Allahabad High Court
Radha Krishna Ji Esthapit Mandir vs Ganesh Prasad Mishra & Another on 18 November, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on 06.11.2019 Delivered on 18.11.2019 Court No. - 8 Case :- SECOND APPEAL No. - 256 of 2001 Appellant :- Radha Krishna Ji Esthapit Mandir Respondent :- Ganesh Prasad Mishra & Another Counsel for Appellant :- S.K. Tiwari,Aakash Prasad,Amibav Singh,Arun Saxena,S.P. Shukla Hon'ble Virendra Kumar-II,J.
1. The present second appeal has been preferred assailing impugned judgment and decree dated 27.03.2001 delivered by the Court of Additional District Judge, III, Sitapur in Civil Appeal No. 6 of 2001: Ganesh Prasad Mishra and others Vs. Radha Krishna Ji Mandir, Kamlapur. The first appellate Court has set aside judgment and decree dated 19.12.2000 delivered by the Court of Civil Judge (Junior Division), Biswan Sitapur in Civil Suit No. 17 of 1994 (Radha Krishnaji Virajman Mandir, Kamlapur Vs. Ganesh Prasad Master and another. Learned trial Court vide judgment dated 19.12.2000 had decreed the suit of the plaintiff/appellant.
2. The present appeal admitted on the substantial question of law, Serial No. E, F, G, H formulated in the grounds of the appeal vide order dated 03.07.2001 passed by this Court. The relevant substantial questions of law are as follows:
"E. Whether the provision of U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act 1972 is applicable in the present case ?
F. Whether the notice dated 3.8.1993 fulfills the requirement of Section 106 of Transfer of Property Act ?
G. Whether in the present case notice under Section 106 Transfer of Property Act was required ?
H. Whether the judgment of the lower appellate court is vitiated as the lease in favour of the Defendant/ respondents was compulsorily registerable under Section 17 of the Registration Act as it was for a period of more than year ?"
3. It is contended by the appellant that appellant/plaintiff filed Civil Suit for eviction and damage for wrongful use and occupation (mesne profits), being owner of the disputed shop. The defendant no.1/respondent Ganesh Prasad Mishra was tenant at the rate of Rs. 7 per month. Defendant no.2/respondent is son of defendant no.1 and he is running the business of Cycles in the disputed shop. The defendants have no authority to make alteration or addition in the shop. They had dug the shop from inside and changed its original shape. The plaintiff/appellant tried to restrain them, from altering the position and the shape of the shop. The respondent/defendants did not pay heed to the objection raised by the plaintiff. Therefore, their tenancy was terminated through registered notice and appellant asked them to vacate the shop on 31.08.1993 and to pay the amount of damages. The respondents did not comply the notice, therefore, Suit was instituted in the Court of Civil Judge (Junior Division). Therefore, relief has been sought that judgment and decree passed by appellate Court be set aside and judgment and decree dated 19.12.2000 passed by the Court of Civil Judge (Junior Division), Biswan Sitapur in Civil Suit No. 17/94 be restored and affirmed.
4. The factual matrix of the present case giving rise to institution of present second appeal is that plaintiff Radha Krishna Ji Temple Esthapit, Kamlapur, situated in Mazra Maholi, Pargana Peer Nagar, Tahsil Sidhauli, District Sitapur, is a registered trust and disputed shop belongs to the plaintiff and vested in it. The respondent no.1 Ganesh Prasad Mishra is tenant of the disputed shop at the rate of Rs. 7 per month and defendant no.2/respondent no.2 is his son and doing business of Cycles in this shop. The respondents dug the shop and broke the roof and constructed staircase and other illegal constructions without consent and permission of the plaintiff/appellant and altered the original shape and position of the shop. Therefore, tenancy of the respondent no.1 was terminated through registered notice and he was asked to vacate the shop by 31.08.1993.
5. Per contra respondents contended in their written statement that notice under Section 106 Transfer of Property Act was not given to them. They made constructions in the disputed shop by taking oral permission from representative Cashier Late Sri Ramendra Kumar Saxena of plaintiff/appellant after paying amount of Rs. 5000/-, who was looking after affairs of the temple and its other properties. It is further contended that they constructed two storied house and renovated disputed shop with consent and permission of Cashier Late Sri Ramendra Kumar Saxena. They constructed staircase 15 years ago for the purpose of repair of roof. The representative of plaintiff demanded amount of Rs. 25,000/- from them. The respondents refused to pay this amount. Therefore, suit was instituted on behalf plaintiff. It is also contended that plaintiff wants to give disputed shop to another person on higher rent. The respondent no.1 and 2 has accepted that they were tenant of disputed shop at the rate of Rs. 7/- per month from 50 years ago and paid up to date rent to the plaintiff.
6. The plaintiff contradicted contentions of written statement and reiterated the contention made in the plaint by means of reply filed by it.
7. The trial Court has framed following six issues, which are as under:
1& D;k fookfnr nqdku uD'kk&utjh okn&i= v{kj d] [k] x] ?k] izfroknhx.k ls okn&i= esa crk;s x;s dkj.kksa ds vk/kkj ij [kkyh djk;s tkus ;ksX; gS \ 2& D;k fookfnr nqdku ls eyok gVk;s tkus ;ksX; gS rFkk oknh dCtk ikus dk vf/kdkjh gS \ 3& D;k oknh 5 gtkj :i;s uqdlku dh ckcr eqvkotk ikus ds vf/kdkjh gS \ 4& D;k lkr :i;s izfrekg ds fglkc ls eqvkotk oknh ikus dk vf/kdkjh gS \ 5& D;k izfroknh dks /kkjk 106 lEifRr vUrj.k vf/kfu;e dh uksfVl rkehy djk;h x;h gS \ 6& oknh fdl vuqrks"k dks ikus dk vf/kdkjh gS \ English version of issues framed by the trial Court is as follows:
"1. Whether the disputed shop shown by alphabets Ka, Kha, Ga, Gha in the site-map of the plaint, is liable to be vacated from the respondents on the basis of reasons narrated in the plaint ?
2. Whether the malba (debris) is liable to be removed from the disputed shop and the plaintiff is liable to get possession ?
3. Whether the plaintiff is liable to get compensation of Rs. 5 thousand for damages ?
4. Whether the plaintiff is liable to get compensation at the rate of Rs. Seven per month ?
5. Whether the respondent has been served the notice under Section 106 of the Transfer of Property Act ?
6. For which relief the plaintiff is entitled ?"
8. Learned trial Court of Civil Judge (Junior Division) recorded evidence of PW-1 Shiv Prakash Singh, PW-2 Mukut Bihari Mishra, PW-3 Ram Swaroop Singh and evidence of DW-1 Sant Saran Mishra, respondent no.2 and DW-2 Aanand Swaroop Awasthi. It has also considered documentary evidence relied upon by both the parties and delivered judgment dated 19.12.2000 and decreed the plaintiff 's suit and directed the respondents to vacate disputed shop within 45 days and also directed to remove construction material of illegal constructions. The relief regarding damages was refused.
