Allahabad High Court
Rajeev Shukla vs Dr. Rajendra Kumar Agrawal And Another on 11 January, 2019
Equivalent citations: AIR 2019 (NOC) 629 (ALL), AIRONLINE 2019 ALL 130, 2019 (3) ALJ 71, (2019) 134 ALL LR 672, (2019) 144 REVDEC 394, (2019) 1 ALL RENTCAS 334, (2019) 1 ALL WC 724, 2019 (3) ADJ 63 NOC
Author: Sangeeta Chandra
Bench: Sangeeta Chandra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED ON 19.07.2018 DELIVERED ON 11.01.2019 Case :- S.C.C. REVISION DEFECTIVE No. - 39 of 2018 Revisionist :- Rajeev Shukla Opposite Party :- Dr. Rajendra Kumar Agrawal And Another Counsel for Revisionist :- Sudeep Harkauli Counsel for Opposite Party :- Shailendra Jaiswal Hon'ble Mrs. Sangeeta Chandra,J.
1. This SCC Revision has been filed by the revisionist praying for quashing of the order dated 11.05.2018 passed by the Additional District Judge, Court No. 10, Allahabad in J.S.C.C. Case No. 29 of 2013 (Dr. Rajendra Kumar Agrawal Vs. Rajeev Shukla.
2. I have heard learned Senior Counsel Sri Shashi Nandan assisted by Sri Sudeep Harkauli for the petitioner Rajeev Shukla and Sri Shailendra Jaiswal appearing for the respondent.
3. The facts as relevant for decision of the controversy are being given herein below:-
4. The plaintiff-respondent instituted J.S.C.C. case for eviction of the defendant-respondents and for arrears of rent and damages as mentioned in the plaint. It was the case of the plaintiff-respondent that he was owner and landlord of the house No. 58/25, Moti Lal Nehru Road, Allahabad on which there were four flats constructed. The defendant-revisionist was tenant of Flat No. 4 which he had taken on lease agreement initially in June, 2005 at the rate of Rs. 5,500/- per month for a period of 11 months. The lease agreement provided that after 11 months if the parties agreed, the lease could be extended for a further period of 11 months with increase in rent @ 10 per cent of the original.
5. The lease rent was, thus, increased from time to time and after every 11 months at such 10 per cent After a period of three years as mentioned in the original lease document, the lease agreement expired and a fresh lease was signed on 01.06.2010 for a period of 11 months with rent agreed @ Rs. 8,000/- per month.
6. The flat taken by the revisionist on lease consisted of three bed rooms with attached bath rooms in two rooms, a large drawing cum dinning room, servants room/space, a covered verandah and a balcony, terrace, a large garage with fittings and fixtures including four ceiling fans and four tube lights with fittings. There was also separate boring and water supply pump fitted to provide water to all four flats besides water supply connection from Nagar Nigam. The maintenance of the water lifting pump with boring in the premises was under the joint responsibility of all the tenants of the four flats.
7. The lease period of 11 months having expired, another lease agreement was signed on 1st of June, 2011 for a monthly rent of Rs.8,500/- per month for a period of 11 months. It was mentioned in the said lease agreement thus ― "After the period of 11 months if the lessee continues to occupy the premises in question, the rent shall automatically be enhanced and it will be Rs. 9,000/- per month from 1st of June, 2012 for a further period of 11 months only." Besides the rent that was being charged from the defendant-respondent as per the lease agreement, the electricity charges, and water charges were to be paid by the tenant directly to the authorities concerned.
8. Before the period of 11 months expired on 30.04.2013 the plaintiff-respondent came to know that despite repeated reminders the tenant had not deposited the water charges amounting to Rs. 20,434/- in the Jal Sansthan. A notice was sent through Advocate on 25.04.2013 asking the revisionist to deposit the dues to the Jal Sansthan as aforesaid and that the landlord did not wish to further continue the tenancy after the period of lease expired on 30.04.3013.
9. The revisionist-tenant also gave a reply on 29.04.2013 acknowledging the receipt of notice dated 25.04.2013 but at the same time disputed that any amount was due as water charges to the Jal Sansthan. He alleged that he has deposited the water charges as were due to the Jal Sansthan on two occasions and mentioned cheque numbers of the amount so deposited. There was no reply, however, to the specific statements in the said legal notice that the lease agreement was due to expire on 30.04.2013 and the landlord did not wish to continue the tenancy with the revisionist.
