HIGH COURT OF UTTARAKHAND AT NAINITAL (Court’s order whether the case is or not approved for reporting) Description of the case Second Appeal No. 1359 of 2001 Smt. Furkunda Begum. Vs. Sri Naushand Ahamed. Approved for reporting. Date of Decision: 18.3.2008 Initial of Judge: ……………….. ………………………. …………………………. HIGH COURT OF UTTARAKHAND AT NAINITAL SECOND APPEAL NO. 1359 OF 2001 Smt. Furkunda Begum, W/o Sri Sardar Ali, Behind Kothi No. 44, Gandhi Road, Dehradun. ……….Defendant/Appellant. Versus Sri Naushad Ahmad, Receiver, R/o 44, Gandhi Road, Dehradun. ………….………Plaintiff/Respondent. Dated: 18.3.2008 Hon’ble Rajesh Tandon, J. Heard Sri B.P. Nautiyal, counsel for the appellant and Sri J.P. Joshi, counsel for the respondent. 2. By the present Appeal filed under Section 100 of the Code of Civil Procedure, appellant has prayed for setting aside the judgment and decree dated 27.9.2001 passed by the Addl. District Judge / III. F.T.C. Dehradun in Civil Appeal No. 100 of 2000 Smt. Furkunda Vs. Naushad Ahmed and the judgment and decree dated 25.7.2000 passed by the Addl. Civil Judge-II (J.D.), Dehradun in O.S. No. 18 of 1995 Naushad Ahmad Vs. Smt. Furkunda. 3. Briefly stated, a suit was filed by the plaintiff / respondent being Original Suit No. 18 of 1995 Naushad Ahmad Vs. Smt. Furkunda for ejectment and arrears of rent including mesne profits. 4. Present second appeal was admitted on the following substantial questions of law:- “1- Whether the tenancy right of appellant are protected u/s 29 a of U.P.F. 13 of 1972 and the appellant is entitled to get a benefit of Act 29 A of the Act-13 of 1972? 2- Whether appellant not being defaulter to payment of rent on the date of filing the suit and as such suit is not maintainable under Act 13 of 1972? 3- Whether the appellant being statutory tenant is not liable to pay damages on expiry of the 30 days from the date of receipt of the notice under Section -106 T.P. Act or his occupation becomes wrongful only from the date of eviction decree and he becomes liable to pay damages from the date of eviction decree only/” 5. According to the case of the plaintiff, the plaintiff was appointed as a Receiver in Suit No. 134 / 77 Mustaq Ahmad Vs. Irshad on 4th April, 1994 and is managing the properties including the land in suit and has been authorized to file the suit for ejectment and also to realize the rent. The defendant was a monthly tenant of an open land forming No. 44 Gandhi Road, Dehradun at monthly rent of Rs. 8/- per month. It has further been sated that the rent has been upto 31st December, 1989 and the rent from 1-1-1985 to 31.10.1994 amounting to Rs. 944/- was due against the defendant. Hence, the notice was sent on 3.11.1994 by the plaintiff through his advocate Sri S.R. Agarwal demanding the arrears of rent and terminating the tenancy of the defendant. In paragraphs 6 and 7 of the plaint, the plaintiff has stated regarding the amount due and thereafter, the same has been sent to the plaintiff. Paragraphs 6 and 7 of the plaint are quoted below: “6. That rent from 01-01-85 to 30-12-94 amounting to Rs. 959.75 was due against the defendant out of which the defendant paid Rs. 952/- as under:- (a) By Bank Draft No. 483972 dated 3-12-94 of State Bank of India Rs. 632-00 (b) By Bank Draft No. 257234/485/94 dated 19-12-94 of Punjab & Sind Bank Rs. 320-00 Thus an amount of Rs. 775 as rent is due against the defendant. 7. That the defendant is also liable to pay Rs. 150/- as cost of notice to the plaintiff.” 6. Despite receipt of notice dated 3.11.1994, the defendant has failed to vacate and handover vacant possession of the land in suit to the plaintiff on the expiry of the period of the notice and also failed to pay the entire arrears of rent and the cost of notice, therefore, the suit was filed. 