9. Learned first appellate Court vide impugned judgment dated 27.03.2001 has allowed Civil Appeal No. 6 of 2001: Ganesh Prasad Mishra and others Vs. Radha Krishna Ji Mandir, Kamlapur and has set aside judgment and decree dated 19.12.2000 delivered by the Court of Civil Judge (Junior Division), Biswan Sitapur in Civil Suit No. 17/94: Radha Krishnaji Virajman Mandir, Kamlapur Vs. Ganesh Prasad Master and another.
10. The appellant/plaintiff being aggrieved by the impugned judgment and order has preferred the present second appeal.
11. During pendency of present second appeal, respondent no.1 Ganesh Prasad Mishra had expired and his legal representatives respondent nos. 1/1 to 1/5 were substituted. The respondent no. 1/1 Smt. Chandra Kali Mishra also expired during pendency of present second appeal. Her heirs respondent nos. 1/2 to 1/5 and respondent no.2 were already on record.
12. After death of learned counsel Sri P.L. Mishra, Advocate, engaged on behalf of respondents, Card Notices were issued. Notices issued against respondent no.2-Sant Sharan Mishra was served personally, as per report submitted by OSD on 22.01.2015. Vide order dated 29.10.2018, it was found that notices were served on respondent nos. 1/2 to 1/5. The substitution application (C.M.Application No. 109684 of 2017) was allowed regarding death of respondent no.1/1 with the direction that, "if none appears for the respondents, present second appeal shall be heard ex-parte and would be decided on merits".
13. Sri Arun Saxena, learned counsel for the appellant sought adjournment on 21.12.2018 and 21.01.2019. He did not appear on 08.03.2019. No one had appeared on behalf of respondents on 21.12.2017, 28.03.2019, 11.04.2019 and 30.04.2019 also. Therefore, this appeal was heard on 06.11.2019 ex-parte.
14. I have heard learned counsel for the appellant and perused the written arguments also.
15. Learned counsel for the appellant relying on Sudhir G. Angur v. M. Sanjeev, (2006) 1 SCC 141 has argued that Hon'ble Supreme Court (Bench of three Judges) has held in paras 4, 5 and 11 as follows:
"4. After the revision was dismissed the appellants applied for rejection of the plaint under Order 7 Rule 11 CPC. According to the appellants the suit was not maintainable by virtue of Section 40 of the Mysore Act. This application was dismissed by the trial court on 6-8-2001. The trial court held that the question whether the Mysore Act applied or not would have to be decided on evidence. The appellants filed a revision before the High Court of Karnataka which has been dismissed by the impugned judgment.
5. At this stage, it must be mentioned that the Mysore Act has been repealed in the year 2003. Thus, even presuming the application under Order 7 Rule 11 was required to be allowed, even then the plaint would only have to be returned for presentation to the proper court. Now the proper court would be the Court of the Principal City Civil Judge, Bangalore which is the same court. Thus it would be an idle formality to have the plaint rejected to be presented again to the same court. In such a case no question of limitation would arise as the time taken in the earlier suit would get excluded. In the above view no further consideration was necessary. However, as the matter has been fully argued, we deal with all the contentions.
11. In our view, Mr G.L. Sanghi is also right in submitting that it is the law on the date of trial of the suit which is to be applied. In support of this submission, Mr Sanghi relied upon the judgment in Shiv Bhagwan Moti Ram Saraoji v. Onkarmal Ishar Dass [AIR 1952 Bom 365 : 54 Bom LR 330] wherein it has been held that no party has a vested right to a particular proceeding or to a particular forum. It has been held that it is well settled that all procedural laws are retrospective unless the legislature expressly states to the contrary. It has been held that the procedural laws in force must be applied at the date, when the suit or proceeding comes on for trial or disposal. It has been held that a court is bound to take notice of the change in the law and is bound to administer the law as it was when the suit came up for hearing. It has been held that if a court has jurisdiction to try the suit, when it comes on for disposal, it then cannot refuse to assume jurisdiction by reason of the fact that it had no jurisdiction to entertain it at the date, when it was instituted. We are in complete agreement with these observations. As stated above, the Mysore Act now stands repealed. It could not be denied that now the Court has jurisdiction to entertain this suit."
16. Relying on the aforesaid precedent learned counsel for the appellant has further argued that Section 106 of Transfer of Property Act, 1882 has been substituted by Act no. 03 of 2003, vide Section 2 of amending Act, which got ascent of President on 31.12.2002. The amending Act provides transitory provisions as follows:
"3. Transitory provisions.- The provisions of section 106 of the principal Act, as amended by section 2, shall apply to-
(a) all notices in pursuance of which any suit or proceeding is pending at the commencement of this Act;
(b) all notices which have been issued before the commencement of this Act but where no suit or proceeding has been filed before such commencement."
17. On perusal of transitory provisions of Act No. 3 of 2003, it reveal that amended Section 106 of Transfer of Property Act, 1882 was made applicable to all notices in pursuance of which any suit or proceeding is pending at the commencement of this Act.
First and Second appeal are deemed to be continuation of the suit.
18. A Coordinate Bench of this Court in Civil Revision No. 176 of 2006: Hardoi Zila Sahkari Bank Limited, Hardoi V. Smt. Sarla Gupta And Another 2010 SCC Online All 741 has dealt with provisions of Section 106 on the basis of Transfer of Property (Amendment) Act, 2002 (Act 3 of 2003) passed by Parliament and U.P. Act No. 24 of 1954 and Article 254 of the Constitution of India and observed as follows:
................
"21. Article 254 reads as under:--
"Inconsistency between laws made by parliament and laws made by the Legislature of States- (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State.
22. Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to amending, varying or repealing the law so made by the Legislature of the State.
23. Article 254(1) lays down a general rule. Clause (2) is an exception to that Article and the proviso qualifies the exception. If there is repugnancy between the law made by the State and that made by Parliament with respect to same field, the law made by Parliament shall prevail to the extent of the repugnancy and the law made by the State shall, to the extent of such repugnancy, be void. A State law would be repugnant to the Union law when there is direct conflict between the two laws. Such repugnancy may also arise where both laws operate in the same field and the two cannot possibly stand together. For example, where both prescribed punishment for the same offense but the punishment differs in degree or kind or in the procedure prescribed. In all such cases the law made by the Parliament shall prevail over the State law in view of Article 254.
24. Under Article 254 of the Constitution, only in the following circumstances question of repugnancy comes (i) when there is direct conflict between the two provisions. This may happen- (a) Where one cannot be obeyed without disobeying the other (b) two enactments may also be inconsistent although obedience to each of them may be possible without disobeying the other.
25. Presumably, the Parliament with a view to introduce a uniform law throughout the country avoiding defect found in practice passed the Transfer of Property (Amendment) Act, 2002. This object would be frustrated if the argument that both the U.P. Act No. No. 24 of 1954 and the Amending Act, 2002 should co-exist as the U.P. Act No. of 1954 has not been omitted. By State Amendment i.e. U.P. Act No. 24 of 1954 the period of notice of "fifteen days" as prescribed in Section 106 of the Transfer of the Property Act was substituted by the words "thirty days" but by the Transfer of Property (Amendment) Act, 2002 the entire 106 Section occurring in the Transfer of Property Act, 1882 has been substituted by a new Section prescribing therein the period of notice as fifteen days. Therefore, in view of the settled law, the Central Amendment Act would prevail over the U.P. Act No. 24 of 1954.
