1. This is defendant's revision application under S. 25 of the Provincial Small Cause Courts Act from the judgment and decree dated 23-11-1992 passed by III Addl. District Judge, Lucknow, decreeing the plaintiff-respondent's claim for decree for arrears of rent and ejectment against the defendant-revisionist, in the S.C.C Suit No. 28 of 1987 (Ganga Narain Kapoor v. Punjab National Bank).
2. The facts of the case, in brief, are that the plaintiff-opposite party filed the suit for a decree for recovery of rent and ejectment with the allegations to the effect that the plaintiff is the owner and landlord of the house in dispute, in a part of which Hindustan Commercial Bank had been in occupation as a tenant on monthly rental of Rs. 2,550/-. The plaintiff further alleged that the building in dispute has been a new construction and it was for the first time assessed to the municipal tax by Nagar Mahapalika w.e.f April 1, 1979 and, as such, the plaintiff alleged that the building in dispute or to say that the accommodation in dispute was not subject to the provisions of U.P Act No. XIII of 1972 and that the provisions of U.P Act No. XIII of 1972 did not apply thereto. The plaintiff further alleged that with the passage of time Hindustan Commercial Bank Ltd. i.e defendant-Bank merged into the Punjab National Bank and the Punjab National Bank steped into the shoes of Hindustan Commercial Bank, in other words, the old entity of Hindustan Commercial Bank merged into Punjab National Bank and thus Punjab National Bank the defendant has become, as well as occupies and continues to occupy the building in dispute, as a tenant of the plaintiff. The plaintiff further alleged that as plaintiff required the said building for his own user and so plaintiff gave a notice dated 2-12-87 to the defendant demanding the arrears of rent as well as the determining the tenancy on the expiry of the period of the notice of detemination of lease and required the defendant to hand-over the vacant possession of the suit property, after vacating the same, to the plaintiff.
3. The defendant according to plaintiff's case in spite of the notice of termination of tenancy did neither pay the arrears of rent of damages nor did he vacate the accommodation or the building in question and so there did arise the need to file the suit for the reliefs, as mentioned above.
4. The defendant-revisionist filed a written statement and denied the plaint allegations. According to defence version of the case U.P Act No. XIII of 1972 did apply to the building in dispute. The defendant denied that the said portion of the building in which Hindustan Commercial Bank, Kanpur had been a tenant was a newly constructed building. It also denied that the said portion was for the first time assessed by Nagarmahapalika, Lucknow w.e.f April 1, 1979. The defendant further denied the plaint allegations to the effect that the building in dispute was not subject to the application of the provisions of the Act.
5. The defendant admitted the allegations of paragraph six of the plaint but he added that the rent for the month of January, 1987 was already tendered to the plaintiff long before 21-2-87 the date on which notice was issued on behalf of the plaintiff. He further alleged that the notice dated 21-2-87 was wholly misconceived as according to defendant the tenancy in his favour was a fixed term tenancy for the period ending on 26th September, 1988 and so according to the defendant there was no question of failure on the part of the defendant to comply with the said notice. The defendant alleged that there did not arise any necessity or cause of action for the plaintiff to file the suit.
6. The defendant further alleged that rate of damage could not exceed the agreed and correct rate of rent under (sic)
7. The defendant further pleaded that under the terms of the lease dated 26-9-1978 executed by the plaintiff and signed by both the plaintiff and defendant, the lease was granted initially for a fixed period of 5 years from the date of the lease dated 26-9-1978 and the lessee was at liberty and had option to renew the same for a further period of 5 years after the expiry of the first 5 years period on the same terms and conditions as of the original lease.
8. The defendant also took the plea that the suit was not maintainable as according to him, the plaintiff was himself guilty of having committed breach of the conditions of a transaction of loan whereunder:—
“A sum of Rs. 15,000/- a loan was advanced interest free and further at the concessional rate of interest a sum of Rs. 85,000/- was advanced and both advances were for the construction of the premises in dispute.”
9. The defendant-appellant took the plea that the entire sum of Rs. 1 lac had been advanced and the same was to be secured by Equitable Mortgage of the demised premises. The defendant alleged that plaintiff had promised and assured the defendant that the said lease would continue for at least the further period of 5 years on its renewal on or after expiry of the first term of five years and had the plaintiff not assured like that, the defendant would never have advanced or agreed to pay such huge sums to the plaintiff.
10. In para 22 of the writ petition, the defendant alleged that the notice of termination of tenancy referred to above in para 6 of the plaint was wholly void and invalid in law.
11. The defendant alleged that the Act No. XIII of 1972 did apply to the premises in suit and the suit was not maintainable as there are no allegations of grounds or facts as is required to be made in a suit under S. 20 of U.P Act No. XIII of 1972 and so the defendant asserted that the suit was liable to be dismissed.
12. That in support of the respective cases, parties produced documentary as well as oral evidence. In support of his case the plaintiff examined himself as P.W 1. On behalf of the defendant bank, D.W 1 H.C Awasthi as well as D.W 2 Suresh Chandra Mehrotra and D.W 3 Prem Nath were examined.
13. The learned trial Court i.e III Additional District Judge after considering the evidence on record oral and documentary held that the evidence on record proves that the portion of the building in the tenancy or to say that the tenanted portion of the building was a new construction of 1979 which had further first time being assessed in 1979 and soon the date of the suit was filed, the provisions of U.P Act No. XIII of 1972 did not apply to the accommodation in dispute. It is to be noted that suit was filed on 31-3-1987.
14. The learned trial Court further held that as the provisions of U.P Act No. XIII of 1972 did not apply to the building in dispute. It was open to the plaintiff to terminate the tenancy of the defendant and the evidence on record proves that the plaintiff has given the notice of termination of tenancy which was fully legal valid and, as such, the defendant tenancy had been validly determined. The learned Court below held that in this view of the matter, plaintiff has been entitled to get the decree for eviction against the tenant as well as he is entitled to get damages from the date of suit till the date, the actual possession is handed over to the plaintiff @ Rs. 2,500/- per month.
