Allahabad High Court
Manoj Kumar vs Suman Prakash on 4 October, 2018
Equivalent citations: AIRONLINE 2018 ALL 5042
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Case :- MATTERS UNDER ARTICLE 227 No. - 6808 of 2018 Petitioner :- Manoj Kumar Respondent :- Suman Prakash Counsel for Petitioner :- Rahul Agarwal Counsel for Respondent :- Abu Bakht Hon'ble Vivek Kumar Birla,J.
Heard Sri Rahul Agarwal, learned counsel for the petitioner and Sri P.K. Jain, learned Senior Advocate assisted by Sri Abu Bakht, learned counsel for the respondent.
Present petition has been filed for setting aside the order dated 8.8.2018, passed by the District Judge, Meerut in S.C.C. Revision No.34 of 2016, Manoj Kumar Vs. Suman Prakash and judgment and decree dated 28.7.2016, passed by Judge Small Causes Court, Meerut in S.C.C. Case No.26 of 2007, Suman Prakash vs. Manoj Kumar.
By the impugned judgment dated 28.07.2016 passed by the Judge Small Causes Court, Meerut, the S.C.C. suit filed by the plaintiff-respondent herein was allowed by the trial court. S.C.C. Revision filed by the tenant-petitioner herein against the same was dismissed by the lower revisional court vide impugned judgment dated 8.8.2018.
The S.C.C. suit was filed by Suman Prakash, plaintiff-respondent herein for rent and eviction with the allegation that notice dated 21.12.2006 served on the defendant-petitioner was received by him on 23.12.2006, but the same was not replied. It was further claimed that the shop in dispute was assessed for the first time by the Nagar Palika Parishad, Mawana in the year 1991 and as such the provisions of U.P. Act 13 or 1972 (hereinafter referred to as the Act) were not applicable. The suit was contested by the defendant-petitioner herein by filing written statement on the ground that, in fact, Suman Prakash HUF is the owner and landlord and Suman Prakash is the Karta of the same. It was claimed that since the property is of HUF, therefore, the suit filed by Suman Prakash in his personal capacity is not maintainable; the provisions of the Act are applicable in the shop in question as the shop was constructed prior to 1985 and it is incorrect that it was assessed for the first time in the Year 1991; it was claimed that since his father Atar Singh was the tenant in the shop which was in the shape of 'Dukariya' and only repair has been carried out by putting one cement linter after removing wooden "kariyan" and since the provisions of the Act are applicable, as such he is entitled for benefit of deposit made under Section 20(4) of the Act.
The trial court framed 7 issues. On issue no. 1 it was found that there is a landlord-tenant relationship between the parties and the suit was maintainable at the instance of Suman Prakash. On issue no.2 it was found that the defendant has committed a default in payment of rent. On issue no.3 it was found that rate of rent is Rs.500/- p.m. On issue no.4 it was found that the notice dated 21.12.2006 given under Section 106 of the Transfer of Property Act was duly received by the defendant on 23.12.2006 which contains his receiving on receipt paper no.8-Ga and as such there was valid service of notice. On issue no. 5 it was found that the map was sanctioned on 23.6.1987 and the first assessment of the building after construction of 12 shops was made in the year 1991. therefore, the provisions of the Act are not applicable. On issue no. 6 benefit of deposit made under Section 20 (4) of the Act was denied as it had already been found that the provisions of U.P. Act No.13 of 1972 are not applicable in the present case. On issue no.7 the plaintiff was found to be entitled for the relief claimed and accordingly, the suit was allowed.
S.C.C. Revision filed by the defendant-petitioner herein was dismissed by the lower revisional court affirming the judgment of the trial court.
Submission of Sri Rahul Agarwal, learned counsel for the petitioner is that the suit was filed by the plaintiff-respondent in his individual capacity whereas in replication as well as in his cross-examination Suman Prakash, PW-1 has admitted that it is the property of HUF and he is the Karta of the said HUF, hence once there is an admission to this effect, the suit was not maintainable at the instance of Suman Prakash in his individual capacity as there is vast difference between individual and HUF and the identity of the two are quite separate and distinct. He submits that HUF may file a suit however, in the present case the suit has not been filed by HUF but Suman Prakash has filed the suit in his personal capacity and not as Karta of HUF therefore the suit is not maintainable. He next submits that the alleged registered notice dated 21.12.2006 given under Section 106 of the Transfer of Property Act was never received by the tenant and his signatures on the receipt filed before the court below as paper no.8-Ga are forged. It was submitted that once the signatures on receipt paper no. 8-Ga have been denied by the tenant, the burden was on the plaintiff to prove the service of notice which he failed to discharge. Submission, therefore, is that there was no service of notice. He next submitted that the provisions of the Act are applicable in the present case inasmuch as father of the defendant was tenant in the shop and this one room shop was in the shape of 'Dukariya' and it was renovated by putting a cement linter only by removing the 'Wooden Kadiyan'. He submits that in the assessment of tax by the Nagar Palika Parishad for the year 1986-91, 'Dukariya' has been shown and thereafter, for the year 1991-97 the shop has been shown which indicates that the shop was in existence and is an old construction and therefore, it cannot be said that the shop was assessed for the first time in the year 1991 and as such the provisions of the Act are applicable in the present case. He further submits that since the provisions of the Act are applicable, therefore, the courts below have committed a mistake in not extending the benefit of Section 20(4) of the Act.
