Indian Oil Corporation Limited ... vs Mamta Goel And Others ...
2021 Latest Caselaw 1075 UK

        HIGH COURT OF UTTARAKHAND AT NAINITAL

                      Second Appeal No. 23 of 2021

Indian Oil Corporation Limited                      .....Defendant/Appellant.
                                    Versus
Mamta Goel and others                               ....Plaintiff /Respondents

Present :
Mr. V.K. Kohli, Senior Advocate assisted by Mr. Kanti Ram Sharma, Advocate for the
appellant.

                                                    Dated: 23rd March, 2021
                             JUDGEMENT

Hon'ble Sharad Kumar Sharma, J.

This is a defendant's Second Appeal, which has been preferred, being aggrieved against the judgment and decree dated 18.02.2021, as has been rendered by the Court of Additional District Judge, 3rd, Dehradun, in Civil Appeal No. 31 of 2017, Indian Oil Corporation Limited Vs. Shri Pankaj Gupta and others, by virtue of which, the Appeal which was preferred by the defendant/appellant, was dismissed and, as a consequence thereto, it has affirmed the judgment and decree dated 31st May, 2007, which was rendered by the Court of learned 2nd Additional Civil Judge (Senior Division), Dehradun, in Suit No. 155 of 2000, Pankaj Gupta and others Vs. I.B.P. Co. Ltd.

2. Brief facts of the case are, that the plaintiff/respondents, herein, on 4th April, 2000, had instituted a Regular Civil Suit, before the Court of Civil Judge (Senior Division), Dehradun, praying for the grant of decree of eviction of the defendant/appellant and all their other agents, allies and person attached to their office, from the Suit land, which was described in the schedule of the property of the plaint. The actual possession of which was said to be delivered by the plaintiff/respondent, and which was sought to be restored back, and also with the direction that the defendant/appellant, may be

directed to remove all their fittings and fixtures, which were affixed to the land from which the defendant/appellant was sought to be evicted.

3. Besides this, the another relief, which was sought for by the plaintiff/respondents, herein, in the aforesaid Suit, was for the recovery of Rs.3,000/-, as mesne profit from the date of commencement of the unauthorised occupation and of the use of the land and the damages @ Rs.1,000/- per day for the period w.e.f. 1st April, 2000 to 3rd April, 2000, as well as for the recovery of future mesne profit for the unauthorised occupation of the land @ Rs.1000/- per day from the date of institution of the Suit, i.e. 04.04.2000 till 02.12.2004, and thereafter w.e.f. 03/12/2004, till the date of delivery of actual possession, along with the cost of Suit and interest payable on the amount due, @ 18% per annum.

3. The aforesaid amount was also claimed to be paid to the plaintiff/respondents, along with interest @ 18% p.a., as being a capital, which according to the perception of the plaintiff/appellant, was a benefit, which was accruing from their landed property, which was leased out to the defendant/appellant, herein.

4. The suit property as described in the schedule of property of the plaint of Suit 155/20, Sri Pankaj Gupta and others Vs. I.B.P. Co. Limited; constituted to be described in the plaint as under :-

"A piece of land measuring 70' in length X 110' in breadth (70' in East and West and 110' in North and South), situated at Gandhi Road, Dehradun, being part o Municipal No. 48, Gandhi Road, Dehradun, bounder and butted as under :-

On the North : By the property of late Pt. Narendra Dutt.

On the South : By the property of Late S. Bhagat Singh On the East : By other land of the partly of Amit Goyal and partly of Vinay Kumar

On the West : By Delhi-Mussoorie Road (Gandhi Road) Dehradun. "

5. The property, as described in the plaint as aforesaid, was numbered as Municipal Number 48, Gandhi Road, Dehradun, the precinct of the same was also detailed in the plaint itself, as given above.

6. The brief backdrop of the Suit which was filed by the plaintiff/respondent on 04.04.2000, was that, initially the plaintiff No.1, late Mr. Pankaj Gupta, had filed an Original Suit No. 119 of 1976, against the defendant/appellant, before the Civil Court, Dehradun, for ejectment and mesne profit, which was decreed by the judgment dated 30th April, 1983.