10. The plaintiff further stated in the plaint that a fresh notice was given to the tenant on 03.05.2013 again through his Advocate asking the revisionist-tenant to vacate the premises and deliver the vacant possession thereafter within a period of 30 days as the lease had already expired on 30.04.2013 and in case of failure to do so, the tenant would be liable to pay damages at the rate of Rs. 5,000/- per day.
11. The tenant on receipt of notice served personally upon him on 07.05.2013 sent a Cheque No. 00940 dated 01.05.2013 drawn on Allahabad Bank, Katra Branch of Rs. 9,000/- and also sent a blank paper in the envelope. The landlord apprehending some mischief being planned by the tenant, again, sent a legal notice through his Advocate on 14.05.2013 wherein the Advocate clearly stated the Cheque dated 01.05.2013 of Rs. 9,000/- had not been encashed by the landlord and was in the safe keeping of the Advocate in his office, which could be collected from his office at any time as the tenancy had expired on 30.04.2013 and notice of determination of tenancy had been given by the landlord earlier.
12. The revisionist-tenant initially filed a written statement denying the contents of the plaint altogether alleging that the plaintiff-respondent was not owner of the building. It was also stated that, in fact, there was no building with No. 58/25/4 and an incorrect address has been shown in the notice. Therefore, the same was not served upon the tenant. The plaintiff-respondent was not entitled to recover any amount from the defendant-tenant and no cause of action for the suit had arisen nor the Court had any jurisdiction to try the suit. In additional pleas in the written statement it was stated by the tenant that initially the number of the building was 4/1, Village Hasimpur, Pargana Sadar, District Allahabad. It was built on Estate land/Nazul land and was numbered again as 15, Moti Lal Road, Allahabad. Later on, it was renumbered as 25, Moti Lal Nehru Road, Allahabad and lastly, as 58/25, Moti Lal Nehru Road, Allahabad. There was no such building numbered as 58/25/4 as alleged in the plaint.
13. It is also stated that the original bungalow was situated on government property and the State Government was the proper and necessary party to the suit. The plaintiff-respondent was neither owner nor the landlord and there was no relationship of landlord and tenant and that the defendant had deposited all the amount of water tax for the building in question.
14. A detailed replication was filed by the landlord mentioning therein the contents of lease agreement singed on 01.06.2005, 01.06.2010 and 01.06.2011, giving the details of numbers of Cheques by which the rent was deposited by the tenant-revisionist, also giving the details of earlier tenant Mr. Nagar leaving behind unpaid electricity charges amounting to Rs. 66,611/- which the tenant-revisionist had got settled with the Electricity Department by using his good offices, stating that the tenant deposited Rs. 38,077/- and Rs. 26,567/- as electricity charges. The details of letters sent by the tenant to the plaintiff-respondent demanding the amount that was due against the occupation of Mr. Nagar were mentioned. It was also clarified that the building in question was given the municipal No. 58/25 by Nagar Nigam and since the tenant-revisionist was living in West Flat No. 4, therefore in the plaint it was written as house No. 58/25/4, Moti Lal Nehru Road, Allahabad.
15. The tenant-revisionist filed an amended written statement under Order VI Rule 17. A copy of the amended written statement has been filed as Annexure - 5 to the application for stay in this revision. A perusal thereof would show that the tenant admitted that notice dated 25.04.2013 was served upon him, which according to him was illegal and therefore, it was denied.
16. It was also mentioned that Bungalow No. 58/25, Moti Lal Nehru Road, Allahabad was Government Estate land earlier numbered as plot Nos. 9 and 16, Mauja Baghara, Jahiruddin and alleged that there was no lease signed between the government and the plaintiff-respondent and that the State Government being the owner of the property in question was a necessary and proper party to the suit.
17. It was alleged that the plaintiff-respondent was neither owner nor landlord of the property in question. He was a trespasser as there was no subsisting lease with the government of the property in question.
18. It was further alleged in the amended written statement that the tenant-revisionist had deposited Rs. 5,498 as water charges on 23.02.2012 with Allahabad Jal Sansthan. True copies of the receipts were filed by the tenant alleging that no water charges were due. It was also alleged that the defendant had never been in default or in arrears of rent and had been depositing the same through Cheque and since there was no water charge of Rs.20,434/- as alleged in the notice of the landlord due to be paid, there was no cause of action arising for filing of the suit for eviction. It was further alleged that in the notices that were sent by the landlord there was no mention of determination of tenancy.
