101. In the case of Prabha Manufacturing Industrial Co-operative Society (supra), it has been laid down that if open land with a small shed on it was let out it will be letting of land and not the building. The relevant paragraph is reproduced below:
"16. The High Court has gone one step further. It has indicated that, even if one accepted the best case of the appellant Society - that there was a shed on the land even at the time of the original allotment - such plot-cum-shed cannot convert the land into 'premises' within the meaning of the Rent Control Act. This was the prima facie view of the Court as it did not hear arguments from the parties on this point. Counsel canvassed this point before us also. Sri Mehta, referring to Corporation of City of Victoria v. Bishop of Vancouver Island, AIR 1921 PC 240, Karnani Properties Ltd. v. Augustine, 1957 SCR 20: (AIR 1957 SC 309); State of Bombay v. Venkat Rao Krishna Rao Gujar, (1963) 1 SCR 418: (AIR 1966 SC 991) and Ghanshiam Das v. Devi Prasad, (1966) 3 SCR 875: (AIR 1966 SC 1998) contended that the definition of premises envisages a building and that, as per these decisions, anything that is built on land, even if it is only a kacha shed, would be a building and this brings the property in question within the purview of the Act. On .the other hand Dr. Ghosh sought, by analogy of the principle of the decisions in Uttam Chand v. S. H. Lalwani, AIR 1965 SC 716: S. M. Gopalkrishna Chetty v. Ganeshan, (1976) 1 SCR 273 : (AIR 1975 SC 1750) and Morarji Goculdas Deoji Trust v. Madhav Vithal Kudwa. (1983) 1 Rent CJ 195 : (AIR 1983 Bom 68), to contend that what the Rent Control Act contemplates is a building let out qua building, may be with appurtenant land, but not a land let out for use as land merely because there may be a small building on it. The relevant question, he says, is what was the dominant subject-matter of the allotment - the land or the building and this is a question which can only be decided in the respondent's favour. We do not consider it necessary to embark on a discussion of this aspect as we are satisfied, for the reasons already discussed, that the property allotted to the Society in respect of which it was a tenant, initially under the Custodian and later under the plaintiffs, was only a plot of land and that the plaintiffs were justified in attempting to recover possession thereof by a suit for possession in the Civil Court."
Similarly, in the case of Koti Saroj Anamma & Anr. V. Jonnalagada Malleswara Rao, AIR 1995 SC 1401, the Apex Court has held as follows:
"7. Looking to the evidence, it is clear that the shed, which has a zinc sheet roof, was erected only to protect the Saw mill machinery. What was leased out to the respondent was substantially the Saw mill machinery for the purpose of carrying on timber/Saw mill business. The shed was merely erected to shelter the machinery. The dominant purpose of the lease was to lease out the Saw mill machinery. In order that the lease should be covered by the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, the lease should be of a building as defined in Section 2(iii). It should, therefore, be a lease of any house or a hut or a part of a house or a hut let for residential or non-residential purposes. It would include gardens, grounds, garages and outhouses appurtenant to such a house or a hut. In the present case, however, the lease is not of any house or a hut or part of a house or a hut. The lease is of a Saw mill machinery which is covered by a zinc sheet shed. The dominant purpose of the lease is to lease out the machinery. The shed is only an adjunct. It is also pointed out that a covering over the machinery in the shape of a structure consisting of zinc sheets supported on poles can hardly be called a house or even a hut. In any case, looking to the dominant purpose of the lease, the two courts below have rightly come to the conclusion that the lease is not covered by the provisions of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act. 1960."
The proposition of law as laid down by the Apex Court, in my considered view, clinches the issue in favour of the plaintiff landlord. The pleadings in this regard, para-4A of the plaint in particular has been mentioned in the earlier part of the judgment. The tenant D.W.-1 in his deposition has stated that he is carrying on business of repairing tractors and took the property in question for the said purpose. Further he is repairing the tractors on open piece of land. He states that the kothari is being used for the purpose of keeping tools. Thus, it is admitted case of the defendant tenant that he took the property in question for the purposes of repairing the tractors and keeping the tools in the kothari. It has also been noticed herein that the tin shed/kothari is in existence on one of the corners of the land in question having small dimensions 8 feet x 8 feet while the total dimension of the land in question is 52 feet x 42 feet.