15. That having felt aggrieved from the judgment and decree of the learned trial Court i.e III Addl. District Judge, Lucknow acting as J.S.C.C, Lucknow, the plaintiff preferred the revision under S. 25 of the Provincial Small Cause Courts' Act No. IX of 1987 in this Hon'ble Court.
16. I have heard Shri Satish Chandra Misra, Advocate assisted by Shri S.S.D Verma, Advocate, learned counsel for the revisionist-applicant and Shri P.M Mathur, learned Senior Advocate appearing on behalf of the opposite-party at great length.
17. It has been contended on behalf of the learned counsel for the revisionist that no witness by the name of Shri H.L Gupta had been examined by or on behalf of the defendant-revisionist in the trial Court though his name was mentioned in the list of witness by the defendant and the trial Court while referring to the statement of D.W 1 has mentioned that H.L Gupta has been examined as D.W 1 and so the proceeding and decision are bad in law. Learned Counsel for the revisionist, no doubt, has admitted that Shri K.C Awasthi was examined as D.W 1 which from the learned Counsel for the plaintiff did not deny. Learned Counsel for the plaintiff states that D.W 1 was K.C Awasthi who had been examined on behalf of the defendant as D.W 1 but in the list of witness, name of Shri H.L Gupta was also mentioned and so it might be that due to clerical mistake the trial Court referred Shri K.C Awasthi, D.W 1 as H.G Gupta that did not materially affect the decision of the case.
18. Shri Misra and Sri Verma also asserted that on the record of the case there are no copy of the statement of either H.C Awasthi or H.L Gupta as D.W 1 but it is no denying fact that H.C Awasthi had been examined. On being enquired whether the learned Counsel for the parties or to say that the parties either the parties had taken the copy of the statements of DW 1 who admittedly is H.C Awasthi, the certified copy of the statement, or, at least carbon copy thereof which is prepared and recorded along with the recording of the statements in original and is also supplied to parties on payment of charges of Rs. 2/- each, the learned Counsel for both the parties stated that the copies had been taken by their respective client, and the said copy or the photostat copy of the said statement as available with them has been filed. The carbon copy which was available in original has been filed by the learned Counsel for the defendant-revisionist and it contains examination-in-chief but whatever was stated in the cross-examination that portion was not available with him as it was missing while the learned Counsel for the plaintiff-opposite parties filed a complete copy of that statement along with affidavit which contained deposition made in statement in chief or say examination-in-chief as well as in course of cross-examination and the said copies, filed along with affidavit by parties have been taken on record after having recorded the statements of the respective learned Counsel as well. The said copies have been made part of the record of this case for the purpose of the disposal and decision of the revision and the learned counsel for the parties argued their respective cases further on the basis of those copies of deposition of D.W 1 H.C Awasthi.
19. The learned Counsel, for the revisionist, namely, Sri Misra and Sri Verma contended that the finding of the court below that the building in dispute was for the first time assessed in 1979 was not correct. Learned Counsel for the revisionist further submitted that the building known as house No. 34 bearing municipal No. 313/36-A Khunkhunji Road, Chowk, Lucknow was assessed to municipal taxation in the year 1976 and even earlier and, therefore, the said building or construction even if taken to have been of 1976 then on the date of the suit the said building subject to the provisions of the U.P Act No. XIII of 1972 and, as such, the suit was covered and control by provisions of S. 20 of the Act.
20. Learned Counsel further contended that the finding arrived by the court below in this regard is erroneous in law and did affect the jurisdiction of the Court because if the Court's below came to the wrong conclusion that the building in dispute was a 1979 construction and not 1976 construction then by taking a wrong decision on the question of application of the provisions of the Act to the building as well as relating to bar against the filing of the suit under S. 20 then the Court below illegally usurbed the jurisdiction not vested.
21. Learned Counsel for the revisionist further contended that the learned Court below erred in taking the view that lease-deed relied was a document which required to be registered and as the same was not registered the same was inadmissible and then it acted unjudiciously and illegally in considering the same for other purpose in spite of the fact that the same unregistered. Learned Counsel for the revisionist further submitted that even if the lease deed was unregistered one, and it could not have been looked and even then otherwise on the basis of the principle of law under S. 53-A of the Transfer of Property Act, the revisionist tenant acquired the same rights of fixed term tenant and, therefore, the tenancy could not be determined nor the suit for ejectment could be filed against the tenant-revisionist.
22. Shri Misra further emphasised and contended that the notice of determination of tenancy was illegal and bad and suit was filed on the basis thereof was not maintainable. On behalf of the revisionist Shri Verma emphasised that though the lease deed was not registered it has wrongly been held inadmissible instead according to Shri Verma it ought to have been held that irrespective of lease deed being unregistered, it was inadmissible and binding and that the learned lower Court ought to have held that revisionist defendant acquired the same rights, by virtue of S. 53 of Transfer of Property Act, of a tenant for fixed term which he would have acquired otherwise had lease deed being registered.
23. Learned Counsel for the revisionist made a reference to the following cases, namely, Maneklal Mansukh Bhai v. Harmusji Jamshedji reported in (AIR 1950 SC 1), Nathu Lal v. Phool Chandra ((1969) 3 SCC 120 : AIR 1970 SC 546) and to the decision of this Court in B.P Sinha… v. Som Nath…., reported in (AIR 1971 All 297) with which I deal with at proper stage.
24. On behalf of plaintiff-opposite party Sri P.N Mathur, learned Senior Advocate contended that as regards the finding on the question of the date of construction of building in dispute, the learned court below did not commit any error of law in holding that the portion of the house in the tenancy of the defendant-bank was constructed in 1979 and was 1979 construction and this finding is based on consideration of documentary and oral evidence on record and this does not suffer from any error of law.