19. A replication to the amended written statement was thereafter filed by the plaintiff-respondent again reiterating that the lease agreement was only for a period of 11 months and the same having expired, the tenancy stood automatically terminated and there was no requirement to issue specific legal notice determining the tenancy. During the pendency of the suit Dr. Rajendra Kumar Agrawal having died, he was substituted by respondent No. 1/1 his wife Smt. Nisha Agrawal. The oral statement of the plaintiff-respondent No. 1/1 was recorded where more or less the contents of the plaint, the replication and the revised replication to the amended written statement were reiterated. It was stated that the last tenancy agreement was signed between the parties on 01.06.2011 for a period of 11 months, which was extendable for another period of 11 months only with the increase of rent at the rate of 10 per cent. Thus, the tenancy automatically expired on completion of 11 months on 30.04.2013. The issuance of notice for payment of water charges on 25.04.2013 and of notice dated 03.05.2013 for delivering the peaceful vacant possession of the property were reiterated. It was also explained as to how the plaintiff-respondent had become the owner of the property through a family agreement on the death of the predecessor in interest. The payment of rent through cheque by the defendant was reiterated and the amount of rent was also clarified. At the time of initial rent agreement having been entered into between the parties i.e. on 01.06.2005 the rent was Rs. 5,500/- per month. It was increased to Rs.6,050/- on 01.06.2007 and thereafter increased to Rs. 6,655/- per month w.e.f. 01.06.2010 and to Rs. 8,500/- per month w.e.f. 01.06.2011. The last such agreement dated 01.06.2011 stated that in case the tenancy was agreed to be continued, the rent w.e.f. 01.06.2012 for 11 months only would by Rs. 9,000/- per month. The last cheque encashed by the landlord was dated 09.04.2013, a copy of the bank statement of account was filed as documentary evidence. The cheque of Rs. 9,000/- dated 01.05.2013 sent by the tenant had not been encashed and a reply through advocate was sent on 14.05.2013 as aforesaid.
20. It was reiterated in the oral statement of the plaintiff-respondent recorded on 12.10.2015 that even if the ownership of the property in dispute was being disputed, it could not be disputed that the defendant had entered into tenancy agreement with the landlord and was in possession of the property in dispute on the basis of such lease agreement and had been paying rent, electricity charges and water charges for use and occupation of the flat in question, thus the relationship of landlord and tenant had been established.
21. In the oral statement of defendant there is an admission on his part of execution of lease agreement and also of paying rent through cheque and also of depositing water charges in Allahabad Jal Sansthan for occupation of the flat in question. But there is an insistence that the landlord is a trespasser and not the owner of the property as the said property was allegedly owned by the government. In the oral statement the tenant admitted that he was an Advocate practising mainly on the Taxation Side and that he did not have knowledge that if he disputed the title of the landlord over the property of which he was a tenant, it would be a ground of termination of the tenancy automatically. A true copy of the oral statement has been filed at page Nos. 138 and 139 of the application for stay filed along with this revision.
22. Challenging the order passed by the Trial Court decreeing the suit Learned counsel for the petitioner has based his argument on Section 106 of the Transfer of Property Act and it has been argued by him that the lease agreement that was lastly signed between the parties was from 01.06.2011 up to 30.04.2012 with a condition that if the lessee shall continue to occupy the premises in question, then the rent shall be automatically enhanced from Rs.8500/- to Rs.9000/- with effect from 1 June, 2012 for a further period of 11 months i.e. only up to 30.04.2013.
23. Learned counsel for the petitioner says that under Section 106 of the Transfer of Property Act, after the lease agreement of 01.06.2011 expired on 30.04.2012, no fresh agreement was signed and the lease became a month to month lease and required a 15 days notice to terminate. Such notice was never given by the landlord. He has referred to judgement rendered by this Court in AIR 1963 Allahabad, 581; Ahmad Ali v. Mohammad Jamaluddin, which held that a notice terminating the tenancy may include a demand for possession but a notice only demanding possession cannot be interpreted as a notice terminating the tenancy. The language of notice terminating the tenancy should clearly state that the tenancy is being terminated.