26. It may also be noted that though the notice to quit was sent by the respondents to the revisionist on 4.11.2004 providing 15 days time to vacate the premises but, admittedly, the suit was instituted by the revisionists in the year 2005, which is admittedly, much after 15 days time, provided in the notice.
27. Even otherwise as sub-Section 3 of Section 106 has been brought on the statute book by means of Amendment Act, 2002, it specifically provides that the notice under sub-Section 3 of Section 106 of the Act shall not deem to be not valid merely because the period mentioned therein falls short of the period specified under that subsection, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section. Thus by fixation of law, proceedings cannot be vitiated on the ground of defective notice.
28. In a case reported in (1975) 1 SCC 192 : AIR 1975 SC 164 Boucher Pierre Andre v. Supdt. Central Jail, their Lordships of Hon'ble Supreme Court held that where a legal fiction is created, full effect must be given to it and it should be carried to its logical conclusion (para 3).
29. In (1997) 1 SCC 650 Gajraj Singh v. State Transport Appellate Tribunal, after considering a number of earlier cases, Hon'ble Supreme Court observed as under:
"22........................Legal fiction is one which is not an actual reality and which the law recognises and the court accepts as a reality. Therefore, in case of legal fiction the court believes something to exist which in reality does not exist. It is nothing but a presumption of the existence of the state of affairs which in actuality is non-existent. The effect of such a legal fiction is that a position which otherwise would not obtain is deemed to obtain under the circumstances."
30. Aforesaid proposition of law has been affirmed by the Hon'ble Supreme Court in the cases reported in (2004) 6 SCC 59 State of West Bengal v. Sadan K. Bormal, (2005) 3 SCC 161 State of A.P. v. Pensioner's Association, (2000) 2 SCC 699 State of Maharashtra v. Laljit Rajshi Shah, (2008) 5 SCC 257 UCO Bank v. Rajinder Lal Kapoor.
31. In view of the above discussions, the provisions of the U.P. Act No. 24 of 1954 cannot be allowed to operate only because it has received the Presidential assent when the entire provision of Section 106 of the Transfer of Property Act has been substituted in question is directly in conflict with the Central Act.
19. I have perused un-amended Section 106 of Transfer of Property Act, 1882 and amended Section 106 of Transfer of Property Act, on the basis of Act 03 of 2003, which are as follows:
Unamended:-
"106. Duration of certain leases in absence of written contract or local usage.- (1) 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, on the part of either lessor or lessee, by six months' notice expiring with the end of a year of the tenancy; 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 fifteen days' notice expiring with the end of a month of the tenancy.
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."
Amended:-
After substitution by Transfer of Property (Amendment) Act, 2002 (Act No. 3 of 2003), Section 106 of the Transfer of Property Act, 1882 reads as under:--
Duration of certain leases in absence of written contract or local usage:--
(1) 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 years, terminable, on 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 fifteen days' notice.
(2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in subsection (1) shall commence from the date of receipt of notice.
(3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.
(4) Every notice under sub-section (1) 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.]"
Substitution of Section 106 results in repeal of the earlier provision and its replacement by the new provision.
20. Learned counsel for the appellant has relied on Reddy Ramamurthy (died) by LRs. Vs. Goli Bhaskara Rao 2006 SCC Online AP 629 of High Court of Judicature at Andra Pradesh at Hyderabad and argued that Andra Pradesh High Court in para 14 and 15 has considered Transfer of Property (Amendment) Act, 2002, Central Act No. 3 of 2003 and observed as follows :
"14. Accordingly, the Transfer of Property (Amendment) Act, 2002, Central Act No. 3 of 2003, was enacted and by Section 2 thereof, Section 106 of the Principal Act was amended specifically incorporating sub-section (3) under which a notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section. Sub-section (3) as amended, undoubtedly, makes Ex. A.1 notice read with Ex. A.3 notice not invalid due to termination of tenancy on 11-10-1991 instead of 12-10-1991.
15. The amended Section 106 shall apply according to the transitory provision in Section 3 of the Amendment Act to all notices in pursuance of which any suit or proceeding is pending at the commencement of the Amendment Act. It is true that the suit was disposed of on 11-8-1994 and was not pending by the date of the Amendment Act coming into force. But this appeal by the defendant against the judgment and decree in the suit is undoubtedly pending then and even now. As clarified by Hon'ble Sri JusticeV.V.S. Rao in the orders on Review A.S.M.P. No. 338 of 2005, dated 13-12-2005, appeal is a continuation of the suit and even if the matter is pending at the appellate stage, the amended provision would apply. The contention to the contrary was negatived. The contention that this appeal is "not in pursuance of Exs. A.1 and A.3 notices and therefore, the amended provision does not apply, defeats the very purpose and object of the amendment. Even without the aid of the statement of objects and reasons for the Legislation, the plain, unambiguous and grammatical language of Sections 2 and 3 of Amendment Act makes it clear that the pendency of a lis in which eviction of tenant is sought, in pursuance of a notice to quit, is what all is required for the application of the amended provision, irrespective of whether the pending lis is at the instance of the landlord or the tenant. An appeal by tenant against eviction in pursuance of a notice to quit also arises in pursuance of such notice for adjudication of the validity or otherwise of the same. Such appeal, in effect and substance, becomes pending in pursuance of such notice only and any other construction will result in an absurd situation where the notice would have become valid, if the suit were pending and would have to be considered invalid, if the appeal is pending, though it is a continuation of the suit. While the constitutional and legal validity of the amendment is not in dispute, the transitory provision in Section 3 of the Amendment Act has to, therefore, apply with full force to all notices in pursuance of which any suit or appeal is pending at the commencement of that Act. In that view of the matter, the appeal has to fail."
Substantial Question of law F :-
21. Learned counsel for the appellant relying upon amended Section 106 Sub-Clause (3) has vehemently argued that a notice under Sub-Section (1) of Section 106 of Transfer of Property Act shall not be deemed to be invalid, merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.
There is substance in the argument of learned counsel for the appellant, because Section 106 sub-clause (3) provides that notice under sub-section (1) shall not be deemed to be invalid on the basis of fact that appellant/plaintiff sent notice-8 Ga/ 9 Ga on 03.08.1993 terminating tenancy of respondents on 31.08.1993.
22. Learned counsel for the appellant has further argued that according to provisions of amended Section 106 sub-clause (1) of Transfer of Property Act, period of notice has been prescribed 15 days in stead of 30 days. State Legislature of U.P. by means of Act No. 24 of 1954 has substituted period 30 days in place of 15 days. Amendment Act 03 of 2003 will prevail over, the aforesaid said amendment made under Section 106 of Transfer of Property Act,1882 by means of Act No. 24 of 1954. Therefore, at present 15 days notice is required for termination of lease from month-to-month.
