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Court No.24
Writ Petition No.74 (RC) of 1992
Smt. Dropati Devi ... Petitioner
Versus
V Additional District Judge, Sultanpur
and others ... Opposite parties
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Hon'ble Rajiv Sharma, J.
Heard Mr. R. K. Tiwari, learned Counsel for the petitioner.
Though the names of Mr. S. K. Mehrotra and Mr. Rajesh Singh
Chauhan have been printed in the cause list as counsel for the
opposite parties, yet none responds on their behalf to press this
petition. As the writ petition is quite old and pertains to the year
1992, I proceed to hear the case finally.
The writ petition is directed against the order of V Additional
District Judge, Sultanpur dated 27.3.1992 allowing the appeal of
opposite party No.4 and dismissing the Suit of landlord/petitioner
which was decreed by the Munsif South, Sultanpur exercising the
jurisdiction of Small Causes Court, who decreed the Suit on
2.5.1990 after considering documentary and oral evidence on
record.
Learned Counsel for the petitioner submits that the
petitioner is a landlady and is owner of the shop in dispute which
was originally tenanted to one Sri Hari Krishna/opposite party
No.3 @ Rs.60/- per month. The opposite party No.3 gave the
shop to Sri Ram Raj/opposite party No.4. The petitioner gave
notice under Section 106 of the Transfer of Proper Act to the
opposite party nos.3 and 4, to which the opposite party No.4
replied mentioning that the opposite party No.3 was not the
tenant, whereas opposite party No.4 was the real tenant. Being
aggrieved, the petitioner filed a Suit which was numbered as
S.C.C. No. 35 of 1982 on the ground that the petitioner gave the
disputed shop to the opposite party No.3 for doing tailoring work
under the name and style ‘Avon’ in the year 1974, who in turn
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sub-let the premises to the opposite party No.4, without obtaining
prior permission from the petitioner. The petitioner has also
mentioned that no rent has been paid from May, 1980 to March,
1981.
The opposite party No.2/Munsiff South framed four issues in
which issue No.3 relates to whether the opposite party No.4 was
the sub-tenant of opposite party No.3, whereas issue nos.1 and 2
relate to tenancy of opposite party No.3. In the written statement,
the opposite party No.3 reiterated that he was never a tenant and
further pleaded that he was working with opposite party No.4.
Thereafter, he established a new shop in the name and style of
‘New Avon’ Tailor. The opposite party No.4 has also filed a written
statement that he is the tenant and he is paying rent @ Rs.40/-
per month.
After considering all aspects of the matter, the Munsiff
South, came to the conclusion that the opposite party No.3 was
the original tenant of petitioner/landlady, who was paying the rent
@ Rs.40/- per month. As regards tenancy, the trial Court recorded
a finding of fact that the opposite party No.4 was the sub-tenant
of opposite party No.3.
Against the order dated 2.5.1990 passed by the Munsiff
South, the opposite party No.4 filed a Revision under Section 25
of Small Causes Court before the V Additional District Judge,
Sultanpur, who allowed the revision by the order dated 27.3.1992
and set aside the judgment and order dated 2.5.1990. While
allowing, the Revision Court has held that notice regarding
ejectment and termination of tenancy is necessary. Further, paper
No.7-Ga is notice, whereas paper No.7-Ga pertains to refusal.
As regards sub-tenancy, the opposite party No.1 held that in
notice, the petitioner has not terminated the tenancy, hence it is
bad, which is patently wrong and against the material on record
insofar as a perusal of Annexure No.1 would show that notice
fulfils the requirement of Section 106 of Transfer of Property Act.
Petitioner’s Counsel submits that even if there are minor
defects in language of notice, then also it is not be faulted, but in
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the instant case, the notice fulfils all ingredients which are
necessary. Further, he asserts that intention of notice is to be
looked into from its language, wherein it has been stated that the
tenancy has been terminated and the petitioner does not want to
keep the opposite party No.3 as tenant. The Revisional Court has
ignored the document mainly Exhibit-1, paper No.7-Ga refusal
and the application sent by the opposite party No.3 for registering
the shop and further document showing the name of opposite
party No.3 in the Nagarpalika record.