As against above, learned counsel for the opposite party referred Ram Dularey v. D.D. Jain and others, 1965 ALR 722, a case under the old Act with reference to the question as to whether jhopari with thatched roof is accommodation or not. Jhopari has been held to be a building. The said decision is distinguishable on fact as the question involved herein i.e. letting of a vacant piece of land having small roofed structure is not there. Obviously, if the roofed structure has been let out, it will be an accommodation. The said case is not much assistance to the defendant opposite party. Similarly Om Prakash v. the III Additional District Judge, Meerut and other, 1981 ARC 278, is also distinguishable on fact as it was with respect to a temporary wooden "Khoka" kept on the land in suit. It was held that the building may also include within its scope any structure which may not be a permanent structure. This case is also not of much help and is distinguishable on facts. For the same reason, Anwar Ahmad v. IVth Additional District Judge, Saharanpur and others, ARC 1981 P. 654, is also distinguishable. Lastly, reference was made to the Apex Court Judgment in Harish Chandra and another vs. Mohd. Ismail and others, ARC 1990(2) 357, in this case a piece of ground over which there is a tin shed was let out. The Apex Court has remanded the matter to find out whether the said construction was put up by the landlord or tenant first. There is no discussion on the issue presently involved in the case on hand and is therefore, not of much assistance.
The trial court proceeded on the footing, that there is kothari and tin shed having roofed structure and an open space it will be a building. It failed to notice the distinction where the vast piece of land having a small kothari on small portion of it is subject matter of lease and where a lease is of a kothari with small piece of open land is let out. In the case on hand, the letting is of land to enable the defendant tenant who is mechanic to carry on his business of repairing the tractors in an open space and the kothari on a small piece of land is being used for the purpose of storing the tools etc. Upshot of the above discussion is that it is a case of letting of an open piece of land having a tin shed towards a corner of the land and letting took place in respect of land for the purposes of repairing the tractors and kothari was meant for purposes of storing the tools. The dominant purpose of letting is vacant piece of land and as such the provisions of U.P. Act No. 13 of 1972 will not be applicable, the existence of kothari on a small part of it notwithstanding. In other words, it is a case of letting land and not of letting kothari.
Having held as above, the objection raised by the tenant that the suit giving rise to the present revision would not be maintainable before the Judge Small Causes Court requires consideration. It could not be disputed by the learned counsel for the applicant that Judge, Small Causes Court has jurisdiction to entertain the suit for ejectment of tenant from a building. In other words, Section 15 of the Provincial Small Causes Court Act permits the filing of suit for ejectment of a tenant from building. The suit giving rise to the present revision, could not have been entertained by the Judge Small Causes Court.
The above argument of the tenant opposite party in this regard has got some substance but that is not end of the matter. A lessor or landlord has got unrestricted right to evict lessee or tenant under the Transfer of Property Act, by serving a simple notice of termination, under Section 106 of the aforesaid Act. The said notice has been give. In the absence of applicability of State Rent Control Act a suit by a landlord for eviction of monthly tenant will lie before the regular Civil Court after determining the tenancy by giving a notice as envisaged under Section 106 of the Transfer of Property Act. There being no protection to such a tenant, a tenant is under legal obligation to vacate the disputed accommodation within 30 days from the date of the receipt of the notice In the case on hand, there is no dispute between the parties that the tenancy of the defendant tenant has been terminated by giving a valid notice as required under Section 106 of the Transfer of Property Act. Neither it was pleaded nor any issue was struck questioning the legality and validity of the notice given under Section 106 of the Transfer of Property Act or its service upon the defendant tenant. No objection that the suit is not cognizable by Judge Small Causes Court was taken either in the written statement or in evidence. Contention of the defendant tenant is that the question of jurisdiction can be permitted to be raised in revision here.
