JUDGMENT
P. K. Jain, J.
1. This is defendant’s revision against judgment and decree dated 29th February. 2000 in Small Cause Suit No. 5 of 1992 whereby the suit of the plaintiff for recovery of arrears of rent and mesne profit and pendente life future mesne profit and also for ejectment of the defendant has been decreed.
2. The plaintiff/opposite-party filed suit for recovery of arrears of rent amounting to Rs. 19.600, arrears
of mesne profit amounting to Rs. 1,786.67 paise the recovery of arrears of water tax sewer tax amounting to Rs. 5.184 and pendente lite and future mesne profit and water tax and sewer tax and for eviction of the revisionist from suit property on the ground that the defendant has defaulted in payment of rent and arrears of water tax and sewer tax. The plaintiffs case was that the suit premises were newly constructed and first assessment of house tax was made in August, 1982. Provisions of U. P. Act 13 of 1972 were not applicable to the suit property. Monthly rate of rent was Rs. 800 which did not Include water tax and sewer tax. The defendant did not pay arrears of rent from 1.7.1990 The arrears of water tax and sewer tax were not paid since 15.8.1982. A notice under Section 106 of the Transfer of Property Act was served personally upon the defendant on 9.12.1991. The defendant, however, did not clear the arrears of rent and tax and also did not vacate the suit premises.
3. The defendant contested the suit admitting that plaintiff was landlord of the suit premises. it was. however, alleged that the building in question was assessed to house tax from 1978. and hence provisions of U. P. Act 13 of 1972 were applicable. The amount of Rs. 800 per month Included the taxes also. Rs. 700 was rent and Rs. 100 per month were paid towards taxes : there are no arrears of rent or tax from 1.7.1990. The defendant had paid a sum of Rs. 10.000 to the husband of the plaintiff towards rent and tax. which was paid on 2.2.1992. However, the receipt was not given by the husband of the plaintiff. The sum of Rs. 10,000 was liable to be adjusted towards arrears of rent. Besides this, a sum of Rs. 7.000 was given as advance which also deserves to be adjusted. The amount of taxes was being claimed excessively. The notice served is illegal. The plaintiff is residing in part of the suit property since 1976.
4. The trial court framed a number of Issues for determination. Main Issues were :
(1) Whether the provisions of U. P. Act 13 of 1972, were applicable to the suit property, if so Us effect?
(2) Whether the amount of tax was included in the monthly amount of rent of Rs. 800 or, the tax was payable separately? (3) Whether defendant had defaulted in payment of rent?
5. On consideration of the evidence adduced by the parties, the trial court held that the suit building was not governed by the provisions of U. P. Act 13 of 1972. that the defendant was in arrears of rent ; that the amount of Rs. 800 included house tax and sewer tax. The trial court, therefore, partly decreed the suit.
6. Aggrieved by the Judgment and decree passed by the trial court the defendant has filed present revision. it has been submitted by Sri Vijay Bahadur, learned counsel for the revisionist that finding of the trial court on issue No. 1 is erroneous ; and that the evidence of the defendant has not been considered by the trial court. Sri S. C. Tewari appearing for the plaintiff/opposite-party, caveator has submitted that the plaintiff has adduced evidence to show as to when the first assessment was made after construction of the building and the defendant had failed to adduce the evidence as to when building was constructed or first occupied, therefore, findings of the Court below on Issue No. 1 are correct. it is also submitted that the Court below has considered the entire evidence adduced by the parties.