Submission, therefore, is that the impugned orders are arbitrary, perverse and are liable to be set aside. In support of his argument learned counsel for the petitioner has drawn attention to the cross-examination of P.W.1, Suman Prakash and cross examination of DW-1, Manoj Kumar, the defendant-petitioner herein and has taken me through the findings of the courts below extensively.
Per contra Sri P.K.Jain, learned Senior counsel for the respondent submitted that there is no dispute about the fact that the property belongs to HUF, however, it is also not in dispute that Suman Prakash himself, who is admittedly the Karta of HUF, for his own need has filed the present suit and as such, the suit was clearly maintainable. It was further submitted that the petitioner is admittedly a tenant in the shop in question and was admittedly paying rent to Suman Prakash, therefore, there is no dispute about the landlord-tenant relationship. In so far as the dispute regarding service of notice on the defendant-petitioner is concerned it is submitted that in paragraph 21 of the written statement only this much has been asserted that notice under Section 106 of the Transfer of Property Act is illegal and tenancy of the defendant is not terminated by that. He submitted that in absence of any pleadings regarding absence of service of notice the same cannot be agitated by the defendant by plainly stating that the signatures on the postal receipt are not his signatures. He submits that the receipt was filed in original before the court below and in case the petitioner was claiming the signatures on the receipt are not his signatures, the burden was on the defendant-petitioner to prove the same. He submitted that the statement of the defendant-petitioner DW-1 is not worth believed, inasmuch as, in paragraph 23 of the written statement he had stated that initially rate of rent was Rs.250/- per month but to avoid any dispute he is depositing rent @ Rs.500/- per month whereas, in his statement he had clearly stated that he had taken the shop for opening Medical Store on a rent @Rs.500/- per month. He submits that the defendant-petitioner herein has also admitted that the address given on registered post notice is correct he has no dispute with the Postman and he has never made complaint against the Postman regarding service of this registered post notice. Submission, therefore, is that the statement of the defendant-petitioner is not worth belief and there is no question of shifting of burden on the landlord to prove the service of notice. In so far as the applicability of the Act is concerned, he submitted that it is not in dispute that a substantial construction was made by demolishing the old building for which the map was got sanctioned in the year 1987 and thereafter the new construction was assessed for the first time in the year 1991. He submitted that in such view of the matter, it is proved by documentary evidence that the building is a new construction which was assessed for the first time in the year 1991 and as such the provisions of the Act are not applicable in the present case.
I have considered the rival submissions and perused the record.
On perusal of record, I find that the suit has admittedly been filed by Suman Prakash. It was admitted in the replication that the property is of HUF of which plaintiff-respondent is the Karta and he is entitled to file the present suit. It is also pertinent to note that no other person has come forward to claim the ownership or landlordship in the present case. The status of the defendant-petitioner herein as tenant is also not in dispute. It is settled law that in the rent control matters the landlord-tenant relationship is to be seen. It is also settled law that one co-owner is entitled to initiated the proceedings against the tenant. It may also be noticed that it is not a case of property dispute where filing of the suit on behalf of Karta or any other coparcener may be claimed to have material effect on the proceedings. Suffice to note that a coparcener is any of several people who share an inheritance.
In Black's Law Dictionary (Eighth Edition) "coparcener" is defined as "A person to whom an estate descends jointly, and who holds it as an entire estate: a person who has become a concurrent owner as a result of descent" and "coowner" is defined as "A person who is in concurrent ownership, possession, and enjoyment of property with one or more others; a tenant in common, a joint tenant, or a tenant by the entirety."
As per Legal Glossary (2001 Edition) "Karta" means (1) author; (2) manager; (3) principal.
Thus, broadly speaking a karta is a person who is a concurrent owner as a result of a descent and is managing the property as principal or say, manager for the benefit of all members of the HUF. Thus, his status, within the family may be different, if questioned by any coparcener but his status will be that of a concurrent owner or coowner.