7. The defendant / has filed a written statement denying the averments contained in the plaint. In paragraph 3 of the written statement, it has been stated that the defendant is a tenant of the building covered by the U.P. Act No. 13 of 1972 (U.P. Urban Building Regulation of Letting, Rent & Eviction Act) and has been living in the property for about 40 years. 8. Initially, on 21.2.1998, while deciding the issue no. 5, the trial Court has held that the court has no jurisdiction to try the suit and plaint was returned under Order 7 Rule 10 C.P.C. 9. Aggrieved by the said judgment and decree dated 21.2.1998, both the parties preferred the appeals being Misc. Civil Appeal No. 40 of 1998 Naushad Ahmad Vs. Smt. Furkunda and Misc. Appeal No. 47 of 1998 Smt. Furkunda Vs. Naushad Ahmad. 10. Both the appeals were decided together and out of the said appeal, Civil Appeal No. 40 of 1998 Nuashad Ahmad Vs. Smt. Furkunda was allowed and Civil Appeal No. 470 of 1998 Smt. Furkunda Vs. Naushad Ahmad was dismissed and the matter was remanded back to the trial Court for fresh decision on 4.11.1999. 11. On the pleadings of the parties, the trial Court has famed the following issues: 1& D;k izfroknh oknh ds dFkukuqlkj [kqyh txg dh fdjk;snkj gS vFkok Hkou dk\ 2& D;k izfroknh dks oknh dk fdjk;k nsus esa pwd dh gS\ 3& D;k izfroknh dk fdjk;snkjh uksfVl }kjk lekIr dj nh x;h\ 4& D;k okn dk ewY;kadu de fd;k x;k gS rFkk iznRRk U;k;'qkYd vi;kZIr gS\ 5& D;k ;g okn izfrokni= esa of.kZr dkj.kksa ds vk/kkj ij pyus ;ksX; ugha gS\ 6& D;k oknh vUrdkyhu ykHk izkIr djus dk vf/kdkjh gS\ 7& oknh fdlh vuqrks’k dks izkIr djus dk vf/kdkjh gS\ 8& D;k oknh dks ;g okn ;ksftr djus dk vf/kdkj gS\ 12. On behalf of the plaintiff, per list 6 Ga copy of the Notice Paper No. 7 Ga 1, per list 24 Ga 1 certified coy of the order of the IInd Addl. Civil Judge, Dehradun Paper No. 25B/1 to 25 B/3, receipts produced by the Receiver Paper No. 27 Ga to 27 Ga/6, copy of the notice Paper No. 28 Gha, per list 35 –C-1 certified copy of the order of the Addl. Civil Judge (Sr. Division), Dehradun, per list 51 C 1 copy of the receipt Paper No. 51C1/2, copy of the receipt Paper No. 51C/3, copy of the Registry Paper No 51C1/4 copy of the receipt Paper No. 51 Cs/5, oper list 56Ga -1 original of the receipt Paper No. 56C1/1 to 56C ½ and original copy of the notice paper No. 37 C2/1 have been filed. Towards the oral evidence, Naushad Ahmad, Chitraranjan and one Shamshad have been examined as P.W.1, P.W.2 and P.W.3 respectively. 13. On behalf of the defendant, per list C-1 original copy of the Tender No. 13 B, original copy of the notice Paper No. 16B, original copy of the notice Paper No. 17B, signed and endorsed copy of the notice Paper No. 18B/1 to 18B/2, acknowledgement of the Money Order Paper No. 19 B, acknowledgement of the Money Order Paper No. 20B-1, original of the notice Paper No. 21 B, affidavit Paper No. 30C-2 along with the copy of the Ration Card Paper No. 30 C1/4, paper No. 30C-2/5 and 30 C2/5, Identity Card issued by the Election Commission of India Paper No. 30 C2/11 have been filed. Further per List 31C-1 original of the electricity Bill Paper No. 32C1/1, original of the electricity bill Paper No. 3, 4, 5, 6, 7, 8, 9 and 10, second copy of the FIR Paper No. 34 C-1 have been filed. Towards the oral evidence, Smt. Farukanda Begam and one Jeetu have been examined as D.W.1 and D.W.2 respectively. 14. While deciding the issue no. 1 as to whether the defendant is the tenant of the open land or of the building as has been alleged by the plaintiff, the trial Court has recorded a finding that the defendant Farkanda was the tenant of the land in question and not the building, therefore, this issue has been decided accordingly. 