7. Being aggrieved against the said judgment and decree, the defendant to the said Suit No. 119 of 1976, i.e. appellant, herein, had preferred a Civil Appeal, being Civil Appeal No. 29 of 1983. Its during the pendency of the said Appeal that the parties contend, that they had entered into the compromise and the terms of the compromise was settled between them by virtue of an agreement, which was executed between them on 30th April, 1983, thereby creating a fixed term tenancy, governed by the terms enshrined in the settlement deed.

8. As a consequence of the settlement, which was arrived at between the parties to the Civil Appeal No. 29 of 1983 on 30th April, 1983, the parties to the agreement, as well as to the Suit No. 119 of 1972, had created a fresh "time bound tenancy/lease" for a fixed period of 15 years, commencing from 1st April, 1985 to 31st March, 2000. This term of compromise of 30th April, 1983, reserved and protected the rights of the lessor i.e. respondent/plaintiff, herein, to evict the lessee, i.e. defendant/appellant, herein, from the Suit

property or the property, which was covered by the compromise of 30th April, 1983, as soon as it was required by them.

9. To sum up the situation, which emerges consideration is that the decree of 30th April, 1983, and the compromise, which was entered into on the same day, was inter se governing the relationship of lessor and lessee, between the defendant/appellant and plaintiff/respondent, and it was a time bound tenancy, which was a fact not denied, which will be terminable at the will of the lessor or on an expiry of the period, of lease as specified in the compromise.

10. The argument of the learned counsel for the defendant/appellant, was that as per the terms of the compromise or the lease dated 30.04.1983, which was executed, the life of the lease which was supposed to be agreed to expire on 31st March, 2000, since a right to raise the construction was also provided for the lessee and hence, under the strength of the said lease, which the defendant/appellant contends to have been executed later on, a registered agreement for tenancy was also got executed on 26th March, 1987, and the tenancy thus created in their favour, on a conjoint reading of the covonents of the agreement of 30th April, 1983, with the registered rent deed dated 26th March, 1987, in fact, it was argued as if it would provide them the perpetuity to continue to occupy the premise, even beyond the prescribed agreed period of 31st March, 2000, as was settled in the agreement of 31.04.1983, which was the basis of decree in Civil Appeal No.29 of 1983, which was filed by the defendant/appellant.

11. The record shows that on the expiry of the said period of the agreed term of the tenancy, which was time bound, when the property was not vacated, the plaintiff/respondent had issued the notices dated 27.03.2020, terminating the tenancy of the defendant/appellant with the afflux of time, by serving the same on the defendant/appellant on 27th March, 2020, and hence, since the

property which was leased out by an agreement of 30th April, 1983, since was not vacated, the Suit was instituted for the nature of the decree as already referred therein in the above paragraph.

12. Further, if the plaint averments, are taken into consideration, as per the admitted facts the contract of tenancy, the defendant had admitted the fact that the terms settled under an agreement was a fixed term tenancy, which was ending on 31st March, 2000, and the rent and the taxes due, were also settled to be payable towards the tenement, and it was paid for the period ending upto 31st March, 2000, only and not for any period beyond it. Thus no rent was admittedly paid by the defendant/appellant after 3.03.2000.

13. On a comparative scrutiny of the pleadings, the land, in question, and its location, which is detailed to be situated at Gandhi Road, a very commercially viable area, having a very wide commercial potentiality and would be fetching a very high commercial value, as being situated in the heart of the city, just opposite to "Hotel Drone", of Tourism Department of the Government of U.P., (as it then was), and also in front of U.K. Road Transport Corporation Bus Station. Apart from this, there are other important Government establishments, which are in an around the area of the tenement, in question, i.e. for example the Collectorate, District Civil Courts, the Office of Nagar Nigam, Hospital, etc. Hence, the contention of the plaintiff/respondent, in the Suit was that the property, in question, and looking to the aspect of expiry of the fixed term tenancy, which he didn't want to be extended, deserved to be vacated by the defendant/appellant, herein.

14. In the amended plea, which was added by the amendment made by para 12-A, the fact of the two registered sale deeds of having been executed and the property being sold to the plaintiff No.1/1 and partly to plaintiff No.1/2, and the conferment of the right to the plaintiff, was admitted and expected that the right to recover the rent

and mesne profit for the period ending from 31.03.2000, ought to have been exercised by them, had if the tenancy was alleged to have continued thereafter, but it was not extended, no rent was demanded or accepted by the plaintiff/appellant.