In the rent control matters where the proceedings are summary in nature and only landlord-tenant relationship is to be seen. Thus, the law as applicable in a case of co-owner in rent control and eviction proceedings will prevail. A reference made be made to a decision of the Apex Court in Mohinder Prasad Jain vs. Manohar Lal Jain, 2006 (2)SCC 724, para 10 and 11, relevant extract of which are quoted as under:
"10. This question now stands concluded by a decision of this Court in Indian Umbrella Mfg. Co. v. Bhagabandei Agarwalla, 2004 (3) SCC 178 wherein this Court opined (SCC p.183 para 6):
"Having heard the learned counsel for the parties we are satisfied that the appeals are liable to be dismissed. It is well settled that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners. This principle is based on the doctrine of agency. One co-owner filing a suit for eviction against the tenant does so on his own behalf in his own right and as an agent of the other co-owners. The consent of other co- owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement. In the present case, the suit was filed by both the co-owners. One of the co-owners cannot withdraw his consent midway the suit so as to prejudice the other co-owner. The suit once filed, the rights of the parties stand crystallised on the date of the suit and the entitlement of the co- owners to seek ejectment must be adjudged by reference to the date of institution of the suit; the only exception being when by virtue of a subsequent event the entitlement of the body of co-owners to eject the tenant comes to an end by act of parties or by operation of law."
11. A suit filed by a co-owner, thus, is maintainable in law. It is not necessary for the co- owner to show before initiating the eviction proceeding before the Rent Controller that he had taken option or consent of the other co-owners. However, in the event, a co-owner objects thereto, the same may be a relevant fact. In the instant case, nothing has been brought on record to show that the co-owners of the respondent had objected to eviction proceedings initiated by the respondent herein..................................."
In the light of the admission of DW-1 Manoj Kumar, the defendant-petitioner herein that earlier he used to pay rent to mother of Suman Prakash and subsequently, he started paying rent to Suman Prakash, the suit was clearly maintainable as held by both the courts below.
A reference was also be made to judgment of Hon'ble Apex Court in the case of Boorugu Mahadev and sons and another vs. Sirigiri Narasing Rao and others, (2016) 3 SCC 343, para 18 whereof is quoted as under:
"It is also now a settled principle of law that the concept of ownership in a landlord-tenant litigation governed by Rent control laws has to be distinguished from the one in a title suit. Indeed, ownership is a relative term, the import whereof depends on the context in which it is used. In rent control legislation, the landlord can be said to be the owner if he is entitled in his own legal right, as distinguished from for and on behalf of someone else to evict the tenant and then to retain control, hold and use the premises for himself. What may suffice and hold good as proof of ownership in landlord-tenant litigation probably may or may not be enough to successfully sustain a claim for ownership in a title suit. (Vide Sheela v. Firm Prahlad Rai Prem Prakash (2002) 3 SCC 375). "
Insofar as the service of notice is concerned it was rightly pointed out by learned counsel for the respondent that only pleading in reply in respect of service of notice is contained in paragraph 21 of the written statement filed by the defendant-petitioner herein which contains no recital that the notice was not served on him or his signatures on the postal receipt are forged. In absence of any pleadings it was not open to the defendant-plaintiff to lead any evidence on this issue. Once the original receipt is on record with the admission of the DW-1 Manoj Kumar, the defendant-petitioner herein that the notice was sent on his correct address, the question of shifting of burden of landlord to prove the notice simply on a bald denial by the defendant in his statement which, in view of the discrepancies was not worth belief, does not arise.
In his cross examination the defendant has stated that he makes signature both in Hindi and English; though he denied his signatures on receipts but never claimed that his signatures are forged by the plaintiff; he never demanded for handwriting expert report in this regard; and further different rate of monthly rent was claimed. Thus, conduct of the defendant goes to show that no credence can be given to his statement and as such there is no rebuttal of the presumption drawn against him under Section 114 of the Evidence Act. A reference may be made be made to the decision of the Hon'ble Apex Court in Green View Radio Service vs. Laxmibai Ramji and another, 1990 (4) SCC 497. This was also a case under rent control and eviction matter, paragraphs 3, 4 and 5 whereof are quoted hereunder:
"3. In this connection, we may also point out that the provisions of Section 106 of the Transfer of Property Act require that notice to quit has to be sent either by post to the party or be tendered or delivered personally to such party or to one of his family members or servants at his residence or if such tender or delivery is not practicable, affixed to a conspicuous part of the property. The service is complete when the notice is sent by post. In the present case, as pointed out earlier, the notice was sent by the plaintiff's advocate by registered post acknowledgment due. The acknowledgment signed by the party was received by the advocate of the plaintiff. Thus in our view the presumption of service of a letter sent by registered post can be rebutted by the addressee by appearing as witness and stating that he never received such letter. If the acknowledgment due receipt contains the signatures of the addressee himself and the addressee as a witness states that he never received such letter and the acknowledgment due does not bear his signature and such statement of the addressee is believed then it would be a sufficient rebuttal of the presumption drawn against him. The burden would then shift on the plaintiff who wants to rely on such presumption to satisfy the court by leading oral or documentary evidence to prove the service of such letter on the addressee. This rebuttal by the defendant of the presumption drawn against him would of course depend on the veracity of his statement. The court in the facts and circumstances of a case may not consider such denial by the defendant as truthful and in that case such denial alone would not be sufficient. But if there is nothing to disbelieve the statement of the defendant then it would be sufficient rebuttal of the presumption of service of such letter or notice sent to him by registered post.