7. Section 2 (2) of the U. P. Act 13 of 1972, as it stood on the date of filing of the suit, read as follows :
2. (Except as provided in subsection (5) of Section 12. subsection (1A) of Section 21. subsection (2) of Section 24, Sections 24A. 24B, 24C or sub-section (3) of Section 29. nothing in this Act shall apply to a building during a period of ten years from the date
on which Its construction is completed) :
(Provided that where any building is constructed substantially out of funds obtained by way of loan or advance from the State Government or the Life Insurance Corporation of India or a Bank or a Co-operative Society or the Uttar Pradesh Awas Avam Vikas Parishad and the period of repayment of such loan or advance exceeds the aforesaid period of ten years then the reference in this sub-section to the period of ten years shall be deemed to be a reference to the period of 15 years or the period ending with the date of actual repayment of such loan or advance (including interest), whichever is shorter) :
(Provided further that where construction of a building is completed on or after April 26, 1985, then the reference in this sub-section to the period of ten years shall be deemed to be a reference to a period of 20 years from the date on which Its construction is completed).
Explanation-1- (For the purposes of this Section)
(a) the construction of a
building shall be deemed
to have been completed
on the date on which the
completion thereof is reported to or otherwise
recorded by the local,
authority having
Jurisdiction, and in the
case of a building subject
to assessment, the date
on which the first
assessment thereof comes into effect, and where the
said dates are different,
the earliest of the said
dates, and in the absence
of any such report, record
of assessment, the date
on which it is actually
occupied (not including
occupation merely for the
purposes of supervising
the construction or guarding the building under construction) for the first time :
Provided that there may be different dates of completion of the, construction in respect of different parts of a building which are either designed as separate units or are occupied separately by landlord and one or more tenants or by different tenants ;
(b) “construction” includes any new construction in place of an existing building which has been wholly or substantially demolished ;
(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 safd addition.
Explanation II …..
Explanation III…..
8. The plaintiffs case as already pointed above is that the building is a newly constructed one and it was assessed to house tax for the first time in August. 1982. The defendant’s case is that the building was assessed to house tax in the year 1978. and there were tenants in the suit building prior to the occupation of the building by the defendant. To establish that the building was a newly constructed one, the plaintiff examined herself as P.W. 1, Jagat Narayan, as P.W. 2 and Ashok Kumar Narayan Shukla as P.W. 3 and also filed copy of the plan of construction duly sanctioned by the concerned authorities. The defendant examined herself as D.W. 1. Raj Bahadur as D.W. 2 and Devi Nandan as D.W. 3. The trial court while discussing the evidence of the parties observed that
the defendant has admitted that the shop in suit/building was taken on rent on 7.7.1982. According to the plaintiff, she had got the construction plan sanctioned by the Kanpur Vikas Pradhikaran which was sanctioned on 25.6.1981 and permission to construct was granted on 30.6.1981. Trial court also observed that admittedly property in suit falls within the jurisdiction of the Kanpur Vikas Pradhikaran and the permission was granted by the Development Authority, Kanpur, in accordance with provisions of Section 15 of the Nagar Yojna and Vikas Adhiniyam. The trial court also observed that Ashok Kumar P.W. 3 has categorically stated that the building was constructed after the sanction granted by the Vikas Pradhlkaran. The plaintiff also filed paper No. 75 (C) showing that the Kanpur Nagar Mahapaltka passed the assessment order on 1.4.1983. The trial court also considered the document filed by the defendant/revisionist and observed that paper No. 74 (C) shows that one Pradeep Narayan Saxena was running a dairy between the period 1973-78 He was possessed of two Kotharies having tiled roof and tin-shed. The trial court also considered the admission of the defendant that earlier the building had tiled roof and tin-shed but later on the building was re-constructed. From the evidence of the parties, trial court recorded a finding of fact that prior to 1981 there were some tenants of the building which was having tiled roof and Unshed, but in the year 1981 after obtaining required permission and getting the construction plan sanctioned by the Vikas Pradhlkaran Kanpur the plaintiff raised new constructions and the building was first assessed to house tax from 1.4.1983, therefore, in view of Explanation (1) to sub-section (2) of Section 2 of the U. P. Act 13 of 1972, the building shall be deemed to have been constructed on 1.4.1983.