15. While deciding the issue no. 2 as to whether the defendant has made a default in payment of the rent, the trial Court has recorded a finding that it has been proved that the plaintiff has paid a sum of Rs. 952/- for the period from 1.1.1985 to 30.12.1994, through the amount due towards the defendant was Rs. 959.75, thus, the defendant has been defaulter in payment of Rs. 7.75 to the plaintiff. Thus, this issue has been decided accordingly. 16. While deciding the issue no. 3 as to whether the tenancy of the defendant has been terminated by the notice, the trial Court has recorded a finding to the following effect:- vr% ;g ekuk tk;sxk fd izfroknh dks ;g Lohdkj gS fd oknh ukSs”kkn vgen lkekU; okn la0 134@77 eq”rkd vgen cuke bj”kkn vgen vU; esa fjlhoj fu;qDr gS vkSj tcfd oknh ukS’kkn vgen lk/kkj.k okn la0 134@77 esa izLrqr okn esa fookfnr lEifRr ds lEcU/k esa fjlhoj fu;qDr gS rks fookfnr lEifRr ds lEcU/k esa okn lafLFkr djus mldk fdjk;k olwyus vkfn dk vf/kdkj oknh ukS”kkn vgen dks fof/kd :Ik ls izkIr gS rFkk fookfnr lEifRr ij jgus okys fdjk;snkjksa ds fdjk;snkjh dks lekIr djus rFkk tkudh fdjk;snkjh esa csn[ky djus dk vf/kdkj fjlhoj dks fof/kd :Ik ls izkIr gS izfroknh ds bl dFku esa tks fd mUgksaus fyf[kr dFku dh /kkjk & 5 esa fd;s ij oknh dks fdjk;snkjh lekIr djus ds lEcU/k esa dksbZ vf/kdkj ugha gS cyghu gS D;ksafd oknh ukS”kkn vgen fookfnr lEifRr ds lEcU/k esa U;k;ky; izFke vij flfoy tt] }kjk lk/kkj.k okn la0 134@77 esa fjlhoj fu;qDr gS vr% mUgsa mDr lEifRr esa jgus okys fdjk;snkjh dks csn[ky djus dk vf/kdkj gS ;g lkFk lkFk mYys[kuh; gS fd U;k;ky; izFke vij flfoy tt] nsgjknwu }kjk lk/kkj.k okn la0 134@77 esa fnukad 4-4-94 esa ikfjr vkns”k esa rRdkyhu ihBklhu vf/kdkjh }kjk fjlhoj dks lEifRr dh ns[kHkky djus mlds izcU/k djus rFkk fdjk;s dks olwyus vkSj nkok nk;j dk vf/kdkj izkIr gS tks dkxt la0 20lh&1 udy vkns’k ds voyksdu ls Li’V gS vr% ;g lkfcr gksrk gS fd oknh ukS’kkn vgen fjlhoj gksus ds ukrs fdjk;s olwyus lEifRr dh ns[kHkky djus vkSj nkok nk;j djus dk vf/kdkj izkIr gS vkSj ;fn muds }kjk fnukad 3-11-94 dh uksfVl tks dkxt la0 7lh&1 gS ds }kjk izfroknh fdjk;snkjh lekIr dj fn;k x;k gS rks muds }kjk dksbZ vfof/kekU; dk;Zokgh ugha dh xbZ gS vkSj mugs ,slk djus dk iwjk vf/kdkj izkIr gS vr% fjlhoj ukS”kkn vgen tks izLrqr okn esa oknh gS ds }kjk izfroknh dks Hksth x;h uksfVl 7lh&1 tks fookfnr Hkwfe ds lEcU/k esa fdjk;snkjh lekIr djus ds lEcU/k esa izfroknh dks fnukad 3&11&94 dks izsf’kr dh xbZ Fkh vkSj izfrokfnuh dks ;g Lohdkj Hkh gS fd mDr uksfVl mls izkIr gks x;k gS tSlk fd mlus uksfVl 7lh&1 ds eq[; i`”B ij gh mfYyf[kr fd;k gS fd izfrokfnuh dh fdjk;snkjh fookfnr Hkwfe ds lEcU/k esa mDr uksfVl }kjk lekIr dj fn;k x;k gS vr% ;g lkfcr gS fd izfroknh fd fdjk;snkjh uksfVl ds }kjk lekIr dj nh xbZ gS vr% izLrqr oknh fcUnq ldjkRed :Ik ls fuLrkfjr gksus ;ksX; gS rnkuqlkj fuLrkfjr fd;k tkrk gSA 17. While deciding the issue no. 5 as to whether this suit is not maintainable on account of the grounds mentioned in the written statement, the trial Court has recorded a finding that the mode of the tenancy was month to month and there is no force in the contention of the defendants that the suit of the plaintiff is not maintainable. Thus, this issue has been decided in negative. 18. While deciding the issue no. 6 as to whether the plaintiff is entitled to get pendent elite profit, the trial Court has recorded a finding that it has been admitted that the defendant was the tenant of the plaintiff and it cannot be said that the defendant was not the tenant of the plaintiff. Further the trial Court has recorded a finding to the following effect:- vkSj ;g Hkh okn fcUnq la0 3 ds foospuk ls lkfcr gS fd izfroknh dks fdjk;snkjh oknh }kjk lekIr dj fn;k x;k gS vr% fdjk;snkjh lekIr djus dh uksfVl izfroknh }kjk izkIr djus ds mijkUr fdjk;snkjh lekIr gksus dh frfFk ls vUrdkyhu ykHk izkIr djus dk vf/kdkj gS vr% okn fcUnq ldkjkRed :Ik ls fu/kkZfjr gksus ;ksX; gS vkSj rnkuqlkj fuLrkfjr fd;k tkrk gSA 19. While deciding the issue no. 7 with regard to relief, the trial Court has recorded a finding that it is proved that the defendant is tenant of the open land of the plaintiff and the tenancy has already been determined by the notice and since the defendant is not the tenant of the property in question, therefore, the suit is liable to be decreed. 