25. Sri Mathur invited my attention to certain documents and the allegations of fact made the parties i.e made in plaint, as contained in paragraph 3 of the plaint, as well as the allegations of paragraphs 1 and 2, 16 and 18 of the written statement. Shri Mathur also invited my attention to paragraph 21-A of the replication filed by the plaintiff. He also invited my attention to paper No. C-17 i.e notice of assessment dated 8-2-1979 to show that after the construction of the new building as well additional assessment had been made and the same was being made effective w.e.f April 1, 1979 and submitted that the portion which was leased out to the bank had been constructed afresh with improvement and there was new construction for which necessary sanction had been obtained, and thereafter the said portion was constructed and later on the same was assessed for the first time to taxation by Nagarmahapalika in 1979. Shri Mathur contended that the said finding about the date of new construction is neither erroneous nor its suffers from any error of law. It is in accordance with the principle of law as contained in provisions of Section 2-A(2) and Explanation 1 thereto of the Act). Shri P.N Mathur further contended that the lease in favour of defendant revisionist could not be deemed or considered to be fixed term lease in absence of registration, at the most, the defendant's portion is of a tenant from month to month.
26. Sri Mathur submitted that section 107 of the Transfer of Property Act provides that a lease for fixed term of more than a year or fixing yearly rent can be entered into by a registered documents' only. The use of expression ‘only’ in section 107 of Transfer of Property Act with reference to certain lease and mode prescribed for making of those leases is indicative of legislative intent that only mode for entering into lease of fixed term is entering of tenancy contract by a registered documents and no fixed term lease for a period of more than one year can be entered into otherwise than by registered deed. Shri Mathur contended that in accordance with the well settled principle of law that when a specific mode of doing certain thing is prescribed then that act or thing has got to be done in that manner alone and other modes are closed, so fixed term tenancy could not be entered into otherwise than by a registered instruments and if the document is not registered one, the natural consequence that will follow will be that the tenant who has entered into possession by and under such contract of tenancy not to be deemed to be a trespasser but his possession or enjoyment will be that of a tenant on a monthly rent and not a fixed term tenant. Shri Mathur further contended that Section 53-A of Transfer of Property Act primarily is not applicable to the case in such a manner as to entitle the petitioner to become a fixed term tenant for term of five years or ten years because the use of expression ‘only’ in the section 107 of the Transfer of Property Act prescribes the only method in which fixed term tenancy, for a period of one year or more is to be entered into i.e by a registered deed lease and other modes are closed. Therefore, under Section 53-A of the Transfer of Property Act, the petitioner is entitled to claim only the right of the tenant as law permits. In such cases where the tenancy or the contract of tenancy can be entered into otherwise than by registered deed, namely, the lease is to be presumed to be month to month and person obtaining possession such contract to be tenant from month to month.
27. Sri P.N Mathur submitted that lease was registrable under provisions of 107 of the Transfer of Property Act and, therefore, there is no question of benefit of Section 49 of Registration Act being available or being given to the revisionist. Shri Mathur disputed the contention of the learned Counsel for the revisionist-applicant that notice which is basis of the suit is illegal or bad. He submitted that provisions of Act No. XIII of 1972 did not apply to the building in dispute on the date the suit was filed. The suit was maintainable and the general principle of law of Transfer or Property Act did cover the case and so contract of tenancy could be terminated and had been validity terminated by the plaintiff-opposite-party and that the suit had validly been filed. He contended that the notice was perfectly legal and valid and no infirmity in the notice could be pointed out by the learned counsel for the revisionist.
28. I have applied my mind and have given due consideration to the respective contentions of the learned counsel for the parties.
29. Before I proceed to deal with respective contention it will be just and proper on my part to refer to the provisions of Section 25 of the Provincial Small Causes Court's Act.
30. That according to provisions of Section 25 of the Small Causes Courts Act, the jurisdiction of this Court is confined and subjected by the condition that this Court has to satisfy itself if the decree or order made in a case decided by a Small Causes Courts or to say District Judge exercising power over Small Causes Courts was made according to law or not and for the purpose of satisfying itself that the decree or order was made according to law it may call for the case and may pass such order with respect thereto as it deems fit.
31. Thus the revisional power is confined to and exercisable in respect of cases where the decree or order can be termed as “not to be in accordance with law” but if the superior Court comes to the conclusions that the decree or order has been made by the Small Causes Courts or the Courts exercising the jurisdiction of Small Causes, according to law, there is no power of revision or jurisdiction to interfere in exercise of revisional jurisdiction by this Court under Section 25 of the Provincial Small Causes Courts Act and ordinarily, therefore, the finding of fact, recorded by the court below cannot be interfered with by the High Court or by District Judge's Courts while execising the powers under Section 25 of the Provincial Small Causes Courts Act. It may be stated that Section 25 of the said Act was amended in his application to the state of Uttar Pradesh from time to time. The first amendment substituted the District Judge or High Court and so the District Judge became invested with the revisional power instead the High Court. A further amendment made in 1972 added a proviso which declares that, in relation to any case decided by the District Judge or Additional District Judge exercising the jurisdiction of Judge of Small Cause Courts, the power of revision under Section 25 will vest in the High Court. Section 25 as amended reads as under:
“25. Revision of decrees and orders of Small Causes—
The District Judge, for the purpose of satisfying himself that a decree or order made in any case decided by a Court or Small Causes was according to law may of his own motion, or on the application of an aggrieved party made with in thirty days from the date of such decree or order, call for the case and pass such order with respect thereto as he thinks fit.
Provided that in relation to any case decided by a District Judge or Additional District Judge exercising the jurisdiction of a Judge of Small Causes, the power or revision under this Section shall vest in the High Court.”