9. Learned counsel for the revisionist has. however, submitted that the plaintiff had not pleaded as to when the building was constructed or when it was completed. An
Information of completion of the building must have been given either by the plaintiff or by the employees of the Vikas Pradhikaran, Kanpur, prior to the assessment dated 1.4.1983. Nothing was pleaded in the plaint nor any evidence has been adduced.
10. Explanation I (a) of Section 2 (2) of U, P. Act No. 13 of 1972, provides as to when a building shall be deemed to have been completed in case there is no evidence as to when the building was actually completed. it provides that (i) the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having Jurisdiction, (ii) in case of a building subject to assessment, the date on which the first assessment thereof comes into effect, and where there is difference in the dates of reporting of completion or recording completion by the local authority and the date of first assessment, then the earliest of the said dates shall be the date of construction of the building and (Hi) in the absence of any such report of completion or record of assessment. the date on which the building is actually occupied for the first time. Thus, there are three different contingencies or situations when a construction of the building is deemed to have been completed. The third situalion, i.e., the date on which the building is occupied for the first time shall be effective only when there is no evidence with regard to the first two-situations.
11. in the instant case, the plaintiff has pleaded in her plaint that the building under tenancy of defendant was newly constructed one and it was first assessed to house tax in August. 1982. No averment was made in the plaint as to when the Information of completion of the construction of the building was reported by the plaintiff to the Vikas Pradhikaran, Kanpur, or as to when it was noted by the authorities of the Vikas Pradhikaran. Kanpur. Further no evidence was adduced to this effect. To establish her case, the plaintiff filed copies of the plan
sanctioned by the Vikas Pradhikaran, Kanpur, under Sections 14 and 15 of the Urban Planning and Development Act and permission for construction granted under the said Act. There is no dispute that the construction plan was sanctioned by the Vikas Pradhikaran, Kanpur, on 25.6.1981 and permission to construct was granted on 30.6.1981. On the other hand, the defendant-revisionist in her written statement did not specifically deny that the existing building in question was constructed after sanction of the plan by the Vikas Pradhikaran, Kanpur, and also after grant of permission to construct. Simply this much has been stated in the written statement that earlier the building was assessed to house tax for the assessment year 1978-1987 and there were certain tenants in the building. The trial court has considered the entire evidence including the admission of the defendant-revisionist during her deposition that originally there existed thatched building in which Pradeep Saxena was tenant and used to run dairy. !t is also admitted that now the thatched building is not there and now in place of thatched building, pucca construction exists, it was never pleaded that reconstruction was only in respect of the thatched ‘building and the disputed shops were never reconstructed after demolition of the old constructions. Once the plaintiff has pleaded in her plaint that the building is a new construction and it was assessed to house tax for the first time in August.
1982 and evidence was led in support of the construction of the building after obtaining permission for construction in June, 1981, it was for the defendant-revisionist to have specifically pleaded as to how much was reconstructed after demolition. it was also for the defendant-revisionist to have led evidence to establish that the assessment in the year 1982 or 1983 was not in respect of the shops in question. There is no such pleading nor any evidence was led in this regard in the absence of such specific pleading and on appraisal of the evidence, the trial court in my view, rightly held that the building
was a new construction and the provisions of U. P. Act No. 13 of 1972, were not applicable.
