Tijender Singh vs Smt. Shann Sarowar Kakkar And ...
2018 Latest Caselaw 4199 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 19
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 9217 of 2018
 

 
Petitioner :- Tijender Singh
 
Respondent :- Smt. Shann Sarowar Kakkar And Another
 
Counsel for Petitioner :- Siddharth Niranjan,Dharampal Singh, Sr. Advocate
 
Counsel for Respondent :- Rajan Tripathi
 

 
Hon'ble Manoj Kumar Gupta,J.

Heard Sri Dharampal Singh, learned senior counsel assisted by Sri Siddharth Niranjan for the petitioner and Sri Rajan Tripathi for the caveator-respondent No. 1.

The instant petition is directed against the order dated 1.10.2018 passed by the Executing Court in Misc. Case No. 2/74/16 arising out of Execution Case No. 2/2016 rejecting the objections filed by the petitioner under Section 47 C.P.C.

The first respondent (for short 'the decree holder') instituted a suit for recovery of arrears of rent and for eviction of the petitioner (for short 'judgment debtor'), which was registered as SCC Suit No. 72/2006. According to the plaint case, shop No. 6 on the ground floor of building bearing No. 108, Industrial Estate, Kalpi Road, Kanpur Nagar, was let out by the decree holder to the judgment debtor on a rent of Rs. 7500/- per month. It was pleaded that U.P. Act No. 13 of 1972 was not applicable to the building. The judgment debtor was alleged to be in arrears of rent from 1.12.2004 to 31.8.2006 amounting to Rs. 1,57,500/-, which he failed to pay despite repeated demand, consequently, the tenancy was terminated by a notice under Section 106 of the Transfer of Property Act, 1882, followed by filing of the suit.

The judgment debtor filed a written statement and admitted the relationship of landlord and tenant between the parties. He, however, alleged that all rent up to September 2005 stood paid to the plaintiff-judgment debtor. He further alleged that no notice was received by him nor the plaintiff had any right to issue notice, as no rent was due. He claimed that in the month of September 2005, he vacated the shop and handed over possession to the plaintiff. It was alleged that at present one Harnam Singh had been occupying the shop as tenant.

The trial Court disbelieved the claim of the petitioner that he had paid rent till September 2005 or had vacated the shop. It also held that the notice determining the tenancy was duly served upon the petitioner. Accordingly, the suit was decreed for eviction, arrears of rent, mesne profits and damages by judgment dated 24.2.2009.

In execution of the said decree, the parties admit that the petitioner has vacated the shop and handed over its possession to the decree holder. The decree holder thereafter filed an application on 27.11.2014 for recovery of the decretal amount, cost of the suit, damages, pendentilite and future mesne profits from 16.11.2006 up to 25.9.2014, when possession of the shop was delivered to the decree holder. The judgment debtor filed objection against the execution of the said part of decree on the ground that the shop which was in his tenancy is built over land taken on lease by the decree holder from Rajkiya Audhoyogik Asthan, Kalpi Road, Kanpur for industrial purpose. However, he constructed shops over it without permission of General Manager, Rajkiya Audhoyogik Asthan, and also illegally let out the same. It was claimed that since the building was built over land belonging to State Government, thus, it is a public premises under Section 2 (e) of the Uttar Pradesh Public Premises (Eviction of Unauthorised Occupants) Act, 1972. Consequently, the Court of Judge Small Cause had no jurisdiction to entertain the suit or execute the decree.

The Executing Court by impugned order dated 1.10.2018 has rejected the objections. It took into consideration the fact that the judgment debtor does not dispute that the land over which disputed premises exists, was taken on lease by the decree holder from the Industries Department. Consequently, he was having lawful possession over the same. It also took note of the fact that relationship of landlord and tenant between the parties was duly admitted by the judgment debtor in the written statement. It was held that the Court of Judge Small Causes was thus having full jurisdiction to pass the decree.

Section 2(e) of the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972, defines public premises as follows : -

"(e) "public premises" means any premises belonging to or taken on lease or requisitioned by or on behalf of the State Government, and includes any premises belonging to or taken on lease by or on behalf of -

(i) any company as defined in Section 3 of the Companies Act, 1956, in which not less than fifty-one per cent of the paid up share capital is held by the State Government; or

(ii) any local authority; or

(iii) any Corporation (not being a company as defined in Section 3 of the Companies Act, 19567 or a local authority) owned or controlled by the State Government; or

(iv) any society registered under the Societies Registration Act, 1860, the governing body whereof consists, under the rules or regulations of the society, wholly of public officers or nominees of the State Government, or both;

and also includes-

(i) Nazul land or any other premises entrusted to the management of a local authority (including any building built with Government funds on land belonging to the State Government after the entrustment of the land to that local authority, not being land vested in or entrusted to the management of a Gaon Sabha or any other local authority under any law relating to land tenures);

(ii) any premises acquired under the Land Acquisition Act, 1894 with the consent of the State Government for a company (as defined in that Act) and held by that company under an agreement executed under Section 41 of that Act providing for re-entry by the State Government in certain conditions."

Indisputably, the land over which shop in the tenancy of the judgement debtor was in existence, was taken on lease by the decree holder from Rajkiya Audhoyogik Asthan, Kalpi Road, Kanpur. Definitely, the land was a 'public premises' within the meaning of Section 2(e) of the U.P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972. However, the tenancy in favour of judgment debtor was not in respect of the open land, but building built over it, by the judgment debtor. Consequently, the tenancy of the judgment debtor was not in respect of a public premises. The judgment debtor does not dispute that the building was let out to him by the decree holder. The relationship of landlord and tenant between the parties was thus not in dispute. The Second Schedule to the Provincial Small Causes Courts Act, 1887 enumerates the suit which are excepted from the cognizance of a Court of Small Causes. Under Article (4) of the Second Schedule, a suit for the possession of the immovable property or for recovery of an interest in such property, is excepted from the cognizance of a Court of Small Causes, but not a suit by a lessor for eviction of a lessee from a building after the determination of lease.

In the considered opinion of the Court, in view of the above provision, the suit instituted by the decree holder against the judgment debtor for eviction from building in his tenancy, after determining the same, was perfectly maintainable before Judge Small Causes and there was no impediment in the way of the Executing Court in executing the decree. It was not open to the judgment debtor to resist execution on the ground that the decree holder had built a commercial building over the land taken on lease without obtaining permission from the Industries Department, as it was a matter between the State Government and the decree-holder. The same would in no manner render the decree inexecutable. The objection filed by the judgment debtor under Section 47 C.P.C., has thus been rightly rejected.

The petition lacks merit and is dismissed.

Order Date :- 10.12.2018

AM/-