32. There is no doubt that if it is proved or shown that the decree has been passed by a Court having no jurisdiction, the decree can be said to be one not in accordance with law. There is no doubt as laid down in Joy Chand Lal v. Kamalaksha, (AIR 1949 PC 239) and in the case of Chaudhari Jagdish Prasad v. Ganga Prasad Chaturvedi reported in (AIR 1959 SC 492) and Rama Aver v. Sunderesa Poumapoonder reported in (AIR 1966 SC 1431), in the context of revisional jurisdiction of the High Court under Section 115 of the Civil Procedure Code where the revisional powers of the High Court are confined to error of jurisdiction only i.e excess of jurisdiction or to say exercise of jurisdiction not vested, with refusal to exercise of jurisdiction vested or usurpation of jurisdiction by a Court on the basis of an erroneous decision arrived at by it in respect of a jurisdictional fact or the question touching jurisdiction or refusal to exercise of jurisdiction vested on the ground of erroneous decision on questions of jurisdictional fact or law as well as, acting of Court illegally or with material irregularity are all covered within the expression jurisdictional error and a decree passed by a Court below after having committed jurisdictional error can be termed not to have been passed in accordance with law, for the purpose of Section 25 Small Causes Courts Act, but the scope of power under Section 25 of the Provincial Small Causes Courts Act is not as limited or restricted one as is revisional jurisdiction of the High Court under Section 115 of the Civil Procedure Code. The scope of jurisdiction under Section 25 of the Provincial Small Causes Courts Act is wider than the revisional jurisdiction of the High Court under Section 115 of the C.P.C
33. The question that has been pressed in this revision in the very begining by the learned counsel for the revision 1st — applicant, namely, Shri S.C Misra that the court below has recorded an erroneous finding in respect of the question relating to it i.e date and period of construction of the building in dispute and the question of application of the Act to the building in dispute and to the suit. That such a question is one in the nature of a question of jurisdiction or touching jurisdiction and the said finding in respect of such a question cannot be termed, as rightly contended by Shri S.C Misra, to be pure finding of fact. It is a finding on a question of jurisdictional fact in the sense that on the basis of this finding as to whether the building in dispute had been constructed on a date on the basis of which if it is found that the building had completed ten years of its construction on or before the date of the suit then in that case it can well be argued that the Act did apply to the building in dispute and, therefore, in view of the provisions of Section 20(1) of the U.P Act No. XIII of 1972, a suit for eviction of a lessee or the tenant did not lie until and unless at least one of the grounds mentioned in sub-section (2) of section 20 of the U.P Act No. XIII of 1972 is alleged and proved to exist on the date of the suit. The absence of any of such grounds will have the effect in such case, of imposing the bar against eviction of tenant as well as against maintainability of the suit for eviction as indicated by Section 20(1) of the Act and further of creating bar against the jurisdiction of the Court to entertain the suit for ejectment against the tenant or lessee. The decision on the question whether the building in dispute had been a construction of more than ten years on the date of the suit is determination of the jurisdictional question i.e whether on account of application of the Act, right to evict and to file a suit against the tenant under the general law in case the reply to such question is in affirmative, the Court will have no jurisdiction to entertain such suit for landlord would have a right to file such a suit, except in the specified conditions, as noted above. But if the finding on this question is negative, the right of the lessor to file a suit for eviction against the lessee under the general law of landlord and tenant will not stand debarred and it will be exercisable at any moment only after determining the lease or on the determining the lease in accordance with law and the jurisdiction of the Court to entertain suit would not stand debarred or taken away by Section 20(1) of U.P Act No. XIII of 1972 and, as such, the decision on this question is a decision on a question touching jurisdiction or it may be said on a question of jurisdictional fact, upon which the jurisdiction of the court depends. When I take this view I find support from the law laid down by their Lordships of the Privy Council Joy Chand Lal v. Sri Kamalakasha, (AIR 1949 P.C 239) and in the case of Chaudhari Jagdish Prasad v. Ganga Prasad Chaurvedi, reported in (AIR 1959 SC 492) and also from the decision of the Supreme Court Rama Iyer v. Sundereshe (AIR 1966 SC 1431) referred to above.
34. In cases where the jurisdictional fact is involved it is open to the revisional Court to review and reassess the evidence as well as laid down by their Lordships of Supreme Court Ram Sunderesa's case (AIR 1966 SC 1431) (Supra). Their Lordships in para 4 of the judgment in Ram Sunderasa Case has observed as under:—
“The decision of the subordinate court on all questions of law and fact not touching jurisdiction is final and ever erroneous such a decision may be it is not revisable.
………On the other hand, if by an erroneous decision on a question of fact or law touching its jurisdiction e.g on a preliminary fact upon the existence on which its jurisdiction depends, the subordinate Court assumes jurisdiction not vested in it by law or fails to exercise a jurisdiction so vested its decision is not final and is subject to review by the High Court in its revisional jurisdiction under Sub-sections ‘a’ and ‘b’ of Section 115.”
35. These observations of Supreme Court, no doubt, lead to the inference that it is not open to High Court under Section 115 C.P.C to review the decision of subordinate Court or any question of fact or law not touching jurisdiction but findings in jurisdictional fact are not final instead (it) can be reviewed by High Court in its revisional jurisdiction.
36. Reference at this juncture may also be made to the decision of this Court in Gurwar Sahai v. Union of India 1980 Luck LJ 263.
37. In that context it is open to this court in exercise of his revisional jurisdiction to review the finding on the question touching the question of jursidiction involved and the decision recorded by Court below on a question of jurisdictional fact whereupon the court below exercised its jurisdiction to decree the suit of the plaintiff for eviction because if this court otherwise takes the view then it may be said that the decree is without jurisdiction and a decision thus arrived either in excess of jurisdiction or by refusal to exercise jurisdiction not vested can be said to be one not in accordance with law.
38. I proceed to examine the question regarding the deed or construction of the building in dispute and question on application of the provisions of this Act at the time, the suit had been filed. The learned District Judge has recorded the finding in this regard that the construction in dispute let out to the defendant-respondent is of the year 1979 and date of construction thereof the Court to be held on 1-4-1979.
39. That a perusal of the plaint allegations will show that according to plaintiff, the portion in dispute and in the tenancy of the defendant is a newly constructed building which was for the first time issued by Nagar Mahapalika w.e.f 1-4-79 and according to plaintiff, the Act No. XIII of 1972 did not apply.
40. In the written statement, the defendant admitted allegation of paras 1 and 2 vide in paragraph 3 of the written statement. It has been stated i.e paragraph 3 of the written statement which reads as under:—
“It is denied that the portion which was in the tenancy of the Hindustan Commercial Bank Ltd., Kanpur is a newly constructed building. It is denied that the said portion was for the first time assessed by the Nagar Mahapalika Lucknow w.e.f 1-4-1979. It is also denied that the building is beyond the ambit of the U.P Act No. XIII of 1972. The plaintiff ought to have given the date on which the completion of the construction of the building was reported or recorded either in the Lucknow Nagar Mahapalika record or in the records of the Lucknow Development Authority.”