12. Learned counsel for the revisionist has vehemently argued that the plaintiff has not pleaded in the plaint as to when the building was constructed. Hence, evidence beyond the pleadings could not have been allowed or considered. Reliance is placed upon decision of the Hon’ble Supreme Court in Maqboolunnisa v, Mohd. Saleha Quaraishi, 1999 (35) ALR 331 (SC). That was a case in which an application for release of the shop was made under Section 21 of the Act on the ground of bona fide need. During the pendency of the proceedings, another shop measuring 10′ x 10′ was vacated by another tenant. The landlady-applicant did not amend the pleadings to assert that the shop which had been vacated by another tenant was not sufficient for her son to shift his business. At the trial, however, evidence was led that by breaking wall between the suit shop and the shop vacated by another tenant, the entire area can be converted into one big shop to enable the son to carry on his business. The Hon’ble Supreme Court held that such evidence should not have been allowed to let in since it was beyond the pleadings. The above decision, however, in my view does not apply to the facts of the present case. At the outset, it may be pointed out that Explanation I (a) of Section 2 (2) of U. P. Act No. 13 of 1972, contemplates three situations as pointed out above. if there is evidence with regard to the date of completion of the construction of the building by way of reporting to the local authority or otherwise being recorded by the local authority, then in such ‘a case, the construction of the building shall be deemed to have been completed on such date, whichever is earlier. in the absence of any pleading in this regard, the completion of the construction of the building is to be deemed on the date of first assessment and in the absence of both either reporting for completion of the construction or recording of the same by the local authority or first assessment by the
local authority, the date of first occupation of the building is deemed to be the date of completion of the construction in the instant case, none of the parties pleaded as to when the completion of construction of the building was reported to or recorded by the local authority. None of the parties also led any evidence in this regard. The plaintiff pleaded the date of first assessment by stating in the plaint that the first assessment was made in August. 1982. To prove that it was a new construction, the plaintiff besides adducing oral evidence also adduced evidence of obtaining permission to construct from total authority and sanction of the construction plan by the local authority. Such evidence cannot be said to have been adduced beyond the pleadings because the plaintiff categorically pleaded in the plaint that the building was a new construction, it was not necessary for the plaintiff to have adduced evidence as to when the completion of the construction was reported to or it was recorded by the local authority. This was permissible in view of the provisions of Explanation I (a) of Section 2 (2) of U. P. Act No. 13 of 1972. On the other hand, it may be noted that the defend ant-revisionisi had attempted to adduce evidence by saying that only the thatched portion was reconstructed and the shop in suit was not a new construction when there was no -such pleadings by the defendant in her written statement.
13. Another decision relied upon by the learned counsel for the revisionist is Surendra Kumar Jain alias Sunni v. Shanti Swaroop Jain and others. ARC, 1996 (1) 316 (SC). That decision also does not help the revisionist. That was a case in which the date of completion of the construction of the building was not reported nor it was recorded by the local authority. A notice was given by the Municipal authority for assessment on 15.11.1977. The Hon’ble Supreme Court held that this date should be taken to be the date as the Municipal authority had taken notice of the construction of the building of such date and such date becomes relevant for the purpose of
considering the deemed date of construction, in the instant case there is no evidence as to when notice of assessment was given by the local authority to the plaintiff-landlady. The plaintiff has, however, pleaded that the assessment was effective from August. 1982, it appears that the assessment order was passed some where in April. 1983 and the trial court has held that the date of completion of the building shall be deemed from 1.4.1983. This in my view is not correct for the reasons that admittedly the assessment was effective from August, 1982. it is common practice that after completion of the construction of the building the same is reported or is noticed by the local authority concerned, the assessment order is passed on a subsequent date, which is effective from an earlier date. in view of the provisions of Explanation I (a) of Section 2 (2) of the Act the date from which the assessment is effective, i.e., the date on which the first assessment comes into effect is the date of construction of the building. To this extent the finding of the trial court deserves to be modified.
14. Even though an argument is advanced on behalf of the revisionist that some of the evidence adduced by the defendant has not been considered by the trial court but the learned counsel has not been able to point out as to which evidence of the defendant was not considered by the trial court or which part of the evidence has been misread by the trial court.
15. Having heard learned counsel for the parties and having considered the rival arguments, I find that there is no merit in this revision except error in finding with regard to the deemed date of completion of construction which has been pointed out above. That, however, does not affect the final result of the suit and the trial court has rightly partly decreed the suit of the plaintiff.
16. The revision is, therefore, dismissed.
17. Costs of the present revision are, however, made easy.