Smt. Prachi Tiwari And 3 Ors. vs Harveer Singh
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Allahabad High Court

Smt. Prachi Tiwari And 3 Ors. vs Harveer Singh on 24 February, 2025

Author: Ajit Kumar

Bench: Ajit Kumar

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:30907
 
Court No. - 4
 

 
Case :- S.C.C. REVISION No. - 118 of 2016
 

 
Revisionist :- Smt. Prachi Tiwari And 3 Ors.
 
Opposite Party :- Harveer Singh
 
Counsel for Revisionist :- Pankaj Govil,Pankaj Kumar Govil,Punit Khare,Shashi Nandan,Suresh Pratap Singh
 
Counsel for Opposite Party :- ,Pankaj Agarwal
 

 
Hon'ble Ajit Kumar,J.
 

1. Heard Sri Atul Dayal, learned Senior Advocate assisted by Sri Suresh Pratap Singh, learned counsel for the petitioner and Sri Pankaj Agarwal, learned counsel for the respondents.

2. This revision petition is directed against the order passed by the Judge, Small Cause dated 22nd February, 2016 dismissing the suit for eviction and recovery for arrears of rent holding that tenanted premises was in a building covered under the Act No. 13 of 1972 and thus tenant was entitled to statutory benefit under Section 20 (4) of the said Act.

3. Assailing the findings on point no. 1 which was framed to examine as to whether Act No. 13 of 1972 was applicable to the building or building being contructed after 1995 was exempted, Sri Dayal, learned Senior Advocate argued that municipal assessment register is the only document which should be relied upon for the purpose of determination of the year of construction of the building, more especially in the circumstances when the sanctioned map was brought on record in evidence alongwith municipal assessment records of the building in question.

4. Per contra, it is argued by learned counsel for the respondent Mr. Pankaj Agarwal that there was evidence on record as paper no. 57-C a municipal assessment records and that fully established that building in question was constructed in 1975, and therefore, it was old building and old building was not exempted under the Act, inasmuch as petitioner was tenant of house no. 3/200, which was later allotted as new number 3/300. He submitted that respondent was sitting tenant in the premises in question, when it was purchased by the landlord petitioner, and therefore, if certain addition was made in existing building that would not make the petitioner a new tenant in a new building so as to give advantage to the land lord-petitioner of terminating tenancy by issuing a notice simpliciter.

5. Having heard learned counsel for the respective parties and having perused the records, the other points framed by the Judge, Small Causes would arise for consideration in the event first point as to applicability of the Act No. 13 of 1972 to the building is decided against landlord petitioner and hence I proceed to consider this point first, "whether the building in question was a new building constructed after the year 1985 so as to grant exemption from the operation of the Act No. 13 of 1972".

6. The parties have led three documents in evidence in support of their respective arguments. While petitioner- landlord has relied upon paper no. 78-C2, 66-C the tenant respondent has relied upon the document bearing paper no. 57-C issued by the Nagar Nigam Aligarh.

7. From the record, it clearly transpires that where building in question is housed originally belonged to Vidhyadhar Chaturvedi and that that point of time it was house number 3/220. It further transpires that after the death of Vidyadhar Chaturvedi, property got divided and house no. 3/220A came into share of Subhash Chandra Chaturvedi. The municipal assessment record of the Municipal Corporation, Aligarh, paper no. 66-C shows that prior to 1986, there was only one Kothri and hence Subhash Chandra Chaturvedi applied for permission for raising construction before the Aligarh Development Authority, which stood granted on 17.6.1986, being paper no. 78-C2. With grant of this permission the addition of one varendah, two rooms with Kitchen and Washroom and made was added to the existing building and new assessment took place giving it house no. 3/300. The assessment for the purpose of municipal tax got revised with 1st April, 1989. The trial court has recorded these facts but ultimately proceeded to rely upon paper no. 57-C to hold that assessment of the building had already taken place in 1975 and therefore, building shall be treated to old one. It is true that there was an existing building with no. 3/220-A which went to substantial addition and modification between 1986 and 1989 with sanction letter dated 17.6.1986 and that is how new assessment took place and municipal taxes got revised.

