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2017 Supreme(All) 1697
ALLAHABAD HIGH COURT
Ritu Raj Awasthi, J.
Mazid - Appellant
Versus
Smt. Kamni Sahu & Others - Respondent
Second Appeal No. 62 of 2017
Decided On : 06-02-2017
For the Appellant : Shesh Verma
For the Respondent: Rohit Jaiswal
The legal point established is the importance of considering evidence and legal provisions in landlord-tenant disputes, particularly regarding the service of notice, permission for construction, and court fees for decrees.
Headnote:
Service of Notice - Landlord-Tenant Dispute - U.P. Act No.13 of 1972, Section 29-A, General Clauses Act, Section 27 - The court discussed the service of notice on the defendants, the construction raised with permission from the landlord, and the decree of demolition without payment of court fees. The findings were based on the evidence on record and the legal provisions, and the courts below duly considered the contentions raised by the parties' counsel.
Fact of the Case:
The case involved a dispute between the legal heirs of the original landlord and the original tenant's legal heirs over the possession of land and a construction raised on it. The appellant contested the service of notice, permission for construction, and the decree of demolition without payment of court fees.
Finding of the Court:
The courts below considered the evidence and legal provisions, and decided in favor of the respondent-plaintiff, issuing a decree for ejectment and directing the appellant-defendants to hand over possession of the land after removing the construction.
Issues: The issues included the service of notice, permission for construction, and the decree of demolition without payment of court fees.
Ratio Decidendi: The courts relied on the evidence on record and legal provisions such as U.P. Act No.13 of 1972, Section 29-A, and General Clauses Act, Section 27 to make their findings.
Final Decision: The second appeal was dismissed at the admission stage due to the lack of any substantial question of law.
Ritu Raj Awasthi, J. -- Mr. Rohit Jaiswal, Advocate has put in appearance on behalf of respondents no.1 to 8 and 15. Respondents no.1 to 8 and 15 are legal heirs of original landlord, as such, contesting respondents are duly represented.
2. Respondents no.9 to 14 are the legal heirs of original tenant Ramzan and they were the defendants in regular suit filed by the respondents and their interest is same as of the appellant, as such, no notice is required to be issued to them. Notices to them are hereby dispensed.
3. Heard learned counsel for the appellant as well as learned counsel for respondents no.1 to 8 and 15.
4. This second appeal under Section 100 of Code of Civil Procedure has been filed against the judgment and decree dated 27.10.2016, passed by Special Judge (Prevention of Corruption Act), Court No.1, Lucknow in Regular Civil Appeal No.4400115 of 2008; Smt. Ramzan (dead) and another Vs. Kishan Lal Sahu (dead) and another as well as against the judgment and decree dated 16.04.2008 passed by IIIrd Additional Civil Judge (Junior Division), Court No.35, Lucknow in Regular Suit No.202 of 1992; Ram Charan Sahu (dead) and another Vs. Smt. Ramzan and others.
5. As per given facts, one Kunni Shah had let out the land situated in Mohalla Beharipur, Saadatganj, Lucknow on the monthly rent of Rs.2/- with permission to raise the construction to one Mr. Ramzan-deceased father of the appellant. Late Ramzan had raised permanent construction of one room and tin shed over the land in question for carrying out the business of straw and woods etc.
6. The legal heirs of Kunni Shah (original landlord) i.e. Om Prakash Sahu and others filed a suit for ejectment against late Ramzan, who was subsequently substituted by his legal heirs in regular suit. The appellant-defendants had filed their written statement. The suit filed by the respondents was decreed vide judgment and decree dated 16.4.2008. Thereafter the appellant filed first appeal before the learned District Judge which was transferred to the Court of Special Judge (Prevention of Corruption Act) Court No.1, Lucknow and was decided by the impugned judgment and decree.
7. Learned counsel for the appellant has vehemently submitted that the learned Trial Court has grossly erred in presuming the service of notice on the defendants and thereafter proceeding to decide the suit in favour of plaintiffs. It is submitted that under Section 27 of General Clauses Act the service on defendants was not sufficient and the findings of learned Trial Court in this regard are patently wrong and illegal. It is also contended that the alleged construction over land in question was raised with due permission from the original landlord i.e. Kunni Shah and, as such, the defendants were entitled to get the benefit of Section 29-A of U.P. Act No.13 of 1972. Learned Trial Court has not properly considered the evidence placed on record to prove that said construction was made with the permission of the landlord. It is also contended that learned first appellate court has not framed points of determination and, as such, committed manifest illegality in deciding the appeal on merit.
8. Mr. Shesh Verma, learned counsel for the appellant also submits that the learned Trial Court has granted the relief of demolition in the suit filed by respondents although no Court fees was paid for the decree of demolition.
9. I have considered the submissions made by learned counsel for the appellant and gone through the records.
10. The suit filed before the learned Trial Court was subsequently amended and certain reliefs were also added as it was alleged that during pendency of the suit the appellant-defendants had raised certain construction over the land in question.
11. Learned Trial Court while deciding the suit had framed certain issues, translation of which are reproduced as under: -
"1. Whether at present the property in dispute is an open land or there is any construction over it, as has been stated in the plaint