On the other hand, according to amended Section 106 sub-clause (3) of Transfer of Property Act, 1882 is squarely applicable to the pending cases also. Therefore, for the sake of argument if it is considered that three days were short of the clear 30 days for vacating the disputed shop by the respondents, as per provisions amended by the Act No. 24 of 1954 by the Legislature of the State of U.P., would not make notice dated 03.08.1993 defective or invalid, because suit was instituted by the appellant/plaintiff on 12.01.1994 much after period of 30 days. The notice was issued on 03.08.1993, which was served on the respondent on 10.08.1993 by refusal as reported by Postman.
23. Learned trial Court has recorded specific finding regarding Issue No.5 that notice- 8 Ga sent to respondents by registered post along with acknowledgment. On original copy Notice - 9 Ga, post-man has endorsed the aforesaid fact that respondent "Ganesh Prasad refused to accept notice", who was the original tenant of disputed shop. Therefore, notice under Section 106 Transfer of Property Act was sufficiently served on the respondent no.1/tenant.
24. Learned trial Court has relied upon precedent of this Court propounded in the case of Smt. Amina Khatoon and others Vs. Smt. Johra Bibi and others, AIR 1971 Allahabad page 372 and Ganga Ram Vs. Smt. Phulwati, 1970 ALJ page 336.
25. As far as, learned First Appellate Court has relied upon defect of short period mentioned in notice under Section 106 Transfer of Property Act and complete/clear 30 days were not given to respondents for vacating the disputed shop is also not well founded, because defect of Notice- 9Ga was not pleaded by the respondents in their written statement. On this score also, learned First Appellate Court could not record finding that notice under Section 106 Transfer of Property Act was defective on the aforesaid ground.
26. Learned counsel for the appellant has relied upon exposition of law propounded by Hon'ble Supreme Court in the case of Dharam Pal v. Harbans Singh, (2006) 9 SCC 216 and argued that Hon'ble Supreme Court in paras 7 and 8 of the said judgment has held as follows:
"7. Learned counsel for the appellant submits that none of the two recitals contained in the notice can fulfil the requirement of Section 106 of the Transfer of Property Act. One recital in the notice terminates the tenancy from the date of issue of notice. The other one requires the tenant to vacate the premises within 15 days from the date of the receipt of the notice. Both are bad in the light of the requirements spelled out by Section 106 of the Transfer of Property Act. The learned counsel seems to be right in urging the pleas. However, still we feel that the appellant cannot be allowed relief. Law is well settled that an objection as to the invalidity or insufficiency of notice under Section 106 of the Transfer of Property Act should be specifically raised in the written statement failing, which it will be deemed to have been waived. In the present case, the only objection taken in the written statement is that the notice issued by the plaintiff was "illegal, null and void and ineffective upon the right of the defendant". The thrust of the plea raised by the defendant-appellant in his written statement was that the notice was issued by the person who did not have the authority from the landlord to give the notice. The plea so taken has been found devoid of merit by the High Court and the courts below. The plea that the notice was insufficient in the sense that it did not give 15 clear days to the tenant to vacate or that the notice did not terminate the tenancy with the expiry of the month of the tenancy, has not been taken in the written statement.
8. Obviously for want of specific plea in the written statement, the trial court has not framed any issue reflecting an objection to the validity or sufficiency of notice, the plea in the manner in which it is sought to be urged before us. The plea as to insufficiency of notice should be deemed to have been waived by the appellant and cannot be allowed to be urged at this stage. No fault can be found with the judgment and decree of the High Court as also of the two courts below upholding the termination of tenancy and the plaintiff-respondent's entitlement to evict the tenant."
27. Learned counsel for the appellant has relied upon exposition of law propounded by Hon'ble Supreme Court in the case of Bhagabandas Agarwalla v. Bhagwandas Kanu, (1977) 2 SCC 646 and argued that Hon'ble Supreme Court in paras 3 and 4 of its judgment has observed as follows:
"3. Now, it is settled law that a notice to quit must be construed not with a desire to find faults in it, which would render it defective, but it must be construed ut res magis valeat quam pereat. "The validity of a notice to quit", as pointed out by Lord Justice Lindley, L.J. in Sidebotham v. Holland [(1895) 1 QB 378] , "ought not to turn on the splitting of a straw". It must not be read in a hyper-critical manner, nor must its interpretation be affected by pedagogic pendatism or over-refined subtlety, but it must be construed in a common sense way. See Harihar Banerji v. Ramsashi Roy [45 IA 222 (Bengal HC)] . The notice to quit in the present case must be judged for its validity in the light of this well recognised principle of interpretation.
4. It is indisputable that under Section 106 of the Transfer of Property Act the notice to quit must expire with the end of the month of the tenancy, or in other words, it must terminate the tenancy with effect from the expiration of the month of the tenancy. If it terminates the tenancy with effect from an earlier date, it would be clearly invalid. Now, here the notice to quit required the respondents to vacate the premises "within the month of October 1962" and intimated to them that otherwise they would be "treated as trespassers from November 1" in respect of the premises. The question is: what is the meaning and effect of the words "within the month of October, 1962" in the context in which they are used in the notice to quit? Do these words mean that the tenancy of the respondents was sought to be terminated at a date earlier than the expiration of the month of October 1962 and they were required to vacate the premises before such expiration? We do not think so. When the notice to quit required the respondents to vacate "within the month of October 1962", what it meant was that the respondents could vacate at any time within the month of October 1962, but not later than the expiration of that month. .........
28. Learned counsel for the appellant has relied upon exposition of law propounded by this Court in the case of Balbir Singh v. Kalawati, AIR 1976 All 434 at page 333 and argued that in paras 9, 10 and 11 of its judgment this Court has held as follows:
"9. Lastly, it is urged that the notice to quit was invalid inasmuch as the plaintiff did not treat defendant No. 1 as a tenant of the Kothari and could not have any in tention to terminate his tenancy in report of the same. Before going into the merit of this contention it is important to state that in his written statement the defendant No. 1 had challenged simply the receipt of notice and not its validity. The validity of notice was not challenged even in the grounds of revision under Section 25 of the Small Cause. Court Act nor his point was pressed before the court. Even in this revision the ground on which-validity is attached has not been specifically set out. In Kishanlal Singal v. Hari Kishan Lohia [A.I.R. 1956 Assam 113.] is observed:--
"The question about notice to quit is not purely a question of law, but is a mixed question of law and fact. Hence if under the terms of the contract the tenants are entitled to a notice of one month instead of 15 days, they may be taken to have, waived the same and to have been satisfied with the sufficiency and validity of the notice especially when they raise, the point about the factum of service of notice only."
10. Again in Batoo Mal v. Rameshwar Nath [A.I.R. 1971 Delhi 98.] the observation is:--
"The failure of the tenant to raise the objection regarding the non-compliance with Section 106 of the T.P. Act at an early stage of the litigation would amount to a waiver of the plea by him."