15. In response to the aforesaid Suit, the defendant/appellant had filed the written statement, by invoking the provisions contained under Order 8 Rule 1 of the CPC, and had also filed the additional written statement, i.e. paper No. 78-A/1, under Order 8 Rule 9 of the CPC. What is apparent from the records, it is seen is that, the following facts are admitted :-

a) That as a consequence of the judgment and decree rendered in Civil Appeal No. 29 of 1983, a registered lease agreement for a time bound tenancy, was executed on 26th March, 1987, the period of which, admittedly was to expire on 31st March, 2000, with the lapse of fixed term period.

b) It was settled between the parties that the tenancy was determinable with the efflux of time and as agreed between the parties on the basis of the compromised arrived at between them, as the consequence of judgment in Civil Appeal No. 29 of 1983.

c) The said period of tenancy after 31st March, 2000, was never extended and no rent or other payable dues were ever demanded or paid to the plaintiff/respondent for the period beyond 31st March, 2000.

d) But, however, the defendant in the Suit has contended that the property would be governed by the provisions contained under the Act No. 13 of 1972, and he would have the protection of the said Act, and particularly, the protection which has been sought for is that in the light of the provisions contained under Section 29-A of the Act No. 13 of 1972.

16. Based on the aforesaid pleadings and the additional plea, which were raised, in fact, the defendant/appellant, had tried to attract and derive an immunity from eviction on account of the implications,

pleaded in para 19 of the written statement, contending to be flowing from the provisions of Section 29-A of Act No. 13 of 1972, but, it would not be out of context to mention at this stage that there was not even a single averment made in the written statement, about the extension of the tenancy; after the expiry of its term and there was also not even a single whisper in the pleading, that after the notices of termination of tenancy dated 27.03.2000, or even after the expiry of the period of tenancy i.e. 31.03.2000, ever the rent was received by the plaintiff/respondent.

17. Based on the aforesaid rival pleadings, the Suit was decreed by the judgment dated 31st May, 2007, by the Court of 2nd Additional Civil Judge (Senior Division), Dehradun.

18. Aggrieved against the said judgment and decree, a Civil Appeal, being Civil Appeal No. 31 of 2007, Indian Oil Corporation Limited Vs. Pankaj Gupta, was preferred before the Court of Additional District Judge / FTC, Dehradun, whereby the learned First Appellate Court vide its judgment dated 8th October, 2019, had allowed the First Appeal and had set aside the judgment of the learned Trial Court dated 31st May, 2007, as was rendered in Original Suit No. 155 of 2000.

19. Being aggrieved against the said judgment of the learned First Appellate Court, the respondent/landlord and the plaintiff, herein in the Suit, had preferred the Second Appeal before this Court, being Second Appeal No. 67 of 2009, Smt. Mamta Goel and another Vs. Indian Oil Corporation Ltd. and another.

20. The Coordinate Bench of this Court, after hearing the parties, had allowed the Second Appeal and had remanded the matter for its reconsideration by the First Appellate Court, for the reason assigned therein that the First Appellate Court's judgment of 8th October, 2009, did not satisfy the test of Order 41 Rule 31 of the CPC.

Its on the revival of the proceedings by virtue of the judgment of remand dated 26th July, 2017, as was rendered in Second Appeal No. 67 of 2009, Smt. Mamta Goel and another Vs. Indian Oil Corporation Ltd. and another, that the proceedings of the appeal was taken up afresh, and the same has been dismissed by the judgment of 18th February, 2021, by the Court of 3rd Additional District Judge, Dehradun, which is under challenge in the present Second Appeal.

21. The learned counsel for the appellant, for the purposes of substantiating his argument, had primarily based his argument on the fact that these proceedings for eviction initiated by plaintiff/respondent by institution of a regular Civil Suit, would be barred by the provisions contained under Section 29-A of Act No. 13 of 1972, and hence, according to his argument, the proviso to Section 20 (1) of the Act No. 13 of 1972, would not be attracted to be made applicable in the present case, where the creation of a tenancy was by way of compromise entered into by virtue of registered agreement for a fixed term tenancy, expiring on 31st March, 2000, and particularly, the implication, which has been sought to be attracted by the learned counsel for the defendant/appellant, was from the perspective that in view of the fact that the tenancy was created in relation to a land and the terms of the tenancy, conferred the right of construction, upon the land which was let out, in that eventuality, the defendant/appellant will have an immunity from being evicted under the provision of Section 29-A, and hence, the proviso to Section 20 (1) of Act No. 13 of 1972, would not be applicable.

