Satish Chandra @ Satya Prasad and Others vs Roshan Lal (since deceased Smt. Sundari Devi, Rajesh Kumar and Ravindra Kumar) and Others

Prafulla C. Pant, J.—This revision, preferred u/s 25 of the Provincial Small Cause Courts Act, 1887, is directed against the judgment and order dated 30.07.1998, passed by Judge, Small Cause Courts / District Judge, Pauri Garhwal, in S.C.C. Suit No. 07 of 1993, whereby the landlord''s suit for recovery of arrears of rent, mesne profits and for eviction of the defendants (present revisionists) is decreed.

Heard learned Counsel for the parties.

Brief facts of the case are that, admittedly, Pallu Ram (father of plaintiffs No. 1 to 5 and husband of plaintiff No. 6) was the original landlord of the house in suit situated in Satpuli (not municipal area) in District Pauri Garhwal. Jagdish Prasad (father of defendants No. 1 to 3 and husband of defendant No. 4) was the original tenant in the house. It is also not disputed that the rate of rent was Rs. 600/- per month. It is also admitted between the parties that on 20th November 1987, advance rent to the tune of Rs. 32,000/- was paid for the period till April 1992 by the original tenant to the original landlord. After the death of the original landlord, plaintiffs (present respondents) inherited the ownership and landlordship of the house, and after the death of original tenant, the defendants (present revisionists) inherited the tenancy. It is alleged in the plaint that after April 1992, no rent was paid by the defendants. Therefore, after giving notice u/s 106 of the Transfer of Property Act, 1882, the suit was filed for eviction of the defendants and also for realization of arrears of rent and mesne profits.

The trial court issued summons to the defendants, who filed their written statement in which the tenancy and the rate of rent was admitted. It is also admitted that Rs. 32,000/- were paid by the original tenant to the original landlord. However, it is pleaded that Rs. 30,000/- was paid as advance rent on 12.03.1990, and as such, after April 1992, it cannot be said that default was committed in payment of the rent. Apart from this, the validity of the notice is also challenged.

The trial court after recording the evidence and hearing the parties, decreed the suit against the defendants. Hence, this revision was filed by the tenants / defendants before the Allahabad High Court on 03.08.1998, where it was admitted on 13.08.1998. The revision is received by this Court u/s 35 of the U.P. Re-organization Act, 2000, for its disposal.

There were only two points of determination before the trial court, on which findings were recorded by it, in favour of the plaintiffs. The said two points of determination, which were formulated by the trial court, read as under:

i. Whether, Rs. 30,000/- were paid by the tenant on 12.03.1990, as advance rent?

ii. Whether, the notice of eviction is illegal, if so, its effect?

Mr. Raman Kumar Shah, learned Counsel for the revisionists argued that the trial court has not appreciated correctly the evidence adduced on behalf of the defendants. In this connection, he referred to the statements of P.W. 1 Balraj Singh Tomar, D.W. 3 Pitambar Dutt, D.W. 4 Buddhi Ballabh and D.W. 5 Satya Prasad. I have gone through the said statements (copies of which are filed with affidavit) and other evidence on record, and do not find any error committed by the trial court in appreciating the evidence. Otherwise also, revisional court in its revisional jurisdiction cannot re-appreciate the evidence on record, unless the trial court has committed gross error of law in appreciating the evidence. The burden to prove that on 12.03.1990, Rs. 30,000/- were paid by the defendants to the original landlord was on the defendants, which is a disputed fact and both the parties adduced their oral evidence oath against oath in support of their cases. Also, both the parties also adduced evidence of the handwriting expert witnesses as to the signatures of the person, who is said to have signed the disputed receipt. I do not find any error of law committed by the trial court in appreciating the evidence on record to arrive at the finding that the defendants committed default in payment of rent after April 1992, as there was no occasion for the tenant to pay advance rent in the year 1990, when the rent was already paid for the period till April 1992.

The next submission made on behalf of the revisionists is that the notice given u/s 106 of the Transfer of Property Act, 1882, is not a valid notice as it is pleaded in the plaint that service of notice was refused by defendants on 23.02.1993, and it is further pleaded that tenancy stood terminated on 23.03.1993. In this connection, it is submitted on behalf of the defendants that the period between 23.02.1993 and 23.03.1993 is only 28 days and not 30 days. Having heard learned Counsel for the parties, I do not find substance in the submission advanced on behalf of the revisionists, as the suit is not filed within 30 days of the service of notice. Rather, it is filed on 25th of April 1993, i.e. after 59 days of service of notice. In the present case, it does not materially affect the case whether the tenancy stood terminated on 23.03.1993 or 25.03.1993. Though, Section 106 of the Transfer of Property Act, 1882, requires only 15 days notice for determination of tenancy, the State amendment of Uttar Pradesh (U.P. Act No. 24 of 1954), as applicable to the State of Uttarakhand, provides 30 days notice. In view of the principle of law laid down in Smt. Ram Kali Vs. Sia Ram and Others, and Puran Singh v. Dr. R.P. Agarwal 1994 (2) Allahabad Rent Cases 433, there is no illegality in the notice in question.

For the reasons as discussed above, I do not find any jurisdictional error or any other material illegality in the impugned judgment and decree, passed by the trial court. Therefore, the revision is liable to be dismissed. The same is dismissed. However, the revisionists / defendants are allowed one month''s time from today for vacating the house in suit, failing which plaintiffs / respondents may get decree executed.