4. In the present case it is an admitted position that the notice by registered post had been sent at the proper address. Similar address appeared in the earlier notice given to the defendant and the same is admitted to have been received by the defendant. It has come on record that the defendant proprietor Amarjeet Singh signs his name differently at different times. This is borne out from his signatures on the receipt of summons in the suit, vakalatnama of his former advocate Mr. Mattai and the written statement in the suit which have been signed by him in English in three different ways. It may be further noted that Amarjeet Singh had deposed that he had paid rent for April 1963 to the Gurkha employee of the plaintiffs but no rent receipt was brought to him. He also produced a copy of letter dated June 5, 1963 addressed by him to plaintiffs together with a certificate of posting as Ex.-7 (Col.1). The plaintiffs in this regard did not admit the receipt of this letter and their case was that the copy of letter and certificate of posting Ex.7 (Col.1) have been fabricated by the defendant of the original written statement. The trial court while dealing with this matter arrived at the conclusion that the copy of the letter dated June 5, 1963 and the certificate of posting were not genuine documents and no reliance could be placed upon them. The above matter was also examined by the High Court in detail and it recorded the finding that the appellant (defendant) had made an unsuccessful attempt by inserting on record a suspicious document in order to make out a case of payment of rent for the month of March 1963. The High Court observed that the learned Trial Judge had rightly disbelieved this evidence and it found no reason to differ from him on this point. The above conduct of the defendant goes to show that no reliance can at all be placed on the bald denial of Amarjeet Singh that he did not receive the notice dated September 3, 1963 sent to him by registered post. He was capable of introducing certificate of posting (Ex.-7) in support of his case which was found to be not genuine. As already mentioned above, Amarjeet Singh was signing in different manner and his above conduct of relying on a fabricated document clearly goes to show that no credence can be given to his statement that he had not received the notice in question.
5. In view of these circumstances, we hold that the mere denial by Amarjeet Singh that he did not receive the notice cannot be believed and as such there is no rebuttal of the presumption drawn against him under Section 114 of the Evidence Act."
In such view of the matter, I do not find any legal infirmity or perversity in the findings recorded by the courts below regarding validity of service of the notice.
Insofar as the date of construction is concerned, it has come on record that the map was for construction of new shop was sanctioned on 23.06.1987, a copy whereof was placed on record as paper no. 23-Ga. It has also come on record that after sanction of the map in the year 1987, 12 shops were constructed which includes the shop in question and it was assessed for the first time in the year 1991. It was specifically asserted that such construction was raised after removing the old construction. Nothing contrary to the same could even be demonstrated by the tenant. As such in view of of the provisions of Section 2 (2) explanation 1 (b) of the Act, which provides that for the purpose of this Section construction includes any new construction in place of an existing building which has been wholly or substantially demolished, I find that it was sufficiently proved that the construction was a new construction assessed for the first time in the year 1991. It is also settled law that in view of the provision of Section 2(2) Explanation-1(a) of the Act, the date of first assessment has to be taken as the first date for the purpose of Section 2 of the Act. A reference may be made to the judgment of this Court in Pramod Kumar and another Vs. Shreyans, 2016(1)ARC 460, wherein the Court has held as under:.
13. Per contra, supporting the impugned judgement and order dated 19.10.2015 passed by the Court below, Sri Vishnu Sahai, learned counsel appearing for the landlord has placed reliance on a decision of the Hon'ble Apex Court in the case of Ram Swaroop Rai vs. Smt. Lilawati, 1980 ARC 466. The relevant paragraphs 6 and 8 of the aforesaid judgement are quoted as under:
"6. Firstly, therefore, we must examine whether the respondent has made out her case for exemption from the operation of the Act based on the vital fact that the building has been completed only within ten years of the suit. The second thing we have to remember is Explanation 1 quoted above. When is a building deemed to have been completed?