24. Learned counsel for the petitioner has also argued that from a perusal of the lease agreement dated 01.06.2011, it appears to be a lease agreement of more than 12 months and such a lease agreement is compulsorily registrable. He has relied upon a judgement rendered by this Court in the case of Punjab National Bank v. Ganga Narain Kapur; AIR 1994 Allahabad, 221.
25. In paragraph nos. 55 and 56 of the said judgement, Section 106 and 107 of the Transfer of Property Act, have been considered by this Court and it has been observed that all leases of immovable property are deemed to be leases on month to month basis and if any person alleges a particular lease to be for fixed term, he has to prove the same by legal, valid and reliable evidence. A lease for a fixed term or a lease for a term of more than one year can be made only by registered instrument. This Court observed that if the legislature had provided a condition to be met under Section 107 of the Transfer of Property Act, in terms of the law settled by the Supreme Court in the case of State of U.P. Vs. Singhara Singh, AIR 1964 SC 358 the agreement should have been registered.
26. The learned Senior Counsel has also placed reliance upon a judgement rendered in State of U.P. and others v. Lalji Tandon, AIR 2004 SC 32 and paragraph nos. 13, 18 and 19 have been referred to say that in case of renewal a fresh lease has to be signed but if it is not signed and it becomes a case of extension, then the terms of the original lease shall govern the contract. The terms of lease dated 01-06-2011 clearly provided for giving of a three months' notice in writing which was not done. It has been argued that the learned Trial Court failed to notice the relevant provision of Section 106 and 107 of the Transfer of Property Act and has wrongly come to a conclusion that the lease agreement dated 01.06.2011 was for a fixed term which stood automatically terminated and, therefore, no notice was required to be given at all under Section 106 of the Transfer of Property Act, terminating the tenancy.
27. Learned counsel for the respondent on the other hand relied upon the language of the agreement dated 01.06.2011 and has read out paragraph 1 thereof which is to the effect that if the lessee continued to occupy the premises in question after 30.04.2012 then the lease shall be extended with effect from 1st of June, 2012 for a period of 11 months only. The lessee continued to occupy the premises and it was an extension that was contingent upon giving enhanced rent and also that it was only with effect from 01.06.2012 up to 30.04.2013. He has relied upon judgement rendered by this Court in Satya Vijay v. State of U.P. and Others; (Writ C No. 38625 of 2011 decided on 6th of April, 2012) and according to him the lease agreement dated 01.06.2011 was, a composite agreement, one agreement was for giving out the flat in question on rent @ Rs.8,500/- per month for a period of 11 months up to 30.04.2012, the other part related to "an agreement to let out" with effect from 01.06.2012 up to 30.04.2013.
28. Learned counsel for the respondent has also read out the language of the notice given to the revisionist by the landlord on 24.04.2013 which was to the effect that the lease was going to expire on 30.04.2013 and the landlord did not wish to continue the tenancy and, therefore, the tenant was asked to deliver the vacant possession on 01.05.2013. He has also read out the notice dated 03.05.2013 which is to the effect that the tenancy stood already terminated on 30.04.2013 on expiry of fixed term as mentioned in the lease deed. Damages were claimed for continued possession after 30.04.2013 from the tenant.
29. Learned counsel for the respondent has submitted that the mention in the lease document of either party having the option to terminate the lease on giving three months' notice in writing relates to a situation where before the expiry of 11 months, any of the parties wished the tenanted premised to be vacated and it would not apply in such condition where the lessee was allowed to continue in possession for 11 months as provided in the agreement.
30. Learned counsel for the petitioner in rejoinder submitted that from a perusal of the lease agreement dated 01.06.2011, it is evident that the landlord wished to defraud the exchequer and avoid payment of stamp duty by making to an agreement to let out which is not necessarily registrable.
31. Having heard the learned counsel for the parties and having gone through the judgement impugned, this Court finds that the learned Trial Court on exchange of pleadings and on filing of documentary evidence from both the sides framed the following six issues:-
Whether there was a relationship of landlord and tenant between the plaintiff and the defendant?;
Whether the lease agreement dated 01.06.2011 created tenancy for a fixed period and whether option for extension of tenancy by the tenant on his own existed in the lease agreement?;
Whether notice under Section 106 of the Transfer of Property Act was necessarily to be given for determination of such tenancy and if so, whether the notice that was given by the plaintiff-respondent was a valid notice?;
Whether denial of title of the landlord to the property in question created a complicated title dispute and hence Small Cause Court had no jurisdiction under Section 23 (1) of the PSCC Act to consider the same?;
Whether there was any water charge/sewerage tax due on the property in question?; and Whether the relief claimed by the plaintiff-respondent could be granted to him?