41. In paragraph 15 of the written statement, defendant has stated as under:
“That under the terms of the lease dated 26-9-1978 executed by the plaintiff and signed by both the plaintiff and the deft, the lease was granted initially for a fixed period of 5 years from the date of the lease dated 26-9-1978 and the lessee was at liberty and had the option to renew the same for a period of 5 years after expiry of the first 5 years period on the same terms and conditions on which the lease was initially granted and the lease after its first renewal was liable to further renewal on the terms and conditions to be mutually settled at the time of subsequent renewal.
42. In paragraph 16 of the written statement the defendant has stated as under:
“That under the terms of the said lease the lessee was required to advance interest free loan of an amount of Rs. 15,000/- as advance rent for constitution of a strong room and this advance was to be adjusted by appropriating the monthly rent in full by the defendant, and the lessee was also required to advance up to Rs. 85,000/- to the Lessor bearing interest at concessional rate of 14% per annum in place of 18% per annum which was the ordinary rate of interest for construction of the demised premises. The entire amount so advanced was to be secured by Equitable Mortgage of the demised premises. The lessee was also required to pay the monthly rent by the 5th day of the following month and the month was from the first to the last day of each English Calendar month.”
43. In paragraph 17-A of the written statement which reads as under:
“That as per agreed lease terms the construction of the Hall with requisite height for the bank big windows and the construction of the counter in the back portion in place of the front in order to enable the bank to carry on its work in day light in case of failure of Electricity and constitution of the demised premises and a big strong room and mezzanine floor by the plaintiff as per specifications given by Bank with a view to meet the future increasing requirements were all done by the plaintiff to make the said premises fit for use of the Bank keeping in view the bank's requirements”.
44. It is also just and proper to make a reference to paragraph 20-A of the written statement which reads as under:
“That the plaintiff is also barred under Section 53A of the Transfer of Property Act from filing a suit for ejectment before the expiry of the period ending with 26-9-1988.”
45. Thus a perusal of the pleadings of the parties per se shows that plaintiff had taken a loan of Rs. 85,000/- according to defendant's pleadings in paragraph 21-A, the various constructions were and had been made keeping in view of the requirements of the bank sometimes in or after 1978 and according to plaintiffs case before 1-4-79 w.e.f which date i.e 1-4-79, the portion in dispute and in the tenancy of the defendant's bank had been subjected to assessment for the first time after the construction. According to plaintiff's case, the plaintiff had submitted building plan for making of the constructions on the said plot in February 1979 and the same has been sanctioned vide order dated 14/17-7-1975 and the building was constructed in two phases. This additional construction which was let out to the bank was made according to plaintiffs building plan sanctioned by order dated 19/21-8-1978 by Prescribed Authority as a separate unit and according to plaintiff's pleading of the plaintiff opposite party this construction was completed in 1979 and assessment was made for the first time assessing the rental value to be Rs. 31,200/-. Section 2 of U.P Act No. XIII of 1972, in particular, sub-section thereof provides that subject to provisions of sub-section (2) nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed. Provisos 1 and 2 to sub-section (2) are not material for the purpose. Explanation 1 to sub-section (2) provides that the construction of a building shall be deemed to have been completed on the date on which—
a) The completion thereof is reported to or otherwise recorded by the local authorities having jurisdiction.
b) And 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 dates.
c) And in the absence of any such report, record or assessment, the date on which it is actually occupied (not including the occupation merely for the purpose of surprising the construction or guarding the building under construction) was for the first time a third proviso to sub-section 2 further provides that there may be different dates of completion of construction in respect of different parts of building which are either designed as separate units or occupied separately by landlord and one or more or different tenants.
46. Sub-section (2) coupled with explanation and proviso to Explanation I-A leads to the following conclusion.
a) That a building is exempt from the application of the provision of the Act, subject to those exceptional provision as are mentioned in sub-section 2 for a period often years from the date on which its construction is completed.
b) That there may be different dates of completion of construction of different portions of building which are either designed as separate unit or which are occupied separately by either landlord and tenant themselves or by tenants.
c) That the date of completion of the building or part of the building is the date as has been provided and defined in the explanation and not otherwise i.e either the date on which completion of construction is either reported or/and recorded by the local authorities and in case of building which is subject to assessment the date of completion of the building or part of the building shall be deemed to be the date on which the first assessment of that building comes into effect.
47. Lastly, in the absence of any such report, record or assessment as referred to above, the date of completion of construction shall be deemed to be the date on which it is for the first time occupied excluding the occupation thereof for the purpose of supervising the construction or guarding of the building and the construction. According to case of the parties, building in question is subject to assessment of municipal taxes and, therefore, for the purpose of our case, the date of construction will be on which the first assessment of the building in the tenancy of the revisionist had been given affect to. In other words, the date on which the first assessment of the building subject matter of dispute was made and given effect to after the construction thereof shall be deemed to be the date of its completion. Keeping this view I have to examine the evidence and if the assessment record is available then that will be material for the purpose apart from any corroborative evidence in this regard.
48. The plaintiff has filed the sanction map issued by (sic) because Pradhikaran, Lucknow dated 14-8-1978 and C-18 on the record of the trial Court. The plaintiff has also filed the assessment notice of the building 313/331, Khunkhunji road Chawk, Lucknow and the reassessment of taxes after the construction of new and additional building in that house or Bhaven indicating that the old valuation of Rs. 2,880/- is being changed or increased from Rs. 2,880 to Rs. 31,200/- on account of Nav Nirman Bhavan i.e new construction and addition and it provides that this assessment after the new construction and addition of part to the building is being made assessing the annual value to be Rs. 31,200/- and assessing the tax to Rs. 7,800/- in all i.e house tax, water tax and Jal Nistaran tax and self assessment was being made effective w.e.f 1-4-1979.