11. I am in respectfully agreement with the aforesaid observations. Defendant No. 1 challenged only the service of notice and not its validity. He will therefore, be deemed to have waived the plea of invalidity of notice. So far as the service of notice is concerned there is ample material on the record to prove that it was duly served on the said defendant."
29. Learned counsel for the appellant has relied upon exposition of law propounded by Delhi High Court in the case of Battoo Mal Vs. Rameshwar Nath and another, AIR 1971 Del 98 at page 761 and argued that following observation has been made by the Delhi High Court, which is as follows:
"The question whether the failure of the tenant taking the plea of non compliance with Section 106 of the Transfer of Property Act amounts to a waiver of the said plea and whether the landlord is thereby exempted from the necessity to comply with Section 106 of the Transfer of Property Act can be answered only after the nature of the compliance with Section 106 of the Transfer of Property Act is understood. We have stated above that such a compliance is not a jurisdictional condition nor does the inherent jurisdiction of a Court or the Rent Controller depend on the satisfaction of this condition. The compliance must, however, be pleaded by the landlord. But the failure to make such a pleading would not ordinarily amount to non-disclosure of the cause of action itself. It is for these reasons that we are inclined to the view that the failure of the tenants to raise the objection regarding the non-compliance with Section 106 of the Transfer of Property Act at an early stage of the litigation would amount to a waiver of the plea by them. It would depend upon the facts and circumstances of each case when the conduct of the tenant would amount to such a waiver. The greater the delay on the part of the tenant in raising such a plea the greater the probability of his conduct amount to waiver. This Court has consistently taken the view that the failure of the tenant to raise such a plea before the Controller would amount to a waiver of such a plea and, therefore, the plea cannot be raised for the first time in the first appeal much less in the second appeal. [Vide Des Raj v. Ramji Lal Kundan Lal, 1969 R.C.R. 54, (6)Inder Singh v. Nanak Chand, 1969 R.C.R. 79 (19) and Pritam Singh v. Suraj Pershad, 1969 D.L.T. 704]."
30. Learned First Appellate Court had not taken notice of contentions of respondents mentioned in written statement filed by the respondents. On perusal of written statement it reveal that respondent has mentioned in para 17 of Written Statement that notice under Section 106 of Transfer of Property Act was not sent to them by plaintiff/appellant. They have not taken plea that notice- 9 Ga/ 8 Ga was defective and period for vacation of short falls short by period of 03 days. In absence of such specific pleading respondents could not raise objection of defect on the basis of short period mentioned in notice dated 03.08.1993, claiming it to be defective and invalid.
31. Learned appellate court has recorded finding regarding notice under Section 106 Transfer of Property Act incorrectly. It has not considered that no plea of defective or invalid notice was taken at the earlier stage by the respondents before trial Court and no issue was framed in this regard that notice under Section 106 Transfer of Property Act was defective or invalid. Learned First Appellate Court has not set aside other findings recorded by the trial Court. It has only considered the nature of notice under Section 106 Transfer of Property Act sent by the plaintiff/appellant. Therefore, other findings recorded by trial Court on other issues shall be deemed by implication affirmed and concurrent findings.
32. Learned trial Court has evaluated and appreciated evidence of PW-1, PW-2 and PW-3 and DW-1 and DW-2 and recorded finding that respondents made illegal constructions and altered the original shape and position of disputed shop without permission of the plaintiff.
33. The respondents/defendant has not taken plea of defective notice or invalid notice in their written statement. Therefore, on the basis of aforesaid exposition of law relied upon by the learned counsel for the appellant it shall be deemed that they have waived plea in this regard, because law is well settled that an objection as to the invalidity or insufficiency of notice under Section 106 of the Transfer of Property Act should be specifically raised in the written statement, failing which, it will be deemed to have been waived by the tenant.
34. They have also not taken plea that the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 is applicable in the area, in which, disputed shop/property is situated, according to provision of Section 1 of the U.P. Act No. 13 of 1972.
35. The finding recorded by the trial Court on Issue No.5 is regarding substantial questions of law "F" and "G" and has been decided in favour of appellant/plaintiff. The notice dated 03.08.1993 fulfills the requirement of Section 106 Transfer of Property Act, therefore, substantial question of law "F" is hereby decided in favour of the appellant/plaintiff.
Substantial Question of Law E and G ;-
36. Learned First Appellate Court has considered provisions of section 2 (1) (bb) inserted by Act 13 of 1972 by U.P. Act No. 5 of 1995 vide impugned judgment dated 27.03.2001, by which, buildings belonging to or vested in a public Charitable or public religious institution were taken out of the purview of Act 13 of 1972. In para 15 it has been observed as follows:
"15. It is apparent from the record that Civil suit no. 17 of 1994 was filed much before the insertion of the aforesaid provision in Act 13 of 1972. It is still not settled as to whether the operation of the aforesaid amendment in Act 13 of 1972 is retrospective or not, but for the sake of argument, even if, this argument is accepted that Act 13 of 1972 is not applicable to the present case, even then it has to be seen as to whether the notice under section 106 of Transfer of Property Act was required to terminate the tenancy or not the appellants have vehemently argue that the notice which was given to terminate the tenancy is invalid and it can not have the effect of terminating the tenancy of the appellants."
Therefore, learned First Appellate Court has not recorded specific finding that Act No. 13 of 1972 is applicable to the disputed property.
The observation of learned appellant court is misconceived by virtue of provision of Section 6(c) of the General Clauses Act and it is not recorded in correct perspectives, because Hon'ble Apex Court in Ambalal Sarabhai Enterprises Ltd. Vs. Amrit Lal and Company and another, 2001 (8) SCC 397 has held in para 35, 36 and 38 as follows:
"35. In cases where Section 6 is not applicable, the courts have to scrutinise and find whether a person under a repealed statute had any vested right. In case he had, then pending proceedings would be saved. However, in cases where Section 6 is applicable, it is not merely a vested right but all those covered under various clauses from (a) to (e) of Section 6. We have already clarified that right and privilege under it is limited to that which is "acquired" and "accrued". In such cases pending proceedings is to be continued as if the statute has not been repealed.
36. In view of the aforesaid legal principle emerging, we come to the conclusion that since proceeding for the eviction of the tenant was pending when the repealing Act came into operation, Section 6 of the General Clauses Act would be applicable in the present case, as it is the landlord's accrued right in terms of Section 6. Clause (c) of Section 6 refers to "any right" which may not be limited as a vested right but is limited to be an accrued right. The words "any right accrued" in Section 6(c) are wide enough to include the landlord's right to evict a tenant in case proceeding was pending when repeal came in. Thus a pending proceeding before the Rent Controller for the eviction of a tenant on the date when the repealing Act came into force would not be affected by the repealing statute and will be continued and concluded in accordance with the law as existed under the repealed statute.
38. In view of these findings we hold that the landlord has a right under the repealed Rent Act by virtue of Section 6(c) of the General Clauses Act, which would save the pending proceedings before the Rent Controller, which may continue to be proceeded with as if the repealed Act is still in force."