The courts are meant for delivering justice to the parties when justice is pitted against technicalities may be relating to the jurisdiction, the justice shall prevail. The question of jurisdiction having not been raised by the tenant shall be deemed to have been given up. About 12 years have already gone and by returning the plaint for its presentation before the regular Court of civil side will not in any manner advance the cause of justice except that the tenant will get some more time to vacate the leased property. This obviously will not be justice. It was neither argued nor any attempt was made to show that any prejudice has been caused to the defendant tenant by trial of the suit by Judge Small Causes Court or he has any other defence. All the defences which were open to him have been put forward here. In my considered view, ordering the return of plaint for presenting it before the regular Court of civil side would amount injustice to both the parties. No useful purpose is going to be served by restoring the above process. The time and money spent will go waste.
In view of the aforesaid discussions, the objection raised by learned counsel for the defendant tenant with regard to jurisdiction is therefore rejected and overruled with the aforesaid and it is held that open piece of land with kothari to which the said Act does not apply, was let out.
Now I take up the last point regarding the date of construction of the building i.e. gher. The case of the plaintiff as set out in para-4 of the plaint is that the provisions of U.P. Act No. 13 of 1972 are not applicable as the gher in question was assessed to tax for the first time with effect from 1st April, 1986. It was numbered as 274/12 for the years 1986-91.
In reply, the defendant tenant has pleaded that the provisions of U.P. Act No. 13 of 1972 are applicable. The property in dispute is in the shape of gher and there is a passage to approach to the said gher and on two sides of the passage, the shops are in existence, which were constructed earlier. All the shops were raised before the year 1991-92 and all the shops are more than 10 years in the year 1991-92 vide para-21 of the written statement.
In para-22, the construction of disputed accommodation in the year 1985-86 has been denied and it has been pleaded that even if, no tax was levied then it is a case of evasion of tax or it is a case of not levying of tax by Nagar Palika for their some fault. The accommodation in question is old construction. It may be noted that earlier it was not subjected to tax from 1st April, 1986 and as such by levying tax with effect from 1st April, 1986, no advantage can be obtained by the plaintiff while assessing tax with effect from 1st April, 1986 vide para 23 of the written statement.
In para-25, it has been stated that at the time of letting, no tax was levied on the property and as such the date of first letting shall be the date of construction, but nowhere either in the written statement or in evidence, the date of letting has been disclosed specifically.
Having noticed the pleadings of the parties, before examining the evidence led by the parties, it is necessary to notice the relevant provisions as contained in Explanation to Section 2(2) of the Act which defines the date of construction as follows:
"the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported 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."
The aforesaid provision has been subject matter of consideration by the Apex Court on various occasions. The judgment of the Apex court in AIR 1982 SC 1230 (2) Om Prakash Gupta v. Dig Vijendrapal Gupta, is the leading case wherein the Apex Court had an occasion to interpret the aforesaid provision after making its analysis. The relevant portion is reproduced below:
"6. As a second limb to the first argument, it is contended that the building will be deemed to have been constructed, on the date of occupation on 16th of June, 1067 and not on the (late of the first assessment, and that if this be so, the appellant would be entitled to the benefit of S. 39 of the Act on the date when the revision came to be decided by the High Court on 23rd of March, 1976. In order to appreciate this argument it will be expedient to refer to Explanation I to sub-sec. (2) of S. 2 which has already been extracted. Explanation I provides that the building shall be deemed to have been completed on the date on. which completion thereof is reported to or otherwise recorded by the local authorities having jurisdiction, and in 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.............. for the first time. A perusal of Explanation I makes it abundantly clear that the date of 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 the construction or no assessment thereof. If there is an assessment, as in the present case it is, it will be the date of the first assessment which will be deemed to be the date of completion of the construction, and in that view of the matter the building had not become more than ten years' old on the date when the revision came to be decided by the High Court, and therefore there was no question of giving the benefit of S. 39 of the Act to the appellant."
Thus, the Apex Court has divided the buildings in two categories; one category consists of the buildings which are subject to municipal tax and in second category other buildings fall. In the case of a building subject to assessment of municipal tax it has been laid down that for the purposes of determination the date of construction of a building, it is the date of the first assessment which is the relevant date for reckoning the exemption period of 10 to 40 years as the case may be.