22. His contention was further from the perspective, that the strict directions which were issued by the Coordinate Bench of this Court in the judgment of 26th July, 2017, while remanding the matter to the Appellate Court for deciding the matter after formulation of point of determination as contemplated under Order 41 Rule 31 of the CPC, since has not been rendered as per the directives of remand, the judgement suffers from the vices of the provisions contained under

Order 41 Rule 31 of the CPC, and accordingly, the following substantial questions of law were famed :-

"(a) Whether the learned 1st Appellate Court can decide the appeal without framing points of determination, as required under Order 41 Rule 33 of Code of Civil Procedure, 1908 ?

(b) Whether the proviso of sub-section (1) of Section 20 of the U.P. Act XIII of 1972 applies to Section 29-A of U.P. Act XIII of 1972 ?

(c) Whether the learned courts below have misinterpreted the provision of Section 20 (1) of U.P. Act XIII of 1972 read with Section 29-A of U.P. Act XIII of 1972 ?

(d) Whether a tenant of the land, who is entitled to the benefit of Section 29-A of U.P. Act XIII of 1972, can be evicted on the basis of proviso of Section 20 (1) of U.P. Act XIII of 1972 ?

(e) Whether the learned 1st Appellate Court could dispose of the appeal on new grounds without framing any additional issue (s) and without giving opportunity of hearing.

(f) Whether the learned 1st Appellate Court without reversal of the finding on issue No.4, can dismiss the appeal filed by the appellant ?

(g) Whether the decision of the learned 1st Appellate Court is in violation of the order dated 26.07.2017 passed by the Hon'ble High Court in Second Appeal No.67 of 2009; Smt. Mamta Goel and another Vs. Indian Oil Corporation Limted and another ?"

23. During the course of argument, the learned Senior Counsel for the defendant/appellant, had harped upon and limited his arguments on two principle arguments based on the substantial question of law No. 'A' and 'B.

24. Let us deal with the principles as sought to be pressed, with the regard to the implications of Order 41 Rule 31 of the CPC. In support of his contention, the learned counsel for the defendant/appellant had referred to a judgment reported in 2011 (4) SCC 240, H. Siddiqui (Dead) by Lrs. Vs. A. Ramalingam, and particularly, he had made reference to para 21 of the said judgment, which is quoted hereunder :-

"Order 41, Rule 31 CPC:

21. The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance of the said provisions if the appellate court's judgment is based on the independent assessment of the relevant evidence on all important aspect of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions. (Vide: Sukhpal Singh v. Kalyan Singh, Girijanandini Devi v. Bijendra Narain Choudhary, G. Amalorpavam v. R.C. Diocese of Madurai, Shiv Kumar Sharma v. Santosh Kumari and Gannmani Anasuya v. Parvatini Amarendra Chowdhary)."

25. If the tenacity of the argument of the learned counsel for the defendant/appellant is determined from the view point of the observations made in para 21, on which, the reliance has been placed by him, in fact, the judgment of the Hon'ble Apex Court, which had been relied, it had postulated, that if the impugned First Appellate Court's judgment which is under challenge, if that itself reflects an

apparent application of mind, consideration of the evidence, facts, and has decided the matter on considering the material which were placed before it, that would be treated as to be a substantial compliance of the provisions contained under Order 41 Rule 31 of the CPC. As per my view, this legislative precaution and intent, has been given under law in order to eradicate a future complication, because the First Appellate Court has been consistently held to be the final Court, which has been vested with powers of appreciation of fact and record, and that is why, it has been made incumbent that the Court at least at the first Appellate Court must record the general expression for its reasoning to arrive at a conclusion while deciding the First Appeals. As far as the appreciation of the Appellate Court's judgment, herein, is concerned, in the present Second Appeal, I am of the view that if the logics assigned in the judgment, itself are taken into consideration, it reflects that the Appellate Court has applied its mind, considered its evidence placed in the proceedings and given its reasoning for accepting the judgement which had been rendered by the Trial Court.

