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IN THE HIGH COURT OF ALLAHABAD
VIRENDRA KUMAR-II, J.
Radha Krishna Ji Esthapit Mandir – Appellant
Versus
Ganesh Prasad Mishra & Another – Respondents
Second Appeal No.256 of 2001
Decided on : 18-11-2019
The court set aside the impugned judgment and restored the judgment of the trial court, holding that the notice under Section 106 of the Transfer of Property Act, 1882, was valid and the tenancy of the respondents was liable to be terminated.
Fact of the Case:
The appellant/plaintiff filed a suit for eviction and damages for wrongful use and occupation (mesne profits) against the respondents, alleging that the respondents were tenants at the rate of Rs. 7 per month and had dug the shop from inside and changed its original shape. The respondents claimed that they had made constructions in the disputed shop by taking oral permission from the representative of the plaintiff and that they had constructed a staircase 15 years ago for the purpose of repair of the roof. The trial court decreed the suit, but the first appellate court set aside the judgment and decree of the trial court.
Finding of the Court:
The court held that the notice under Section 106 of the Transfer of Property Act, 1882, was valid and the tenancy of the respondents was liable to be terminated. The court relied on the following legal provisions and precedents: * Section 106 of the Transfer of Property Act, 1882, as amended by Act 3 of 2003, which provides that a notice under sub-section (1) of Section 106 shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section. * Reddy Ramamurthy (died) by LRs. Vs. Goli Bhaskara Rao 2006 SCC Online AP 629, in which the Andhra Pradesh High Court held that a notice under Section 106 of the Transfer of Property Act, 1882, is not invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section. * Dharam Pal v. Harbans Singh, (2006) 9 SCC 216, in which the Supreme Court held that an objection as to the invalidity or insufficiency of notice under Section 106 of the Transfer of Property Act should be specifically raised in the written statement, failing which it will be deemed to have been waived.
Issues: 1. Whether the notice dated 3.8.1993 fulfills the requirement of Section 106 of Transfer of Property Act? 2. Whether the U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act 1972 is applicable in the present case? 3. Whether in the present case notice under Section 106 Transfer of Property Act was required?
Ratio Decidendi: The court held that the notice under Section 106 of the Transfer of Property Act, 1882, was valid and the tenancy of the respondents was liable to be terminated because: * The notice was served on the respondents on 10.8.1993 by refusal as reported by Postman. * The respondents did not plead the defect of short period mentioned in the notice under Section 106 Transfer of Property Act in their written statement. * The U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act 1972 is not applicable to the disputed property, as it is not situated in urban limits of city Sitapur or any municipality or notified area.
Final Decision: The court set aside the impugned judgment and restored the judgment of the trial court, holding that the notice under Section 106 of the Transfer of Property Act, 1882, was valid and the tenancy of the respondents was liable to be terminated.
JUDGMENT :
VIRENDRA KUMAR-II, J.
1. The present second appeal has been preferred assailing impugned judgment and decree dated 27.03.2001 delivered by the Court of Additional District Judge, III, Sitapur in Civil Appeal No. 6 of 2001: Ganesh Prasad Mishra and others Vs. Radha Krishna Ji Mandir, Kamlapur. The first appellate Court has set aside judgment and decree dated 19.12.2000 delivered by the Court of Civil Judge (Junior Division), Biswan Sitapur in Civil Suit No. 17 of 1994 (Radha Krishnaji Virajman Mandir, Kamlapur Vs. Ganesh Prasad Master and another. Learned trial Court vide judgment dated 19.12.2000 had decreed the suit of the plaintiff/appellant.
2. The present appeal admitted on the substantial question of law, Serial No. E, F, G, H formulated in the grounds of the appeal vide order dated 03.07.2001 passed by this Court. The relevant substantial questions of law are as follows:
F. Whether the notice dated 3.8.1993 fulfills the requirement of Section 106 of Transfer of Property Act ?
G. Whether in the present case notice under Section 106 Transfer of Property Act was required ?
H. Whether the judgment of the lower appellate court is vitiated as the lease in favour of the Defendant/ respondents was compulsorily registerable under Section 17 of the Registration Act as it was for a period of more than year ?"
3. It is contended by the appellant that appellant/plaintiff filed Civil Suit for eviction and damage for wrongful use and occupation (mesne profits), being owner of the disputed shop. The defendant no.1/respondent Ganesh Prasad Mishra was tenant at the rate of Rs. 7 per month. Defendant no.2/respondent is son of defendant no.1 and he is running the business of Cycles in the disputed shop. The defendants have no authority to make alteration or addition in the shop. They had dug the shop from inside and changed its original shape. The plaintiff/appellant tried to restrain them, from altering the position and the shape of the shop. The respondent/defendants did not pay heed to the objection raised by the plaintiff. Therefore, their tenancy was terminated through registered notice and appellant asked them to vacate the shop on 31.08.1993 and to pay the amount of damages. The respondents did not comply the notice, therefore, Suit was instituted in the Court of Civil Judge (Junior Division). Therefore, relief has been sought that judgment and decree passed by appellate Court be set aside and judgment and decree dated 19.12.2000 passed by the Court of Civil Judge (Junior Division), Biswan Sitapur in Civil Suit No. 17/94 be restored and affirmed.
4. The factual matrix of the present case giving rise to institution of present second appeal is that plaintiff Radha Krishna Ji Temple Esthapit, Kamlapur, situated in Mazra Maholi, Pargana Peer Nagar, Tahsil Sidhauli, District Sitapur, is a registered trust and disputed shop belongs to the plaintiff and vested in it. The respondent no.1 Ganesh Prasad Mishra is tenant of the disputed shop at the rate of Rs. 7 per month and defendant no.2/respondent no.2 is his son and doing business of Cycles in this shop. The respondents dug the shop and broke the roof and constructed staircase and other illegal constructions without consent and permission of the plaintiff/appellant and altered the original shape and position of the shop. Therefore, tenancy of the respondent no.1 was terminated through registered notice and he was asked to vacate the shop by 31.08.1993.
5. Per contra respondents contended in their written statement that notice under Section 106 Transfer of Property Act was not given to them. They made constructions in the disputed shop by taking oral permission from representative Cashier Late Sri Ramendra Kumar Saxena of plaintiff/appellant after paying amount of Rs. 5000/-, who was looking after affairs of the temple and its other properties. It is fur
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