A Division Bench of this Court in Champa Devi (Smt) and another Vs. Rent Control and Eviction Officer (1st) Allahabad and another, 2002 (1) AWC page 673 in para 2, 3 and 4 of its judgment reference made by the Larger Bench was answered as follows:
"2. Following question of law, on reference by a learned Single Judge, is up for consideration before this Bench:
"Whether clause (g) to Section 2 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as U.P. Act No. 13 of 1972) which has been inserted in the Principal Act by Section 2 of U.P. Act No. 5 of 1995 will affect the proceedings pending on the date of enforcement of U.P. Act No. 5 of 1995."
3. The learned counsels appearing for the parties agree and submit that the question referred by the learned Single Judge has been conclusively answered by the decision of the Hon'ble Supreme Court of India rendered in Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal and Co., [ 2001 (45) ALR 476 (SC).] and in the light of this decision, the answer to the question has to be in negative.
4. Accordingly, the answer to the question referred would be that Clause (g) of Section 2 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act 1972, inserted in the Act by Section 2 of U.P. Act No. 5 of 1995, will not affect the proceedings pending on the date of enforcement of U.P. Act No. 5 of 1995."
The same view was taken by this Court in Thakur Rang ji Maharaj and another Vs. Om Prakash Agarwal and another, reported in 2012 SCC OnLine All 1923 in para 12, 13, 14 and 15 of its judgment, which is as follows:
"12. The U.P. Amendment Act of 1995 by virtue of section 1 sub-section 2 came into force on 26.9.1994. By section 2 thereof Clause (bb) was inserted in sub-section 1 of section 2 of Act 13 of 1972. It is a small Amendment Act, containing only four sections. It has not said anything about the proceedings already pending in respect of the buildings which otherwise were within the ambit of Act 13 of 1972 but after amendment in section 2 of Act 13 of 1972 would be entitled to claim exemption from the application of Act 13 of 1972. Learned Counsel for the petitioner admitted that there is no provision in the Amendment Act or under Act 13 of 1972 stating that pending proceedings shall stand abated or rendered without jurisdiction.
13. Moreover the aforesaid issue, I find stand already settled by Apex Court as well as by a larger Bench i.e., Division Bench of this Court. In Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal and Company [2001 (45) ALR 476 (SC).] the Court has held that insertion of certain provision in the principal Act, taking away application of the Act, would not affect pending proceedings, if on the date when proceedings were initiated, the same were well within its jurisdiction.
14. The said principle has been followed by a Division Bench in Champa Devi (Smt.) v. Rent Control and Eviction Officer (Ist), Allahabad [2002 (1) ARC 192 : 2002 (46) ALR 430.] and in Para 4 of the judgment, the reference made to the larger Bench was answered as under:
"Accordingly, the answer to the question referred would be that Clause (g) to section 2 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, inserted in the Act by section 2 of U.P. Act No. 5 of 1995, will not affect the proceedings pending on the date of enforcement of U.P. Act No. 5 of 1995."
15. In view of the above authority of Apex Court and the Division Bench judgment of this Court, the submission that the Amendment Act of 1995 would result in abating the pending proceedings is clearly misconceived and is rejected."
The same view was also taken by this Court in Hazi Mohammad Rashid (D) through LRs Vs. XIIth Additional District Judge, Agra and others, 2013 (3) AWC 2274 in para 14 to 18 of its judgment, which is as follows:
"14. During pendency of revision, Act, 1972 was amended whereby property, vested or possessed by a public religious or charitable institution was exempted from application of Act, 1972 and also those properties where monthly rent is Rs. 2,000/- were taken outside the purview of the Act, 1972.
15. The submission of petitioner that shop in question is owned by a trust and in view of section 2(1)(bb), Act, 1972 is not applicable and therefore revision was liable to be dismissed, is thoroughly misconceived, inasmuch as, the aforesaid amendment came into force w.e.f. 26.9.1994 by U.P. Act No. 5 of 1995. The proceedings, which were pending prior thereto remained unaffected thereby. This issue, I find stand already settled by Apex Court as well as by a larger Bench i.e., Division Bench of this Court. In Ambalal Sarabhai Enterprises Ltd. v. Amrit Lal & Company [2001 (45) ALR 476 (SC).] , the Court has held that insertion of certain provision in the principal Act, taking away application of the Act, would not affect pending proceedings, if on the date when proceedings were initiated, the same were well within its jurisdiction.
16. The said principle has been followed by a Division Bench in Champa Devi (Smt.) v. Rent Control and Eviction Officer (Ist), Allahabad [2002 (46) ALR 430.] and in para 4 of the judgment, the reference made to the larger Bench was answered as under:
"Accordingly, the answer to the question referred would be that Clause (g) to section 2 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, inserted in the Act by section 2 of U.P. Act No. 5 of 1995, will not affect the proceedings pending on the date of enforcement of U.P. Act No. 5 of 1995."
17. The same view has also been taken by this Court in Writ Petition No. 53119 of 2002, Thakur Rang Ji Maharaj v. Om Prakash Agarwal, decided on 14.8.2012.
18. In view of the above authority of Apex Court and the Division Bench judgment as well as Single Judge of this Court, the submission that the Amendment Act of 1995 would result in abating the pending proceedings is clearly misconceived and is rejected."
Therefore, observation recorded by learned First Appellate Court is misconceived, in as much as the aforesaid amendment came into force w.e.f. 26.09.1994 by U. P. Act 5 of 1995. The proceedings which were pending prior their to remained unaffected thereby.
37. Learned First Appellate court has specifically mentioned that for the sake of argument, even if this argument is accepted that Act 13 of 1972 is not applicable to the present case, even then it has to be seen as to whether the notice under Section 106 of Transfer of Property Act was required to terminate the tenancy or not ?
38. Learned Appellate court has recorded finding in para 19 of the impugned judgment that, "the lease in the present case was not from year to year or from any term exceeding one year or reserving a yearly rent hence no registered instrument was required to create such a lease. When the lease in the present case did not require registration hence it cannot be said that it was a tenancy at will and no notice was required under Section 106 of the Transfer of Property Act to terminate the tenancy".
In para 20 it has been held that, "the defendant no.1 cannot be said to be a tenant at will and it cannot be said to be a tenancy at will".
In para 23, learned First Appellate Court has recorded specific finding that, "thus, in my opinion, the tenancy in the present case was not a tenancy at will and it could be terminated only by a notice as required under Section 106 of the Transfer of Property Act".
39. Section 1 of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P.Act no. 13 of 1972) provides as follows, which is reproduced as under:
"1. Short title, extent, application and commencement.- (1) This Act may be called the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.
(2) It extends to the whole of Uttar Pradesh.