26. The aforesaid principles with regard to the implications of Order 41 Rule 31 of CPC, has also to be visualised from yet another judgment, which had been rendered by the Hon'ble Apex Court in the matter of Santosh Hazari Vs. Purushottam Tiwari, reported in (2001) 3 SCC 179, and particularly, the reference may be had to para 15 of the said judgment, which is extracted hereunder :-

15. A perusal of the judgment of the trial Court shows that it has extensively dealt with the oral and documentary evidence adduced by the parties for deciding the issues on which the parties went to trial. It also found that in support of his plea of adverse possession on the disputed land, the defendant did not produce any documentary evidence while the oral evidence adduced by the defendant was conflicting in nature and hence unworthy of reliance. The first appellate Court has, in a very cryptic manner, reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as pleaded by the defendant. The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. First appeal is a valuable right of the parties and unless restricted by law,

the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi & Ors. Vs. Bijendra Narain Choudhary). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it. While writing a judgment of reversal the appellate Court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial Court must weigh with the appellate Court, more so when the findings are based on oral evidence recorded by the same presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate Court is entitled to interfere with the finding of fact (See Madhusudan Das Vs. Smt. Narayani Bai) The rule is __ and it is nothing more than a rule of practice __ that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact.(See Sarju Pershad Ramdeo Sahu Vs. Jwaleshwari Pratap Narain Singh). Secondly, while reversing a finding of fact the appellate Court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding.

This would satisfy the Court hearing a further appeal that the first appellate Court had discharged the duty expected of it. We need only remind the first appellate Courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate Court continues, as before, to be a final Court of facts; pure findings of fact remain immune from challenge before the High Court in second

appeal. Now the first appellate Court is also a final Court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate Court even on questions of law unless such question of law be a substantial one.

27. If the rationale laid down in para 15 of the judgment of Santosh Hazari (Supra), is taken into consideration, principally, the precaution, which has been taken therein is that, the First Appellate Court, which is the last Court of appreciation of facts, it should reflect from the judgment, that it is not a cryptic judgment and the judgment to be with the non application of mind. What it intends to convey is that the judgment of the First Appellate Court, has to apparently reflect on its bare reading, it shows an application of mind and recording of the findings in support of the reasons, while deciding the issues engaged consideration, and that is why the Hon'ble Apex Court in the said judgment has laid down two wider principles; the first one, being that the finding of facts which are based on the conflicting evidence arrived at by the Trial Court, that must be taken into consideration by the learned Appellate Court, I am of the opinion, that in those circumstances, when it is particularly based on an appreciation of an exclusive oral and documentary evidence recorded by the Judge concerned. The said precaution is taken also from the perspective that the appraisal of the evidence by the Trial Court, if it suffers from an irregularity or if it is based on an inadmissible evidence, it is in that eventuality, where the Appellate Court is supposed to render the judgment within the ambit of Order 41 Rule 31 of the CPC, and that too its until and unless, there is some very special determining factors of 'inappropriate or perverse consideration of an evidence having a vital bearing on the judgment itself'.

28. The second principle, which has been laid down is that in an eventuality of reversal of the judgment of the Trial Court, where

the Trial Court, has to assign its own reasons and will have to record a the finding for not accepting the rationale adopted by the Trial Court while reversing the judgment. The Appellate Court has to all the more lay the judgment as per the ambit of Order 41 Rule 31 of the C.P.C.

29. Since in the present case, it is concurrent judgment and not a judgment of reversal, and particularly, when on the judgment appreciation of evidence has evidently apparent from the face of the record itself, it could be inferred that, in principle, the Court has applied the ratio intended by the provisions contained under Order 41 Rule 31 of the CPC. Because of the logic if it is taken into consideration of the impugned judgment, it satisfies the test laid by Order 41 Rule 31 of the CPC as postulated.

30. In order to better deal with the argument extended by the learned counsel for the appellant, a reference to a judgment as reported in 2011 (4) SCC 240, H. Siddiqui (Dead) by Lrs. Vs. A. Ramalingam, and particularly, if that is taken into consideration, it has been principally based on the fact, that the provisions contained under Order 41 Rule 31 of the CPC, it provides the guidelines as basic determining factors for the Appellate Court, as to in what manner, the Court has to proceed to decide the First Appeal; and as to in what manner, it should have take into consideration the evidence; which has been considered by the Trial Court and the only precaution, herein, once again, which has been laid down is that the Appellate Court's judgment should reflect, a proper appreciation of facts and evidence and application of mind, and if that is apparently reflected from the judgment under challenge, it would be a substantial compliance of the provisions of Order 41 Rule 31 of the CPC, once it is based upon an individual and meticulous assessment made by the Court.