49. Apart from filing these documents plaintiff had examined himself as PW 1 and has deposed with this regard. He has stated that the portion of the building in the tenancy of the Punjab National Bank is a new construction and has been assessed to taxation w.e.f 1-4-79. The plaintiff has stated that he has received a notice from Nagarmahapalika making assessment thereof that portion and that has been filed in the case as paper No. C-17. He has also stated in the cross-examination that “Yah Bank ke kabje wali Premises Bank Ke Liya Haal Banwaya Tha. Bank Ke Alawa teen Khand Me Building Bani Hai. Yeh Kai Parts me Banati Rahi……… Jo Mane Hall Banaya He Woh Paechey Jo Khali Jamin Pari Thi Usi Per Banaya Hai Isi Ka Proposed Naksha Paper No. C-18 Hai.”
50. DW 1 H.C Awasthi has deposed that he did not know that the house or building in dispute had been constructed prior to its being taken on lease by the bank.
51. Learned Counsel for the defendant had invited my attention to certified copy of 1976 tax assessment with regard to building 313/36-A, Khunkhunji road which as assessment list shows that building which has been assessed had been self occupied its natural rental value was assessed to Rs. 420/- per year. On the basis of this document, learned counsel for the appellant-revisionist submitted that the building i.e house No. 34 bearing No. 313/36, A, had been assessed in 1976 or easrlier so he contended that the building could be deemed to have been constructed either before or in the year 1976.
52. The arguments of the learned counsel for the revisionist, namely, Shri S.C Misra ignores a very important aspect of the matter that a building may contain separate and distinct tenament of portion and the Act also takes note of it that there may be different dates of completion of different parts or tenament of the building either constructed as separate unit or occupied by different persons may be the landlord and the tenant or may be different tenant occupying the same, so when the question is to be determined with reference to the tenement relating to a particular tenant then it has to be considered and taken note of and to be decided if the two tenements have been constructed as different tenements itself or can be deemed to have been constructed on different tenements itself and if so what is the date of completion of the construction of the building or part of the building which is subject matter of dispute between landlord and tenant and not the entire building itself, containing different tenements and the different and separate accommodation. The documents referred to by the learned counsel for the revisionist, namely Sri S.C Misra i.e tax assessment register copy that per se shows that the portion or part that has been assessed in 1976 and that has been in existence in 1976 has been one which has been in whole and exclusive use and possession of the landlord himself and none else. Paper No. C-18, the sanction plan, a copy of which has been filed on the record of the court below, which has been sanctioned in the month of August, 1978, and the said building according to plaintiff had been constructed in 1978 and had been assessed w.e.f 1-4-79 vide statement of PW-1 coupled with the documentry evidence contained in form of Paper No. C-17 which per se show that on account of new construction and addition in the building or house No. 313/36-A, the assessment of the building including the portion newly construct was being assessed to the (sic) value of Rs. 31,200/- in place of the earlier valuation which was Rs. 2,880/-. The notice indicates that the assessment had been made after the assessing new construction or addition made in the building and it leads to that new construction that were addition to and in house No. 313/36-A, Khunkhunji road were new construction and were being assessed for the first time w.e.f 1-4-79 and the total assessment of entire building i.e old and new construction was being assessed at the annual value of Rs. 31,200/- i.e its valuation had increased from Rs. 2,800/- to 31,200/-, as such, these documents sufficient to prove that the construction in dispute were not the construction of 1976 but the construction which were completed or which can be deemed to have been completed under the law w.e.f from the date, the first assessment of that part of that building was being given effect thereto i.e 1-4-79 and in this view of the matter I do'nt find error of fact or any error of law on the part of the trial Court in coming to the conclusion that the building in dispute i.e building subject matter of tenancy of the defendant was a new construction, the construction of which had been completed on 1-4-79 and so the Act did not apply to the building in dispute. The finding to the above effect recorded by the court below in my opinion does not suffer from any error of law or of fact and thus I come to the conclusion that the court below rightly held that the Act did not apply to the building in question.
53. The second point raised by Sri S.C Misra, learned counsel for the revisionist-applicant has been to the effect that the suit for ejectment against the applicant was not maintainable and the tenancy of the tenant-revisionist could not be determinated as it was the fixed term tenancy for five years and that the same could be extended for a period of five years more. He further submitted that the learned court below illegally held that the deed of lease to be inadmissible and in holding the tenancy to be month to month on one hand and on the other in taking note of the agreement for the purpose of rate of rent to Shri Misra also tried to assail the validity of the notice of the determination of his argument lease but repeated the same ground in support of that tenancy was not validly terminated. As regards the nature of tenancy whether it was the fixed term tenancy or not. Shri Misra submitted that even if the lease was not registered but on account of defendant-applicant being in possession of the property in dispute in terms of that lease which is said to be illegal on account of non-registration, the same can be treated as an agreement to lease and, therefore, when the defendant entered into possession thereof under such an agreement then the defendant-tenant i.e revisionist-applicant is entitled to claim the protection under section 53-A and to assert that his tenancy i.e fixed term tenancy and that continuance of application in possession after the expiry of five years resulted in emergence or existence of fixed term tenancy for a further term of five years which had not expired on or by the date, the notice dated 21-2-87 had been given under Section 106 of the Transfer of Property Act, Sri Misra in support of his argument made a reference to the following decision, namely, Manek Lal Mansukh Bhai v. Harmuszi Jamanedji (AIR 1050 SC 1) and Nathu Lal v. Phool Chand ((1969) 3 SCC 120 : AIR 1970 SC 546) and B.P Sinha… v. Som Nath…., reported in (AIR 1971 All 297).