20. While deciding the issue no. 8 as to whether the plaintiff is entitled to file the suit, the trial Court has recorded a finding that since the plaintiff is receiver, therefore, he is entitled to file the suit. This issue has been decided in affirmative. 21. The trial Court has decreed the suit of the plaintiff on 25.7.2000. 22. Aggrieved by the said judgment and decree, the defendant has preferred an appeal being Civil Appeal No. 100 of 2000 Smt. Furkunda Vs. Naushad Ahmad. The appellate Court has also dismissed the appeal of the defendant / appellant by observing that there is no ambiguity with regard to the identity of the property in question and notice in that regard was a valid notice. A finding has further been recorded that the trial court was perfectly justified in accepting the uncontroverted evidence of the plaintiff with regard to mesne profits @ Rs. 10/- per day and has correctly awarded the same. 23. A perusal of the written statement shows that the defendant has not taken any plea with regard to the benefit of Section 29 (A) of the U.P. Act No. 13 of 1972 and it has been admitted that only open land has been let out to the defendant. Section 29(A) of the U.P. Act No. 13 of 1972 is quoted below: “[29-A. Protection against eviction to certain classes of tenants of land on which building exists.- (1) For the purposes of this section, the expressions “tenant” and “landlord” shall have the meanings respectively assigned to them in clauses (a) and (j) of section 3 with the substitution of the word “land” for the word “building”. (2) This section applies only to land let out, either before or after the commencement of this section, where the tenant, with the landlord’s consent has erected any permanent structure and incurred expenses in execution thereof. (3) Subject to the provisions hereinafter contained in this section, the provisions of Section 20 shall apply in relation to any land referred to in sub-section (2) as they apply in relation to any building. (4) The tenant of any land to which this section applies shall be liable to pay to the landlords such rent as may be mutually agreed upon between the parties, and in the absence of agreement, the rent determined in accordance with sub- section (5). (5) The District Magistrate shall on the application of the landlord of the tenant determine the annual rent payable in respect of such land at the rate of ten per cent per annum of the prevailing market value of the land, and such rent shall be payable, except as provided in sub-section (6) from the date of expiration of the term for which the land was let or from the commencement of this section, whichever is later. (6) (a) In any suit or appeal or other proceeding pending immediately before the date of commencement of this section, no decree for eviction of a tenant from any land to which this section applies, shall be passed or executed except on one or more of the grounds mentioned in sub-section (2) of Section 20, provided the tenant, within a period of three months from the commencement of this section by an aplciation t the court, unconditionally offers to pay to the landlord, the enhanced rent fo the land for the entire period in suit and onwards at the rate of ten per cent per annum of the prevailing market value of the land together with costs of the suit (including