31. Reverting back to the circumstances which engages consideration, in the present case, it has been harped upon; by the learned Senior Counsel for the appellant in the light of the provisions contained under Order 41 Rule 31 of the CPC, and the directives which were issued by the judgment of remand by the Second Appellate Court on 26th July, 2017, I am of the view that if the present Appellate Court's judgment is taken into consideration, in fact, it doth satisfy the test of Order 41 Rule 31 of the CPC, and the judgment itself cannot be said to be suffering from any vices for the following reason:-

i. That while deciding issue No. 4, the aspect about the fact of creation of a tenancy over a land in pursuance to the agreement of tenancy which was admittedly entered into, whether it entailed and included in it a right of construction, vested with the defendant/appellant, herein, or not, the learned Trial Court while dealing with the finding on issue No.4, pertaining to the age of construction and the right of the construction, which was reserved by the agreement of tenancy, in fact, has recorded a specific finding that the defendant/appellant, has miserably failed to place any evidence on record, to show as to when the construction was raised ? and whether the construction existed from the first phase of the earlier tenancy ? which was decided by the earlier judgment rendered by the Appellate Court. All these facts were utterly failed to be established by the defendant/appellant by any credible evidence which were adduced, before the learned Trial Court and, which has been concurrently recorded by the Appellate Court in para 8 of the said judgment, wherein, it has been observed that the defendant/appellant, has not been able to prove that whether the construction was raised prior in time, i.e. after 1965, when the first tenancy was created, or subsequent to 1st April, 1985, when the tenancy was

reduced by a fixed term tenancy expiring on 31.03.2000 by an agreement entered into between the parties, subsequent to the decree of 30.04.1983, rendered in Civil Appeal No. 29 of 1983, decided between the parties.

32. Hence, in an eventuality of failure to prove, the date and age of construction, the immunity from eviction, as sought to be argued by the counsel for the appellant under the pretext of Section 29-A, would not be available or attracted in the present case.

33. There is another logic for not accepting the arguments of the learned Senior Counsel, is that if the judgment of the Appellate Court, is taken into consideration, it had applied its mind, considered the evidence, which was adduced by the respective parties, and the other evidence and the material, which was brought on record, for the purposes of determination of a conjoint reading, about the status of the tenancy, as to whether it was a fixed term lease, if so, its impact and the continuance of the tenancy after the expiry of the period of tenancy i.e. after 31.03.2000, the status of the defendant/appellant has been rightly held to be "as a tenant at sufferance", because the tenancy which could be terminated by issuance of the notice or even without issuance of the notice when the period of tenancy has expired, and the occupant tenant is held to be having a status of tenant at sufferance. Hence, there is no anomaly as such, in the impugned judgments, which is apparent from the fact of the judgments under challenge.

34. Under the facts of the present case, as it has been dealt by the Appellate Court, the defendant/appellant in para 9 of the written statement, has rather principally admitted that "he has rendered the rent till 31st March, 2000". In the written statement, it had never been a case of the defendant/appellant ever pleaded that after the expiry of fixed term tenancy on 31st March, 2000, the plaintiff/respondent had ever accepted the rent beyond the period of

31st March, 2000, and hence, the Appellate Court has rightly observed, that no rent beyond the period of 31st March, 2000, was either ever remitted by the defendant/appellant or accepted by the plaintiff/respondent, and hence, in that eventuality of an expiry of the fixed term tenancy, where the rent has not been accepted, the status of the defendant/appellant cannot be acquired to be "a tenant by holding over", because there was no evidence whatsoever which was placed on record by the defendant/appellant, that any rent was ever paid or even attempted to be paid by the appellant after 31st March, 2000, and hence, the status of the defendant/appellant was a tenant at sufferance and not that of a tenant at holding over.

35. Apart from it, if the principles of Section 29-A of Act No. 13 of 1972, which is sought to be attracted, is taken into consideration, which is sought to be attracted, is extracted hereunder :-

"[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 landlord 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 or 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 application to the court, unconditionally offers to pay to the landlord, the enhanced rent of 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 of any execution 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 applies 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.]"