32. With regard to the relationship of landlord and tenant the lease agreement and the various correspondences between the plaintiff-respondent and the defendant were quoted and considered in the order under revision. Also the copy of statement of account issued by Bank of Baroda of Dr. Rajendra Kumar Agrawal and deposit of Rs. 8,500/- and thereafter, Rs. 9,000/- per month through cheques were considered and the Trial Court came to a valid conclusion that there was a relationship of landlord and tenant between the parties.
33. With regard to determining the issue No. 2, the language of lease agreement dated 01.06.2005, filed as Paper No. 72 C/8-9, the language of lease agreement dated 01.06.2010 filed as Paper No. 72C/2-4 and the language of lease agreement dated 01.06.2011 filed as Paper No. 72C/5-6 have all been quoted in the judgment impugned and thereafter considered.
34. The learned Trial Court has quoted paragraph - 1 of the lease agreement dated 01.06.2011 which is relevant and therefore, is being quoted herein below:-
"That the lessee has taken on rent the first floor west flat bearing municipal no. 25/4 Moti Lal Nehru Road, Allahabad from Ist June 2010 on monthly rent of Rs.8500/- for a period of 11 months. But however if the lessee continues to occupy the premises in question, the rent shall automatically be enhanced and it will be 9000 rupees (Nine thousand) from 1st June 2012 for further eleven months only."
35. It is evident that last such lease agreement clearly states that w.e.f. 1st of June, 2012 the rent would be Rs. 9,000/- per month and the tenancy would be for a further period of 11 months only. It is evident that there was no provision for extension of tenancy at the option of the tenant or even that of the landlord beyond 11 months that admittedly began on 1st of June, 2012 and ended on 30.04.2013.
36. The earlier lease agreements can only be said to be documentary evidence proving the relationship of landlord and tenant between the parties. It is the last lease agreement dated 01.06.2011 and its language which is relevant for determining whether the tenancy was a fixed term tenancy or whether it could be extendable creating a month to month tenancy that could be determined only through service of a valid notice under Section 106 of the T.P. Act for determination of the tenancy.
37. The learned Court below has placed reliance upon the decision of the Hon'ble Supreme Court in State of U.P. Vs. Lalji Tandon (Dead), AIR 2004 SC 32, and the judgment of Delhi High Court in Smt. Dr. P.S. Vedi Vs. The Project and Equipment Corporation of India Limited, AIR 1994 Delhi 255, as also the other judgments of the Supreme Court that once the term of lease expired by efflux of time the tenancy determined automatically. The tenant in possession is a tenant 'at sufferance'. The possession is not lawful and such possession can only continue until eviction in due course of law. Mere continuance in possession after determination of lease did not amount to "holding over". After expiry of fixed period of term of the tenancy, even if the tenant remained in possession and depositted the rent in bank, it cannot be deemed to be a consent for extension of lease by the lessor. Thus, in the present case, as the landlord has adopted the legal recourse throughout to evict the revisionist-tenant, there did not exist any holding over.
38. The learned Court below has considered the contents of the legal notices dated 25.04.2013, 03.05.2013 and 14.05.2013 thereafter, filed as Paper No. 7C/3, 7C/5 and 7C/8 respectively and the language thereof. In the first notice there is a clear indication ― "That my client is not interested to have you as tenant after expiry of period of tenancy i.e. from 01.05.2013". In the subsequent notice also the language is specific ― "That you have taken the said flat on 1st June, 2012 for 11 months and your tenancy has expired on 30.04.2013"; "That from 01.05.2013 your occupation is unauthorized and against the law"; and "Now this notice is being given to pay and vacate and handover the vacant possession of the accommodation in your tenancy within thirty days from the receipt of this notice."
39. The learned Trial Court rightly held that the notices being specific and stating that the tenancy was only up to 30.04.2013 and had expired thereafter and demanding vacant and peaceful possession of the accommodation within 30 days of receipt of notice, were valid notices issued under Section 106 of the T.P. Act and the suit for eviction based thereupon could not be said to be not maintainable.