Here the building is subject to assessment, now the question remains as to what is the date of the first assessment of the building in question. The plaintiff landlord has placed reliance upon Exbhit-A-7 (paper no. 37-C) which according to him is the first assessment of the property in dispute. In this document the name of various tenants including that of the defendant tenant is recorded against the different shop numbers. As against the entry of name of the defendant tenant Mistri Udal son of Raghubir, Shop No. 274/12 has been mentioned. At the top of this document it is mentioned that the assessment is for the period of 1st April, 1986 to 31st March, 1992. The landlord submits that this is first assessment of the property in question.
On the other hand, the defendant tenant submits that Exhibit-A-6 (paper no. 36-C) which is also assessment list for the period of 1979 to year 1986 is the first assessment. The said document shows that two ghers were subject to assessment with effect from 1st April, 1980. The record shows that as soon as the said document was filed, the landlord filed an application dated 26th March, 1997 being paper No. 78-C on the allegations that the certified copy (the aforesaid document) filed by the defendant is not true and correct copy but the defendant tenant by manipulation has obtained incorrect copy of the assessment. Permission was sought and was granted to file another true certified copy of the assessment for the aforesaid period of 1st April 1979 to 31st March, 1986 by the trial court. In spite of the objection by the defendant, the trial court vide order dated 25th July, 1997 allowed the application 78-C and the document was ordered to be taken on record. The said document has been marked as Exhibit-8. This shows that the property in dispute was assessed to tax at Rs.360/- per annum which as a result of decision in appeal has been exempted with effect from 1st September, 1980. As against the said document, the defendant tenant has not filed any document to dispute the correctness of the said document. It follows that the property in dispute was exempted from tax from 1st September, 1980. When the aforesaid document was confronted, learned counsel for the defendant submits only this much that the building was subjected to tax earlier and it was subsequently exempted with effect from 1st September, 1980. Having referred the aforesaid three municipal extracts, relied upon by the parties, the date of first assessment of the building is to be ascertained.
There are two aspects of the case. First aspect is that initially as is recorded in assessment list relating to year 1979 to year 1986 only gher is on record. It is also in evidence that the plaintiff landlord submitted a map for raising construction of the shops. The certified copy of the said map is on record. Permission to raise the construction was granted. It was also brought on record. These documents are Exhibit-6, 7 & Paper No. 29-Ka. The shops were raised which were subjected to tax for first time with effect from 1st April, 1986. When the shops were raised and assessed to tax, the gher in dispute was also assessed to tax with effect from 1st April, 1986. That is the reason that earlier the gher which was exempted from subject to tax was assessed on annual letting value of Rs.1200/- per annum. The above conclusion may also be reached from another angle. Earlier it was only a gher which was exempted from the municipal assessment as is evident from Exhibit-8 and after construction of the shops, was assessed to municipal tax with effect from 1st April, 1986 which is evident from the document Exhibit-A-7. In this document, name of the occupants of various shops numbers 424 to 437 have been recorded one shop was in occupation of the landlord and another was lying vacant as mentioned in document itself. Sub-clause (c) of Explanation 1 to Section 2 of the Act which is reproduced below:
"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."
Sub-clause (c) of Explanation 1 to Section 2 of the Act as reproduced above, clearly provides that where substantial addition is made to an existing building that the existing building becomes only a minor part thereof, the existing building shall be deemed to be constructed on the date of completion of the said addition.
Even assuming for the sake of argument as was contended by the defendant tenant that the gher in question was assessed to tax at Rs.360/- per annum earlier in year 1980, notwithstanding that the said assessment was set aside and building was exempted subsequently, in view of the fact that 13 shops were constructed and the total annual letting value of these shops for the purposes of municipal tax comes to Rs.9720/- per annum, also leads to the conclusion that the date of first construction of the building in question is 1st April, 1986.
The other aspect of the case is that here almost it is admitted in the pleadings by the defendant tenant that the property in dispute was not assessed to tax earlier to 1st April, 1986. Reference can be made to paras-21 to 25. In these paragraphs the tenant has come out that the plaintiff landlord cannot drive any advantage if the building was not subjected to assessment earlier before the year 1985-86 as it will be a case of inaction on the part of the municipal authorities.