36. If its Sub-section (3) is taken into consideration, where the protection from eviction has been provided under Sub-section (2), the process of eviction is protected by Sub-section (3), which has made the provisions of Section 20 of Act No. 13 of 1972, applicable,

even in relation to any tenement or a tenancy, which is referred to in relation to a land under Sub-section (2) of Section 29-A of the Act, where the right of construction has been granted though the fact of construction and its age of construction was never proved as already dealt above.

37. In fact, in principle, if Section 20 (2) and its proviso is read along with Sub-section (3) of Section 29-A of the Act No. 13 of 1972, the proviso does not protect the initiation of the proceedings for determination of a tenancy which has expired as per the agreed afflux of time, particularly when, it is a fixed term tenancy, for which, a reference to the provison contained under Sub-section (2) of Section 20 of the Act, becomes relevant, which is extracted hereunder :-

"(2) A suit for the eviction of a tenant from a building after the determination of his tenancy may be instituted on one or more of the following grounds, namely:

(a) that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand:

Provided that in relation to a tenant who is a member of the armed forces of the Union and in whose favour the prescribed authority under the Indian Soldiers (Litigation) Act, 1925 (Act No. IV of 1925), has issued a certificate that he is serving under special conditions within the meaning of Section 3 of that Act or where he has died by enemy action while so serving, then in relation to his heirs, the words four months in this clause shall be deemed to have been substituted by the words one year ;

(b) that the tenant has wilfully caused or permitted to be caused substantial damage to the building;

(c) that the tenant has without the permission in writing of the landlord made or permitted to be made any such construction or structural alteration in the building as is likely to diminish its value or utility or to disfigure it;

(d) that the tenant [has without the consent in writing of the landlord used it for a purpose other than the purpose for which he was admitted to the tenancy of the building or otherwise done any act which is inconsistent with such use], or has been convicted under

any law for the time being in force of an offence of using the building or allowing it to be used for illegal or immoral purposes;

(e) that the tenant has sublet, in contravention of the provisions of Section 25, or as the case may be, of the old Act the whole or any part of the building;

(f) that the tenant has renounced his character as such or denied the title of the landlord, and the letter has not waived his right of re-entry or condoned the conduct of the tenant;

(g) that the tenant was allowed to occupy the building as part of his contract of employment under the landlord, and his employment has ceased."

38. Under the fact, the circumstance of the present case, which has been dealt with by the Appellate Court, in the light of the provisions contained under Sub-section (3) of Section 29-A to be read with proviso to Sub-section (2) of Section 20, since the status of the appellant since being determined as to be a tenant at sufferance, he will not acquire an immunity from eviction, because of the reasons that the tenancy was created of a land and the eviction is protected by the proviso to Section 20 (2), and that too, if it is correlated and read with the finding that the tenant has not been able to establish the fact of evidence as to when the construction was raised by him, over the land and what was age of construction, which according to him, was leased by an agreement after the Appellate Court's judgment in Civil Appeal No. 29 of 1983. It was burden which was to be discharged by the defendant/appellants, which they have utterly failed to discharge, thus the view taken by the Court below cannot be faulted.

39. Its not only that even the oral testimony of DW1 Mr. Rajesh Singhal, itself is taken into consideration, he admits the fact that the tenancy has ended on 31st March, 2000, and in his statement, he has also admitted the fact that he has remitted the rent only up till 31st March, 2000, and hence, the proceedings before the Court below, will fall to be within the ambit of Sub-section (3) of Section 29-A to be read with Section 20 (2) of Act No. 13 of 1972.

40. In view of the apparent application of mind, and the findings which has been recorded by the learned Appellate Court, is based on a complete and a total appreciation of facts and recording the reasonings, the judgment do not suffer from any apparent error; as the defendant/appellant's status has been appropriately held is a tenant at sufferance, as a consequence of the expiry of period of fixed term tenancy based on a registered agreement for lease, which stood terminated on 31st March, 2000, and which even happened to be the admitted case of the defendant/appellant also before the Courts below, which has been concurrently settled by both the Courts below.

41. Hence, the Second Appeal does not call for any interference nor any substantial question of law as such is required to be answered, which is alleged to be under consideration, accordingly, the Second Appeal lacks merit and the same is accordingly dismissed.

(Sharad Kumar Sharma, J.) 23.03.2021 Shiv