54. That as regards, relationship of plaintiff and defendant and the contract of tenancy as contained in the pleadings referred to above that in paras 1 and 2 which have been admitted the written statement. The pleadings per se show that the plaintiff has been the owner and landlord of House No. 34 (Municipal No. 313/36A, Khunkhunji Road, Chowk, Lucknow) and that Hindustan Commercial Bank, Kanpur was the plaintiffs tenant in respect of a portion on the part of ground-floor of the aforesaid building on a monthly rent of Rs. 2,550/- exclusive of water tax and sewarage charges. It is also admitted as allegations of paragraph 4 of the plaint are admitted by the paragraph 4 of the written statement filed by the defendant that on the amalgamation of Hindustan Commercial Bank, Lucknow in Punjab National Bank the Punjab National Bank became the plaintiffs tenant in respect of the premises which was previously in the tenancy of Hindustan Commercial Bank and this being the admitted position, there was no dispute between the parties as regards relationship of landlord and tenant between plaintiff-opposite-party and the defendant-revisionist appellant and further there is no dispute regarding the fact that Punjab National Bank steped into shoes of Hindustan Commercial Bank and became the plaintiff-tenant in the accommodation in dispute on the amalgamation of Hindustan Commercial Bank with the Punjab National Bank. The rate of rent as alleged in view of the allegation of paragraph 2 having been admitted without any exception.
55. Section 105 of the T.P Act defines the lease as the transfer of right to enjoy the property for consideration by transferor to transferee, and the transferor of right to enjoy the property is called lessor while the persons to whom it is transferred and given i.e the transferee of such right is called lessee and the consideration fixed i.e paid from time to time is called the rental. The admitted position in this regard is very clear from the allegation contained in the pleadings which are binding on the parties i.e plaintiff is the landlord lessor the defendant Punjab National Bank and prior to it Hindustan Commercial Bank have been lessees. Hindustan Commercial Bank having merged into Punjab National Bank, the Punjab National Bank stepped into the shoes of Hindustan Commercial Bank and became the tenant and subject to the liability of paying the monthly rental of Rs. 2,550/- which was admittedly the monthly rental for the accommodation in dispute as admitted by defendant in pleadings vide in paragraphs 1, 2 and 4 of the plaint and paragraphs 1, 2 and 4 of the written statement and there was no dispute about the relationship between the landlord and tenant. Thus there is no question and liability to prove the relationship of landlord and tenant on account of the said facts having been admitted. The evidence is required only to prove a fact, which is asserted by a party and has been denied by another and that casts burden of proof on party asserting a fact but where certain state of affairs of fact is per se admitted and is not disputed one. No question of burden of proof of that fact does arise.
56. As regards, the nature of tenancy whether it was a fixed term tenancy or a tenancy different from or otherwise than fixed term tenancy. The question may arise regarding the burden of proof and the burden of proof lies on that party to prove the said fact i.e the nature of tenancy to be fixed term, which party asserts i.e if the defendant as in the present case has asserted the lease to be fixed term lease vide paragraph 15 of the written statement, the burden did lie on him to prove that case because in absence thereof the provisions of Section 106 of the Transfer of Property Act will operate as regards the nature of tenancy. It will be relevant to make a reference to the provisions of Section 106 of the Transfer of Property Act as amended by U.P Act No. 24 of 1954 reads as under:
“Section 106—
Duration of Certain lease in absence of written contract or local usage—
“In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, in the part of either lessor or lessee, by six months' notice, and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by thirty days' notice.
57. Every notice under this Section must be in writing signed by or on behalf of the person giving it and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants, at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.”
58. section 107 of the Transfer of Property Act provides the mode which the contract of tenancy can be entered into i.e in which the lease can be made. Section 107 of the T.P Act reads as under:—
“Section 107 — Leases how made—
A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.
All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.
Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee.
Provided that the State Government may, from time to time, by notification in the Official Gazette, direct that leases of immovable property, other than leases from year to year, or for any term exceeding one year, or resering a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.”
59. A perusal of Section 106 of the Transfer of Property Act per se shows that it leads a rule of evidence as regards, the duration of certain lease and according to letter and spirit of Section 106 of the T.P Act in the absence of any contract, local law or usage to the contrary a lease of immovable property for any purpose other than the agriculture or manufacturing purpose, is to be deemed to be lease from month to month, but so far as lease for immovable property taken for the agricultural purpose of manufacturing purpose, these leases are unless there is anything to the contrary in the contract or local law or the usage to be deemed to the leased from year to year. This is a rule of evidence i.e all leases of immovable properties are to be deemed in the eye of law to be month to month and, if any, person alleges or claims to the contrary i.e in other words, if any person, alleges or as asserts lease on a particularly lease to be a fixed term lease or to be a yearly lease he has to prove the same by legal, valid and reliable evidence. Keeping in view the provisions of section 107 of the Transfer of Property Act as well as the provisionso of Registration Act and the Evidence Act. So in the present case, a burden did lie on the defendant to prove allegations of fact made by him in the written statement to the effect that fixed term lease was for five years and the period of lease could be extended at the option (sic) and wish of the leasee.
60. Section 107 of the T.P Act provides that lease for a fixed term or for a term of more than a year or for year to year or reserving yearly run can be made only by a registered instrument while all other leases of immovable property can be made either by a registered instrument or by oral agreement complied with delivery of possession. Thus provisions of Section 107 of the T.P Act by use of expression ‘only’ indicates that legislature or the Parliament intended to prescribe the specific mode for making of the fixed term lease for more than one year or reserving yearly rent. It is well settled principle of law as laid down by Supreme Court in the case of State of U.P v. Singhepa Singh, reported in (AIR 1964 SC 358) as well as by Privi Council in the case of Nazir Ahamad v. King-Emperor, reported in (AIR 1936 PC 253 (2)) when the law prescribes a certain mode or specific mode of or for doing a thing or certain mode of exercising certain power of authority or right or for performing certain Act then that Act or thing has got to be done in that manner alone and not otherwise. Other modes in respect thereof are necessarily and by necessary implication taken to have been forbidden and closed. Apart from this, general principles, the further use of expression “only” after the expression can be made “and before expression” by a registered instrument indicates the legislative intent that legislature has intended that fixed term lease for a period of more than a year or a lease from year to year or reserving the yearly rent is to be and can be made in no other manner than by entering into the contract of tenancy by a registered lease deed. This being the legal position there can be no lease for fixed term for a period more than a year or the like, if the same has been entered into orally or by some deed which is not registered one, and in those cases, the presumption about the duration of lease under Section 106, T.P Act will apply. See Allenbur Engineer Pvt. Ltd. v. Ram Krishna Dalmia (1973) 1 SCC 7 : AIR 1973 SC 425 i.e 1973 (1) SCC 7.