In the oral deposition, the defendant in his cross-examination could not give reply about the year in which he took the shop on rent. He has stated that immediately after construction of gher he took it on rent wherein he is carrying on business of repairing of the tractors. Gher was old around 20 years at time of letting. He could not dare to say that the gher was not subjected to the municipal tax on 1st April, 1986. The statement in examination-in-chief that he had taken the gher in the year 1978 is obviously incorrect in as much as there is no such pleading in the written statement nor his name is recorded as tenant in municipal record.
Looked from any angle, the irresistible conclusion is that the gher in question was subjected to municipal tax with effect from 1st April, 1986 for the first time and as such it shall be exempt from the purview of the provisions of U.P. Act No. 13 of 1972 for a period of 40 years. The suit was filed in the year 1992 within the exemption period and as such the provisions of U.P. Act No. 13 of 1972 were not applicable on the date of institution of the suit to the building in question.
The finding recorded by the court below with regard to the date of construction is based on misreading of the documentary evidence on record. It misinterpreted the definition of building as contained in the said Act. A reading of the judgment of the trial court would show that it under issue no. 3 has reproduced paragraphs from the rulings relied upon by the parties and immediately jumped to the conclusion without making an analysis of the relevant facts. The trial court has disposed of this vital point for determination in a slipshod manner. It was under legal obligation to discuss the documentary evidence with some detail. It is the defendant tenant who also filed the assessment list for the period of 1st April, 1986 to 31st March, 1991 being paper no. 37-C, Exhibit-7. Its another certified copy copy was filed by the plaintiff and is marked as Exhibit-5.
The trial court has failed to consider Exhibit-8 which goes to the root of the matter that gher was exempted from municipal tax, was assessed to tax for the first time with effect from 1st April, 1986.
There is one more defect in judgment and decree of the trial court. The trial court has extended the benefit of Section 20 sub-clause (4) of U.P. Act No. 13 of 1972 while deciding issue no. 2 in favour of the defendant tenant relieving him from the decree of ejectment as the tenant has deposited the arrears of rent etc. on the first date of hearing. Having held so, it should have passed a decree for the recovery of aforesaid amount in favour of the plaintiff instead of dismissing the suit in toto. In view of the findings that the provisions of U.P. Act No. 13 of 1972 are not applicable, the benefit extended to the tenant under Section 20 sub-clause 4 of the Act also goes ipso facto.
In my considered view, the judgment and decree of the court below is not in accordance with law and the same is therefore, set aside.
In view of the above discussions, the findings recorded by the trial court with regard to rate of rent on issue no. 1 is confirmed, but at the same time the findings on other issues are, hereby, set aside by holding that the property in dispute is not a building within the meaning of Section 2(i) of the Act and even if, it is a building, the provisions of U.P. Act No. 13 of 1972 are not applicable as its date of construction is 1st April, 1986 and the suit was filed in the year 1992 and therefore, it is exempted from the operation of U.P. Act No. 13 of 1972, under Section 2(2) of the said Act.
In the result, the judgment and decree of the trial court is modified by providing that the suit for ejectment of the defendant tenant from the premises in question is decreed along with recovery of arrears of rent, damages together with pendente lite and future at the rate of Rs.100/- per month with proportionate costs.
The defendant-tenant is granted time to vacate the disputed accommodation upto 31st December, 2010 subject to the following conditions:
(1) The defendant-tenant shall deposit the entire arrears of rents and damages as indicated above after adjusting the amount, if any, already deposited for the period upto 31 December, 2010 within a period of one month from today before trial court.
(2) Within the aforesaid period, the defendant-tenant shall file an undertaking on affidavit before the trial court that he will vacate the disputed accommodation on or before 31st December, 2010 and shall hand over its peaceful vacant possession to the plaintiff landlord without creating any third party interest.
In case of default in compliance of the conditions stipulated above, the time granted shall stand vacated automatically. If the defendant-tenant fails to vacate the disputed accommodation on or before 31-12-2010, he shall be liable to pay the damages @ Rs. 2000/- per month for the period March, 2011 and thereafter @ Rs.5000/- till the date of actual delivery of possession.
In view of the above discussion, the present revision succeeds and is allowed as indicated above with proportionate costs.
(Prakash Krishna, J) Date: 28.10.2010 Mukesh/