Though Mr S. K. Mehrotra is not present, yet I have perused
the affidavits filed by him on behalf of opposite party No.4. In the
said counter-affidavit, he stated that the opposite party No.1
allowed the revision of opposite party No.4, after considering the
entire evidence on record. He further stated that the opposite
party No.4 is the tenant of the accommodation in dispute. Since
the order of trial Court was vitiated by manifest illegality,
Revisional Court has rightly allowed the revision and the
Revisional Order does not suffer from any legal or jurisdictional
error or any error of law. He further stated that the shop in
dispute had been let out by the petitioner only to the opposite
party No.4 and it had never been let out to Hari Kishan, who was
an employee of opposite party No.4 for sometime in the disputed
shop and subsequently he left his job with the opposite party
No.4. Therefore, the tenancy in the above shop in dispute has
remained throughout with the opposite party No.4 and the
allegation that the opposite party No.3 gave the shop to the
opposite party No.4 and had started taking rent from him is
absolutely false, concocted and baseless and is specifically as
such. The question of notice under Section 106 of Transfer of
Property Act had been properly dealt with and considered by the
Revisional Court resulting into a concluded finding of fact needing
no interference. The facts noted in the Revisional Court’s Order
are correct and the same are reiterated. He further averred that
th entry of name of opposite party No.3 in the Municipal Bill was a
manipulated entry which did not reflect the correct state of affairs.
Hari Kishan/opposite party No.3 was never the tenant of the shop
in dispute and his name was wrongly entered in the Municipal
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records which cannot be held to be the evidence to establish the
claim of the petitioner that the opposite party No.4 was not tenant
of the petitioner in the shop in question. The entries in the Nagar
Palika do not constitute the evidence of tenancy in the
accommodation in question. The opposite party No.4 was not
concerned with the making of entires in the Municipal Records
which, therefore, cannot have any evidentiary value against the
opposite party No.4. Further, he reiterated that the opposite party
No.3 was never the tenant in the shop in dispute which in fact had
been let out to the opposite party No.4 by the petitioner.
Rebutting the allegations made by the opposite party No.4,
the petitioner filed supplementary affidavit, wherein it has been
stated that the shop in dispute of which the petitioner is the
landlady was originally let out to the opposite party No.3, who
was running the tailoring shop and after winding up his business,
he gave the shop to Ram Raj/opposite party No.4 on rent basis,
creating a sub-tenancy. Ram Raj started another business of
selling plastic in the shop and Hari Kishan is not taking any
interest in the litigation and Ram Raj is pursuing the matter.
After hearing learned Counsel for the petitioner and
perusing the record, I find that the Revisional Court allowed the
revision merely on technical ground, as the notice under Section
106 of the Transfer of Property Act has not been served properly.
A notice for ejectment and termination of tenancy has been
issued. Sri Bhagwan Das, husband of the petitioner has proved
the notice and has also proved the paper No.7-Ga which is refusal
of notice. Notices which were sent on correct address would be
presumed that the notice has reached to the correct man. As
regards sub-tenancy, the Revisional Court has rejected the plea
on flimsy ground, without considering the document, which shows
the name of opposite party No.3 and the same has been acted on
the statement of opposite party No.4. Further, the admission is
the best evidence, yet the Revisional Court discarded the said
admission. Further, the Revisional Court held that in the notice,
the petitioner has not terminated the tenancy, hence the notice is
bad, as the notice does fulfil the essential ingredients of the
provisions of Section 106 of the Transfer of Property Act. Even if
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there are minor contradictions in language, then also it is not to
be faulted. The intention of notice is to be looked into from its
language which reveals that tenancy has been terminated and the
petitioner does not want to keep the opposite parties as her
tenant. Therefore, the impugned order suffers from illegalities and
infirmities.
Accordingly, the writ petition is allowed and the order dated
27.3.1992 passed by the opposite party No.1 is hereby set aside.
It is further directed that the premises in question shall be handed
over by the opposite parties by 31.7.2011 provided he pays the
rent regularly.
Dt. 6.8.2010
Lakshman/