40. With regard to the bar created under Section 23 (1) of the Provisional Small Cause Court Act, the tenant had relied upon the judgment rendered by the Hon'ble Supreme Court in Bhagmani Devi Vs. VIIIth Additional District Judge, Varanasi and another, 2012 (volume-1) AWC 179 to contend that the title of the property was in dispute as it was built up on plot Nos. 9 and 16 of Mauja Baghara, Jahiruddin, which was a government Estate land. It has also been stated by the revisionist that the plaintiff had applied for sanction of plan to construct Group Housing Flats on Plot No. 58/25, Moti Lal Nehru Road, Allahabad and the title being disputed by the tenant, a letter had been sent on 12.08.2005 by the Allahabad Development Authority to the SDM, Sadar who informed the OSD, Allahabad Development Authority after examination of record and due inquiry by his letter filed as Paper No. 54 C/3, that it was recorded as N.Z.A. in Category 15(2), as Abadi, Road, Railway etc. situated at Village Baghera, Jahiruddin, Tehsil Sadar, Allahabad and recorded as Govt. Estate land in Revenue Records. On the basis of the said letter, the tenant tried to dispute the title of the landlord and attempted to raise an objection to the jurisdiction of the learned Court below under Section 23 of the Act.
41. The learned Court below has considered this aspect of the matter in great detail in the judgment impugned before this Court and has rejected the the said objection of the tenant after carefully going through the papers produced by the tenant, and the following papers produced by the plaintiff:-
Sale Deed dated 20.01.1905, paper No. 21C/2-3; Partition Deed dated 01.04.1963, paper No. 21C/4-15; and Khasra of Nagar Nigam, paper No. 23C.
Paper No. 78C/1, a certified copy of letter dated 29.02.2016 sent by Secretary, Allahabad Development Authority, Allahabad to the SDM, Sadar Allahabad;
Paper No. 78C/2, a certified copy of report of Lekhpal dated 12.07.2016 in pursuance of the letter dated 29.02.2016 of the Secretary, ADA;
42. None of the aforesaid documents mentioned in the order impugned have been produced before this Court, nor any specific plea has been made in the Revision questioning the veracity of the above mentioned documents and therefore, this Court being aware of the limited jurisdiction of revision, has no option but to rely upon the findings recorded by the leaned Court below on the basis of the documents aforesaid.
43. The learned Court below has rightly taken into account the past history of the building which had been constructed on vacant piece of land of 7508 sq. meters on which sanction had been granted by the ADA for Group Housing/Flats which was later numbered as Plot No. 38/25, Moti Lal Nehru Road, Allahabad.
44. The learned Trial Court has also considered the binding precedents of this Court and of the Supreme Court to observe that Section 23 does not make it obligatory on the Court of Small Causes to invariably return the plaint once the question of title is raised by a tenant. In suits involving the questions of title the Small Cause Court has a discretion either to decide the question of title or to act under this Section and return the plaint. It is not always bound to return the same. It is only when the Judge, Small Cause Court Act is satisfied that the question is so intricate that it should not be decided summarily that the plaint should be returned for presentation before the proper Court.
45. The learned Trial Court has referred to the Sale Deed dated 24.01.1908 whereby the plot Nos. 9 and 16 were bought by the predecessor of Dr. Rajendra Kumar Agrawal namely Lal Ram Narayan Lal From Aghor Nath Mukherjee and the inheritance of the property from Lala Ram Narayan Lal by his son Beni Prasad who in turn bequeathed the same to his sons and the sons entered into a family partition on 01.04.1963. The sale deed dated 24.01.1908 and the Partition Deed dated 01.04.1963 having been filed and it being not disputed by the tenant that he had entered into a lease agreement with the landlord, the learned Trial Court rightly came to the conclusion that the relationship of landlord and tenant being established, there was no requirement to enter into the question of title and for returning the plaint under Section 23/1 of the PSCC Act. Besides, the plot in question being recorded as Abadi land and not as Government State Land in the Khatauni, the question of title became irrelevant to the controversy.