costs of any appeal or any executing or other proceedings). (b) In every such case, the enhanced rent shall, notwithstanding anything contained in sub-section (5), be determined by the court seized of the case at any stage. (c) Upon payment against a receipt duly signed by the plaintiff or decree-holder or his counsel or deposit in court of such enhanced rent with costs as aforesaid being made by the tenant within such time as the court may fix in this behalf, the court shall dismiss the suit, or, as the case may be, discharge the decree for eviction, and the tenancy thereafter, shall continue annually on the basis of the rent so enhanced. (d) If the tenant fails to pay the said amount within the time so fixed (including any extended time, if any, that the court may fix or for sufficient cause allow) the court shall proceed further in the case as if the foregoing provisions of this section were not in force. (7) The provisions of this section shall have effect, notwithstanding anything to the contrary contained in any contract or instrument or in any other law for the time being in force. Explanation –For the purposes of sub-section (6) where a case has been decided against a tenant by one court and the limitation for an appeal therefrom has not expired on the date immediately before the commencement of this section, this section shall apply as it applied to pending proceedings and the tenant may apply to that court for a review of the judgment in accordance with the provisions of this section.]” 24. In the present case neither the ingredients of Section 29-A of the U.P. Act No. 13 of 1972 are applicable nor there is any pleadings to that effect. Both the courts below having recorded the findings of fact, I find no error of law in arriving the findings to the contrary. 25. Further, I have also gone through the judgments and decree passed by both the courts below, both the courts below have recorded findings of fact and I find no ground to interfere with the same. 26. In Madhavan Nair Vs. Bhaskar Pillai (Dead) by Lrs. (2005) 10 SCC 553, where it has been observed as under: “In the present case, the first appellate court has neither ignored any material evidence having bearing on the decision of the case nor considered any evidence which was otherwise not admissible. Therefore, the High Court was not at all justified in interfering with the concurrent findings of fact. It is well settled that even if the first appellate Court commits an error in recording a finding of fact, that itself will not be a ground for the High Court to upset the same.” 27. In H.P. Pyarejan Vs. Dasappa 2006 ALR SCW 715, the Apex Court has observed as under:- “Under Section 100 of the code (as amended in 1976) the jurisdiction of the High Court to interfere with the judgments of the courts below is confined to hearing on substantial question of law. Interference with findings of fact by the High Court is not warranted if it involves re- appreciation of evidence. ” 28. In view of the aforesaid, I do not find any reason to interfere under Section 100 of the Code of Civil Procedure Further, I do not find any substantial questions of law involved in this Second Appeal and the Second Appeal is concluded by the findings of fact and deserves to be dismissed. However, the counsel for the appellant has sought some time to vacate the premises in question. In the interest of justice, the appellant is given time upto 31st December, 2008 provided the undertaking is given by the appellant on or before 15th April, 2008 to vacate the property in question by 31st December, 2008 and to deposit the entire decretal amount on or before 31st May, 2008. 29. Subject to aforesaid, Second Appeal is dismissed. No order as to costs. (Rajesh Tandon, J.) 18.3.2008 Rathour