An analysis of Explanation 1 to Section 2 (2) of the U.P. Act indicates:
(1) Where a building has not been assessed, it is the date on which the completion was reported to, or otherwise recorded by the local authority having jurisdiction.
(2) Where a building has been assessed, it is the date on which the first assessment comes into effect Provided that if the date on which the completion was reported to, or otherwise recorded by, the local authority is earlier than the date of the first assessment, the date of completion will be such earlier date."
(3) Where there is no report, record or assessment, it is the date of actual occupation for the first time (not being an occupation for the purpose of supervising the construction or guarding the building under construction).
8. Unfortunately, it is not possible for the purchaser-respondent or the tenant appellant to give direct testimony about the time of the construction or the nature of the construction vis-a-vis Explanation (b) or (c). The best testimony is the municipal records about the completion of the building and the verification by the municipal authorities as to whether a new construction has come into being or an old construction has been remodelled and, if so when exactly the completion took effect. The municipal assessment record produced in the Court merely states "increased assessment". It may suggest the existence of an assessment which has been increased or it may perhaps be argued that when the building was reconstructed a new assessment was made which was more than the previous assessment and, therefore, was described as increased assessment. The oral evidence in the case, apart from what we have set out, is inconsequential, being second-hand testimony. Even the recital in the rent deed that there was a new construction in 1965-66 is by the appellant and the respondent, neither of whom has any direct knowledge about the construction. Of course, an admission by the appellant is evidence against him but an admission is not always conclusive especially in the light of the municipal records such as are available and the burden such as has been laid by the statute." (Emphasis supplied)
14. A perusal of the aforesaid judgment clearly indicates that once the building is subject to assessment, only date of first assessment is relevant unless the date on which completion was reported or otherwise recorded by the local authority having jurisdiction is prior to the date of first assessment and any other date of completion not so recorded by the local authority and when there is assessment of building, the date of occupancy is of no consequence. In paragraph 8 of the said judgement, it was clearly observed by the Hon'ble Apex Court that oral evidence in such case or even the recital in the rent deed that the new construction was of earlier date, is of no consequence or, in other words, in the light of the municipal record, is inconsequential.
18. A reference may also be made to a judgement of this Court in Laxman Prasad vs. Vth Addl. District Judge, Ballia and others, 1999 (2) AWC 1444. Paragraphs 8 and 9 of the aforesaid judgement are quoted as under:
"8. The construction of a building can be proved by oral as well as documentary evidence. Explanation 1 (a) of Section 2 (2) of the Act provides a deeming clause as to when the building shall be deemed to have been completed. It is a statutory fiction in regard to date of completion. The building might have been constructed earlier and occupied by the tenant but in case there is assessment of the building and such assessment record is produced, the date of completion of the building shall be taken the date of fist assessment, where the completion of the building is recorded or otherwise recorded by the local authority having jurisdiction, it is the date of reporting or recording by the local authority and in absence of any such report, record or assessment, the date on which it is actually occupied for the first time.
9. The Hon'ble Supreme Court in Om Prakash Gupta v. Dig Vijendra Pal Gupta, 1982 (8) ALR 242 (SC), held that Explanation 1 makes it abundantly clear that the date of occupation would be taken to the date of completion of construction only when there is no report or record of the completion of construction or no assessment thereof. If there is an assessment, it will be the date of first assessment, which will be deemed to be the date of completion of construction. This view was reaffirmed by their Lordships of the Supreme Court in Salim v. District Judge, Muzaifarnagar and others, 1998 (2) ARC 617." (Emphasis supplied)
19. The same view was reiterated by this Court in the case of Rajiv Nath Agarwal vs. Anuku Agarwal, 2004 (2) ARC 693 and in the case of Rajendra Baboo vs. Additional District Judge III Bareilly and others, 2008 (70) ALR 200 and in the case of Madan Mohan Sharma vs. Ashok Kumar Kaushi, 2013 (96) ALR 350 and in the case of Vinesh Chandra Trivedi vs. VIIIth Addl. District Judge, Rai Bareilly and others, 2014 (102) ALR 116.
In such view of the matter there is no illegality or perversity in the findings recorded by the trial court as affirmed by the revisional court that the building was a new construction and was thus exempted from the operation of the Act.
In such view of the matter the benefit of deposit made under Section 20(4) of the Act was rightly denied to the defendant.
No other argument has been raised.
The petition is devoid of merit and is accordingly dismissed.
Order Date :- 4.10.2018 AKJ