(3) It shall apply to-
(a) every city as defined in the Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959 (U.P. Act no. II of 1959)
(b) every municipality as defined in the United Provinces Municipalities Act, 1916 (U.P. Act no. II of 1916)
(c) every notified area constituted under the United Provinces Municipalities Act, 1916 ; (U.P. Act no. II of 1916)
(d) every town area constituted under the United Provinces Town Areas Act, 1914: (U.P. Act no. II of 1914) Provided that the State Government, if it is satisfied that it is necessary or expedient so to do in the interest of the general public, residing in any other local area, may by notification in the Gazette declare that this Act or any part thereof shall apply to such area, and thereupon this Act or part shall apply to such area :
Provided further that the State Government, if it is satisfied that it is necessary or expedient so to do in the interest of general public, may by notification in Gazette-
(i) cancel or amend any notification issued under the preceding proviso; or
(ii) declare that the Act or any part thereof, as the case may be, shall cease to apply to any such city, municipality, notified area, town area or other local area as may be specified and thereupon this Act or part shall cease to apply to that city, municipality, notified area, town area or other local area and may in the like manner cancel or amend such declaration.
(4) It shall come into force on such date as the State Government may by notification in the Gazette appoint."
40. It is relevant to mention here that disputed shop is situated in Village Kamlapur, Mazra Maholi (village), Pergana Peer Nagar (village), Tehsil Sidhauli, District Sitapur. Therefore, it does not fall within urban limits of city Sitapur or other municipalities or area specifically notified under Section 1 of Act No. 13 of 1972. According to record available on Bhoolekh site of State of U.P., Kamlapur, Maholi and Peer Nagar all are villages and part of Gram Panchayat. Therefore, the U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act 1972 is not applicable to the disputed property/shop. Since disputed shop/property is not situated in urban area of the city Sitapur or any municipality or notified area, therefore, Act No. 13 of 1972 is not applicable to the disputed property of this Suit No. 17 of 1994.
41. The respondents during trial during trial before learned trial Court has not filed any Notification regarding declaration of area of village Kamlapur, Mazra Maholi, Pergana Peer Nagar for the purposes of application of Act No. 13 of 1972 or notified area or part of any municipality or town area.
42. The First Appellate Court has also not recording any finding that U.P. Act No. 13 of 1972 was applicable to the disputed property.
The substantial question of law at Serial No. "E" is hereby accordingly answered and decided in favour of the appellant.
Consequently, substantial question of law at Serial No. "G" is answered in terms that notice under Section 106 Transfer of Property Act, 1882 was required for termination of tenancy of the respondent no.1 and decided accordingly.
Substantial Question of Law H:
43. As far as substantial question of law at Serial No. "H" is concerned, learned trial court has recorded finding regarding Issue No. 1 and 2 that, "respondent no.1/defendant Ganesh Prasad was tenant of disputed shop owned by plaintiff's Trust at the rate of Rs. 7/- per month". The respondents were not successful to adduce evidence regarding the fact that representative of plaintiff Cashier Late Sri Ramendra Kumar Saxena gave oral permission for construction on deposition of amount of Rs. 5000/-.
44. Learned trial Court has recorded finding on appreciation of evidence of both parties that there was no dispute between plaintiff and defendant no.1 regarding payment of rent. The respondents made illegal constructions and altered original shape of disputed property/shop and they were liable to be evicted from the disputed property. Therefore, learned First Appellate court has recorded concurrent finding, regarding period of lease, as recorded by the trial Court. Therefore, registration of lease in favour of defendant/ respondents in accordance with Section 17 of Registration Act was not compulsorily required to be registered.
The substantial question law Serial No. "H" is hereby accordingly answered and decided.
45. In the case of Thulasidhara v. Narayanappa, (2019) 6 SCC 409 the Hon'ble Supreme Court has held as under:
"7.1. At the outset, it is required to be noted that by the impugned judgment and order [Narayanappa v. Rangamma, 2007 SCC OnLine Kar 737] , in a second appeal and in exercise of the powers under Section 100 CPC, the High Court has set aside the findings of facts recorded by both the courts below. The learned trial court dismissed the suit and the same came to be confirmed by the learned first appellate court. While allowing the second appeal, the High Court framed only one substantial question of law which reads as under:
"Whether the appellant is the owner and in possession of the suit land as he purchased it in the year 1973, that is, subsequent to the date 23-4-1971 when Ext. D-1, partition deed, Palupatti is alleged to have come into existence?"
No other substantial question of law was framed. We are afraid that the aforesaid can be said to be a substantial question of law at all. It cannot be disputed and even as per the law laid down by this Court in the catena of decisions, the jurisdiction of the High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only with the second appeal involving a substantial question of law. The existence of "a substantial question of law" is a sine qua non for the exercise of the jurisdiction under Section 100 CPC.
7.2. As observed and held by this Court in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar [Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722], in the second appeal under Section 100 CPC, the High Court cannot substitute its own opinion for that of the first appellate court, unless it finds that the conclusions drawn by the lower court were erroneous being:
(i) Contrary to the mandatory provisions of the applicable law;
or
(ii) Contrary to the law as pronounced by the Apex Court;
or
(iii) Based on inadmissible evidence or no evidence.
It is further observed by this Court in the aforesaid decision that if the first appellate court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in the second appeal. It is further observed that the trial court could have decided differently is not a question of law justifying interference in second appeal.
7.3. When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in Ishwar Dass Jain v. Sohan Lal [Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434] . In the aforesaid decision, this Court has specifically observed and held: (SCC pp. 441-42, paras 10-13) "10. Under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so.
11. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. ...
12. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. ...
13. In either of the above situations, a substantial question of law can arise."
In the case of Gurnam Singh v. Lehna Singh, (2019) 7 SCC 641 the Hon'ble Supreme Court has held as under:
"13.1.The suspicious circumstances which were considered by the learned trial court are narrated/stated hereinabove. On reappreciation of evidence on record and after dealing with each alleged suspicious circumstance, which was dealt with by the learned trial court, the first appellate court by giving cogent reasons held the will genuine and consequently did not agree with the findings recorded by the learned trial court. However, in second appeal under Section 100 CPC, the High Court, by the impugned judgment and order has interfered with the judgment and decree passed by the first appellate court. While interfering with the judgment and order passed by the first appellate court, it appears that while upsetting the judgment and decree passed by the first appellate court, the High Court has again appreciated the entire evidence on record, which in exercise of powers under Section 100 CPC is not permissible. While passing the impugned judgment and order, it appears that the High Court has not at all appreciated the fact that the High Court was deciding the second appeal under Section 100 CPC and not first appeal under Section 96 CPC. As per the law laid down by this Court in a catena of decisions, the jurisdiction of the High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only when the second appeal involves a substantial question of law. The existence of "a substantial question of law" is a sine qua non for the exercise of the jurisdiction under Section 100 CPC. As observed and held by this Court in Kondiba Dagadu Kadam [Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 SCC 722] , in a second appeal under Section 100 CPC, the High Court cannot substitute its own opinion for that of the first appellate court, unless it finds that the conclusions drawn by the lower court were erroneous being:
(i) Contrary to the mandatory provisions of the applicable law;
or
(ii) Contrary to the law as pronounced by the Supreme Court;
or
(iii) Based on inadmissible evidence or no evidence.
It is further observed by this Court in the aforesaid decision that if the first appellate court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in second appeal. It is further observed that the trial court could have decided differently is not a question of law justifying interference in second appeal."