8. In the considered view of the Court, addition of two rooms, varendah, washroom and kitchen is substantial addition and change in existing building and in fact it amounted to a new construction altogether with substantial change and addition to one existing kothri. This is, therefore, liable to be held to be a new construction with revised new assessment and revised taxes.

9. Explanation 1(C) to Section 2(2) runs as under:

"(c) where such substantial addition is made to an existing building that the existing building becomes only a minor part thereof the whole of the building including the existing building shall be deemed to be constructed on the date of completion of the said addition"

10. Mr. Pankaj Agarwal, though strenuously argued that tenant respondent was sitting tenant at the time when Subhash Chanddra Chatruvedi proceeded to raise constructions, but he could not establish from the documents, nor from the pleadings that he was sitting tenant at the time when Vidyadhar Chatruvedi owned the property. He also could not take the court to any such document which can be suggestive of the claim raised at the end of the tenant that he was sitting tenant of house no. 3/220 or 3/220-A . Respondently admittedly claimed to be tenant of house no. 3 of 200 and this was emphasized by subsequent purchaser Ms. Prachi Tiwari.

11. Upon pointed query being made as to what is there, accommodation in which tenant is , Mr. Agarwal very fairly conceded that he is having two rooms accommodation. Admittedly prior to 1986 building had only one kothri and after 1986 two more rooms got added, so natural corollary would be that respondent became tenant of Subhash Chandra Chaturvedi, the predecessor in interest of the present landlord after new construction came into existence in 1989.

12. In the case of Ram Saroop Rai v. Smt. Lilawati ARC 1980 466, it has been held that municipal assessment by the concerned municipality only is having substantial evidentiary value to arrive at a finding as to year of construction of building. It is held that " the statute makes it clear that reliance upon the municipal records, rather than on the lips of witnesses, is indicated to determine the date of completion and the nature of the construction. Thus, it is clear that building in question was constructed after the year 1985, and therefore, the Act No. 13 of 1972 was not applicable.

13. Mr. Agarwal has further argued that point of service of notice was also wrongly decided by the Judge, Small Causes even though notice was admitted by the tenant respondent and reply to the notice was made. This point to the validity of the notice is issue no. 7. From the discussion part of the judgment of the Judge Small causes, I find that notice was not only found to be sent but also even reply was made by the tenant. Once notices sent by the landlord have been duly received by the tenant and reply too was given by him, the plea that notice was wanting, was not available to the tenant. The argument that recitals of the notice did not mean eviction and, therefore, there was no valid notice, in my considered view is not sustainable. Once building is not covered under the Act No. 13 of 1972, service of notice is sufficient to determine tenancy. It is sufficient that notice contained recitals to the effect that no payment of rent and so tenant was in arrears of rent. This in my considered view is sufficient suit for eviction. No other points have been pressed by the respondent.

14. In view of above, this suit for recovery of rent of arrears of rent and eviction deserves to be decreed. In the circumstances, therefore, the judgment and decree dated 22nd February, 2016 passed by Judge, Small Causes dismissing the suit is hereby set aside. The admitted rate of rent between the parties of Rs. 400/- per month. Hence suit for recovery is decreed. The respondent tenant is directed to pay entire arrears @ Rs. 4,00/- per month for the period from June, 2002 to March, 2025 to the landlord petitioner. Landlord would also be entitled to damages @ Rs. 400/- per month from March, 2025 till date. The deposit already made by the tenant respondent shall be adjusted against the arrears of rent and damages. The petitioner is directed to evict the premises in question by 24th March, 2025 and in the event, he fails to evict the premises as directed hereinabove, he shall be liable to pay damages @ Rs. 400/- per day until he evicts the premises in question.

15. The suit thus stands decreed and decree be drawn accordingly.

16. This revision petition thus stands allowed.

Order Date :- 24.2.2025/Sanjeev