61. Section 53-A per se provides a shield for protection to a person in pursuance of an agreement between transferor and transferee i.e agreement to transfer immovable property and the transferee who had already entered into possession in pursuance of that agreement as performed his part of contract and is always willing to perform his part of contract is entitled to seek the protection of the Unbrella of Section 53-A of the Transfer of Property Act but there is a doubt so far as cases of lease or agreement to lease is concerned because in the cases of a agreement to lease the agreement is to transfer the right to enjoy the property. It is not, in fact, transfer of ownership along with the corpus of immovable property concerned, while in the case of sale, sale is defined not a transfer of right to enjoy the property but it means transfer of movable or immovable property itself for consideration. The transfer of immovable property carrias with itself the idea of transfer of ownership of the property as well as the possession thereof including right to enjoy the property as well as a right to transfer the same by sale or mortgage etc. This being a point of distinction there is grave doubt, in my opinion that Section 53-A Transfer of Property Act is of any application to the case as it does not provide any such thing as presumption as to the nature of the tenancy whether it will be month to month or year to year or fixed term, so, even if Section 53-A may be said to apply to the case of a lease or agreement to lease. The said section is not of any avail to the tenancy of tenant-revisionist.
62. Thus considered if Section 53-A can be applied to the case of a person of entering into possession in pursuance of agreement to lease but the same has either not been registered or executed in accordance with law than the benefit that the tenant will be entitled to avail, will be that his possession or occupation or enjoyment of the property shall not be deemed to be illegal or unauthorised under law. It will be deemed to be lawful and permissive but as regards duration of the tenancy, the presumption under Section 106 of the T.P Act will apply i.e if tenancy is for a purpose other than agricultural or manufacturing, the tenancy shall be deemed to be month to month. Lease of accommodation for the running of Bank cannot be said to be one for manufacturing purposes in view of the principle of law laid down in Allenbury Engineers Pvt. Ltd. v. Ram Krishna Dalmia ((1973) 1 SCC 7 : AIR 1973 SC 425 (427, 428), in this regard under Section 106 of the Transfer of Property Act. Thus tenancy can be deemed to be only one from month to month.
63. The case of Manek Lal Hansukh Bhai v. Hormuszi Jamshedji (AIR 1950 SC 1), Nathu Lal v. Phool Chand ((1969) 3 SCC 120 : AIR 1970 SC 546) and B.P Sinha… v. Som Nath…., reported in (AIR 1971 All 297) are not that authorities for the proposition that by virtue of application of doctrine of part performance in the matter of an agreement to lease or an unregistered lease or lease enter into in breach of requirement or Section 107 Transfer of Property Act, the transferse of right to enjoy the immovable property not only acquires an umbrella to protect his possession and user of immovable property under Section 53-A of the Transfer of Property Act but he further acquires the status of a fixed term tenant or tenant with the term of more than a year. These are simply the authorities for proposition that possession of such lessee or transferee of such in property remain that of tenant not one of a trespasser and the defendant is entitled to retain his possession inspite of an absence the registered deed in an action to eject such person or lessee on the ground that his possession is not backed by a registered deed of lease as such these cases do not help the revisionist tenant.
64. Thus considered, the lease in the present case is monthly lease in absence of registration of the deed and the deed in the present case was rightly held to have not been admissible on account of non-registration to determine the tenor or its nature. The lease being month to month in view of the provisions of Section 106 of the Transfer of Property Act could validly be terminated by a notice of 30 days on either side in view of amended Section 106 of the T.P Act, amended in the sense of amendment made therein by the State of Uttar Pradesh.
65. Thus considered there remains one point to be decided whether the notice in question is illegal.
66. I have considered the notice dated 21-2-1979 material portion of the notice is being quoted (hereinafter)—
“The plaintiff sent notice dated 21-2-1987 to the defendant calling upon him to pay the rent of the premises in his tenancy with effect from 1-1-87 together with water tax and sewer tax due against you within a month of the receipt of the said notice and to vacate the premises in his tenancy on the expiry of 30 days next after the receipt of the said notice. Thereafter your tenancy shall stand determined.”
67. This above mention portion and expression used therein have clearly and expressly indicated the intention of the landlord that he does not want to keep the defendant as tenant and that he determines the tenancy and he has called upon the tenant to hand over the vacant possession within a period of 30 days from the date of the receipt of this notice and further specifically stated and provided in that notice that on the expiry of a period of 30 days the tenancy shall also stand determined and in case, the tenant does not hand over the vacant possession, the suit will be filed for the recovery of possession and damages @ Rs. 700/- per day. The notice is very clear of the intention of the landlord that the landlord determining the lease and the lease shall stand determined on the expiry of period of 30 days from the date of the service of the notice and that the tenant has to hand over the vacant possession of the accommodation in dispute to the plaintiff, otherwise plaintiff will be compelled to file the suit and claim damages @ Rs. 700/- per day. This notice, in my opinion, does not suffer from any illegality or legal defect. The notice is per se legal and valid. No other point has been pressed on behalf of the revisionist-applicant.
68. The revision, thus considered, is without force and has got no merit. It is hereby dismissed with costs throughout. The interim order of stay, if any, is vacated but defendant is granted six months time to handover the vacant possession of the accommodation in dispute to the plaintiff, provided the defendant furnishes an undertaking in writing in the form of affidavit to the effect that within this period of six months provided under the judgment and decree, defendant will hand over actual possession as well as he shall pay or deposit in avcance the damages for use and occupation of the accommodation for this period @ Rs. 2,550/- per month in advance. The undertaking shall be furnished within a period of two weeks from today in this Hon'ble Court. In case of failure to furnish undertaking and to deposit in advance the sums or demages, it will be open to the plaintiff to proceed with the execution of decree but if the undertaking is furnished as mentioned above, the execution of decree shall not take place till the expiry of the period of six months from this, the date of delivery of this judgment.
69. Revision dismissed.
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