46. Hon'ble Supreme Court in State of M.P. v. Dungaji, (2019) 7 SCC 465 has propounded regarding interference by High Courts in exercising of power under Section 100 C.P.C. as follows:
"10. Now, so far as the impugned judgment and order [Dungaji v. State of M.P., Second Appeal No. 580 of 2003, order dated 29-10-2010 (MP)] passed by the High Court declaring and holding that the marriage between Dungaji and Kaveribai had been dissolved by way of customary divorce, much prior to the coming into force the provisions of the 1960 Act and therefore after divorce, the property inherited by Kaveribai from her mother cannot be treated to be holding of the family property of Dungaji for the purposes of determination of surplus area is concerned, at the outset, it is required to be noted that as such there were concurrent findings of facts recorded by both the courts below specifically disbelieving the dissolution of marriage between Dungaji and Kaveribai by way of customary divorce as claimed by Dungaji, original plaintiff. There were concurrent findings of facts recorded by both the courts below that the original plaintiff has failed to prove and establish that the divorce had already taken place between Dungaji and Kaveribai according to the prevalent custom of the society. Both the courts below specifically disbelieved the divorce deed at Ext. P-5. The aforesaid findings were recorded by both the courts below on appreciation of evidence on record. Therefore, as such, in exercise of powers under Section 100 CPC, the High Court was not justified in interfering with the aforesaid findings of facts recorded by both the courts below. Cogent reasons were given by both the courts below while arriving at the aforesaid findings and that too after appreciation of evidence on record. Therefore, the High Court has exceeded in its jurisdiction while passing the impugned judgment and order in the second appeal under Section 100 CPC.
11. Even on merits also both the courts below were right in holding that Dungaji failed to prove the customary divorce as claimed. It is required to be noted that at no point of time earlier either Dungaji or Kaveribai claimed customary divorce on the basis of divorce deed at Ext. P-5. At no point of time earlier it was the case on behalf of the Dungaji and/or Kaveribai that there was a divorce in the year 1962 between Dungaji and Kaveribai. In the year 1971, Kaveribai executed a sale deed in favour of Padam Singh in which Kaveribai is stated to be the wife of Dungaji. Before the competent authority neither Dungaji nor Kaveribai claimed the customary divorce. Even in the revenue records also the name of Kaveribai being wife of Dungaji was mutated. In the circumstances and on appreciation of evidence on record, the trial court rightly held that the plaintiff has failed to prove the divorce between Dungaji and Kaveribai as per the custom.
12. At this stage, it is required to be noted that before the competent authority, Kaveribai submitted the objections. Before the competent authority, she only stated that she is living separately from Dungaji and Ramesh Chandra, son of Padam Singh, has been adopted by her. However, before the competent authority neither Dungaji nor Kaveribai specifically pleaded and/or stated that they have already taken divorce as per the custom much prior to coming into force the 1960 Act. Therefore, as rightly observed by the learned trial court and the first appellate court only with a view to get out of the provisions of the Ceiling Act, 1960, subsequently and much belatedly, Dungaji came out with a case of customary divorce. As rightly observed by the learned trial court that the divorce deed at Ext. P-5 was got up and concocted document with a view to get out of the provisions of the Ceiling Act, 1960. As observed hereinabove, the High Court has clearly erred in interfering with the findings of facts recorded by the courts below which were on appreciation of evidence on record."
47. In S.V.R.Mudaliar (Dead) by Lrs. and Ors. Vs. Rajabu F.Buhari (Mrs) (Dead) by Lrs. and Ors. AIR 1995 SC 1607, the Court in paras 14 and 15 of the judgment has upheld the contention that though the appellate court is within its right to take a different view on the question of fact, but that should be done after adverting to the reasons given by trial court in arriving at the findings in question. Appellate Court before reversing a finding of fact has to bear in mind the reasons ascribed by Trial Court. Court relied and followed earlier decision of Privy Council in Rani Hemant Kumari Vs. Maharaja Jagadhindra Nath, 10 CWN 630 and in para 15 of the judgment said:
"There is no need to pursue the legal principle, as we have no doubt in our mind that before reversing a finding of fact, the appellate court has to bear in mind the reasons ascribed by the trial court. This view of ours finds support from what was stated by the Privy Council in Rani Hemant Kumari Vs. Maharaja Jagadhindra Nath, (1906) 10 Cal.W.N. 630, wherein, while regarding the appellate judgment of the High Court of judicature at Fort William as "careful and able", it was stated that it did not "come to close quarters with the judgment which it reviews, and indeed never discusses or even alludes to the reasoning of the Subordinate Judge."
Following the above decision Hon'ble B.L.Yadav, J in Smt. Sona Devi Vs. Nagina Singh and Ors. AIR 1997 Patna 67 observed that whenever judgment of Appellate Court is a judgment of reversal, it is the primary duty of Appellate Court while reversing the findings of Trial Court to consider the reasons given by Trial Court and those reasons must also be reversed. Unless that is done, judgment of lower Appellate Court cannot be held to be consistent with the requirement of Order XLI, Rule 31, which is a mandatory provision.
48. The above view has also been followed recently in Jaideo Yadav Vs. Raghunath Yadav & Anr., 2009(3) PLJR 529 wherein the Court said that Trial Court recorded its findings but lower Appellate Court had not reversed the said findings and rather on the basis of some findings of its own, title appeal was allowed by lower Appellate Court without appreciating findings of Trial Court on the concerned issue. The court then said :
"The law is well settled in this regard that where the judgment of the lower appellate court is a judgment of reversal it is primary duty of the appellate court to consider the reasons given by the trial court and those reasons must also be reversed."
49. This court has also followed the same view in Doodhnath and another Vs. Deonandan AIR 2006 Allahabad 3. Recently this view has also been followed in Second Appeal No. 47 of 2015, Awadh Narayan Singh Vs. Harinarayan, decided on 22.1.2015.
50. On the basis of above discussions and exposition of law of Hon'ble Supreme Court and this Court, impugned judgement dated 27.03.2001 can not sustain. Learned First Appellate court has recorded misconceived and perverse finding regarding notice dated 03.08.1993 sent under Section 106 Transfer of Property Act, 1882 by the plaintiff to the respondents that it was defective and invalid.
51. The impugned judgment and order dated 27.03.2001 passed in Civil Appeal No. 6 of 2001: Ganesh Prasad Mishra and others Vs. Radha Krishna Ji Mandir, Kamlapur, is hereby set aside and the judgment and order dated 19.12.2000 delivered by the learned Court of Civil Judge (Junior Division), Biswan, Sitapur in Civil Suit No. 17 of 1994 (Radha Krishnaji Virajman Mandir, Kamlapur Vs. Ganesh Prasad Master and another) is hereby upheld and affirmed and restored.
52. The second appeal is accordingly allowed.
53. The record of trial court and First Appellate Court be sent back.
54. The copy of judgment be sent to the trial Court for compliance.
Order Date :- 18.11.2019 Arvind