46. With regard to the issue whether any water charges/sewerage tax was due, the learned Trial Court has considered the documentary evidence as also the oral statements of the plaintiff-respondent and defendant-tenant regarding the notice being sent by Allahabad Jal Sansthan of Rs. 20,434/- being due on only one Flat i.e. Flat No. 58/25/4. For the past several years water charges/sewerage tax were not being deposited by the erstwhile tenant and by the defendant, thus, the total amount was mentioned as arrears in the notice sent by the Allahabad Jal Sansthan. The learned Trial Court considered the Bill No. AID 131521 dated 07.12.2012 issued by the Allahabad Jal Sansthan and came to the conclusion that at the time of issuance of notice on 25.04.2013 by the landlord Rs.20,434/- was due as water charges/sewerage tax on the flat in question.
47. Having answered all five issues in favour of the plaintiff-respondents on the basis of the documentary evidence and analysis of oral statements of the plaintiff-respondent and the defendant-tenant the learned Trial Court also found that the tenancy had expired on 30.04.2013 with efflux of time as such w.e.f. 01.05.2013 the defendant-tenant was continuing in possession of the flat in question as a tenant at sufferance. After the notice being issued, damages for continued and unauthorized occupation as claimed in the plaint of Rs. 500/- per day was due and was directed to be paid by the tenant as also Rs. 20,434/- as arrears of water charges and sewerage tax. The learned Trial Court decreed the suit with a direction that the amount as prayed for in the plaint be paid by the defendant and defendant-tenant should also handover vacant and peaceful possession of the property in question to Smt. Nisha Agrawal within one month from the date of order.
48. Having dealt with the facts as mentioned in the pleadings on record as also the judgment of the learned Trial Court, this Court does not find the argument raised by the learned Senior Counsel regarding the lease agreement dated 01.06.2011 being necessarily registrable as having created a tenancy of more than one year as tenable. The lease agreement, admittedly, was for a period of 11 months starting from 01.06.2011 and ending on 30.04.2012. In the event of continuance of tenant thereafter, the instrument of lease merely stated therein that the tenancy was extendable for a period of 11 months thereafter w.e.f. 1st June, 2011 which could be termed only as an "agreement to let out" as it was to come into effect only when a positive inclination in this regard was expressed both by the landlord and by the tenant. On the expiry of the fixed term of lease of 11 months as per the agreement the rate of rent was to be increased to Rs. 9,000/- per month and if the tenant wished to continue he could continue in possession of the property for another period of 11 months only. The lease agreement was in fact a composite document of lease and an agreement to let out.
49. The legal position in this regard has been very succinctly dealt with by a Coordinate Bench of this Court in Writ - C No. 38625 of 2011 in the judgment and order dated 6th of April, 2012 as has been relied upon by the learned counsel for the plaintiff-respondent, Shri Shailendra Jaiswal.
50. This Court finding no merits in the grounds taken for filing this revision, is also pained to observe that the tenant being an advocate of more than thirty five years standing has resorted to all kinds of pleas in frustrating the claim of landlord for vacant and peaceful possession of the property being delivered to him after determination of the lease through a valid legal notice. The landlord Dr. Agarwal died during the pendency of the suit and has been substituted by his widow. In the oral statement of the tenant, he had accepted that he was in possession of the property in question for almost two years before the first lease agreement was signed on 01.06.2005 between the parties. He continued in possession during the pendency of the litigation despite a specific clause in the lease agreement dated 01.06.2011 stating that the lease would continue with effect from 1st of June, 2012 for a further period of 11 months only. All kinds of legal complications were created in the trial of the suit by disputing the title/ownership of the property so that the plaint be returned under Section 23 (1) of the PSCC Act by the learned Trial Court. Even if the stand taken with regard to the ownership of Government Estate land lying with the Government alone is taken to be true, the fact that the plaintiff-respondent was the landlord had not been denied. The conduct of the tenant who entered into the property in question through the landlord and then turned around and questioned the title of the landlord so that the litigation could be prolonged, to continue with his possession over the property in dispute which admittedly is a very big flat situated in the heart of city of Allahabad, is deprecated.
51. Having found no merit in this revision, the same is dismissed.
52. As this Court has affirmed the order passed by the Trial Court, all benefits arising therefrom shall be available to the respondent landlady. Further, the revisionist is directed to pay Rs. 5,000/- per day as decreed by the Trial Court till he hands over the vacant and peaceful possession of the property in question to the landlady within one month from today.
Order Date:- 11.01.2019 LBY