# Dev Raj Defendant- -Revisionist v. Smt. Rukmani Devi Plaintiff- 146 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 4 ILRA 145
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-20
- **Case number:** Civil Revision No. 104 of 2001
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dev-raj-defendant-revisionist-v-smt-rukmani-devi-plaintiff-146-indian-law-49223
- **Pages:** 9

## Headnote

A. Tenancy Law - UP Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 - Section 2(2), Proviso -
Eviction suit - Applicability of the Act -
Map
of
house
was
sanctioned
on
19.04.1984 - Presumption of construction
- Date of sanctioning the map, how far
relevant - Held, as per the relevant
proviso enumerated in Section 2 where
construction of a building is completed on
or after April 26, 1985 then the reference
in this section to the period of 10 years
shall be deemed to be a reference to a
period of 40 years from the date on which
its construction is completed - House in
suit is not governed by UP Act No. 13 of

## Text

4 All. Dev Raj Vs. Smt. Rukmani Devi
145

8. Section 7(iv)(c) provides that
in suits for a declaratory decree with
consequential relief, the Court fee shall be
computed according to the amount at
which the relief sought is valued in the
plaint. The proviso thereto makes it clear
that where the suit for declaratory decree
with consequential relief is with reference
to any property, such valuation shall not be
less than the value of the property
calculated in the manner provided for by
clause (v) of Section 7."

21. Upon applicability of aforesaid
judgments
in
the
present
facts
and
circumstances of the case, it is evident that
suit for declaratory decree has been filed
with consequential relief of only permanent
injunction and not for possession. In such
circumstances,
Court
fees
would
be
payable in terms of Section 7(iv-a) of the
Act and not in terms of Section 7(iv-A) of
the Act and therefore only a fixed Court fee
of Rs.500/- was payable by the revisionist.
The Tribunal has clearly erred in holding
ad valorem Court fee being payable by the
revisionist. It is also a relevant factor that it
can not be assumed that a relief of
possession is to be sought for by the
plaintiff particularly when no such express
relief has been sought in the plaint. The
aforesaid judgments clearly indicate that
Court fee is payable only as per relief
sought in a plaint and not for what it ought
to have prayed for.

22. Learned counsel for opposite
parties has placed reliance on judgment
rendered in the case of Dr. Sushil Suri
(supra) but upon a perusal of same, it is
evident that nothing contrary has been laid
down in the aforesaid judgment, which in
itself is based on judgment rendered by
Supreme Court in the case of Suhrid Singh
(supra) whereby also it has been held that
ad valorem Court fees in such matter is not
paid.

23. Considering aforesaid facts and
the aforesaid judgments, it is apparent that
the impugned order dated 17.11.2022
passed by the Waqf Tribunal in case no.38
of 2020; Ansar Nawaz Khan versus
Tashkeel Ahmad & others is against the
propositions of law and is therefore set
aside.

24. Consequently, revision succeeds
and is allowed. Parties to bear their own
costs.

25. Learned counsel for answering
opposite
parties
submits
that
even
otherwise the suit was not maintainable in
view of the fact that the plaintiff has not
disclosed his locus standi as a Mutwali to
maintain the suit and the value of property
has not been disclosed.

26. With regard to aforesaid
submissions, it is apparent that issue
with regard to maintainability of suit is
not the subject matter of the present
proceedings and for which purpose
opposite party as defendant have a right
to file objections before the Tribunal
concerned.
----------
(2023) 4 ILRA 145
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.12.2022

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Civil Revision No. 104 of 2001

Dev Raj ...Defendant-Applicant-Revisionist
Versus
Smt. Rukmani Devi ...Plaintiff-Respondent
146 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Revisionist:
Sri Rama Goel, Sri Rajesh Tandon

Counsel for the Plaintiff-Respondent:
Sri S.K. Jauhari, Sri Kshitij Shailendra, Sri
S.K. Joshi

A. Tenancy Law - UP Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 - Section 2(2), Proviso -
Eviction suit - Applicability of the Act -
Map
of
house
was
sanctioned
on
19.04.1984 - Presumption of construction
- Date of sanctioning the map, how far
relevant - Held, as per the relevant
proviso enumerated in Section 2 where
construction of a building is completed on
or after April 26, 1985 then the reference
in this section to the period of 10 years
shall be deemed to be a reference to a
period of 40 years from the date on which
its construction is completed - House in
suit is not governed by UP Act No. 13 of
1972. (Para 19 and 20)
B. Evidence Act, 1872 - S. 114(g) -
Burden of proof - Presumption - Nonproduction of public document - Effect
- Rate of rent fixed by the Government
was
very
much
available
in
Collectorate which could be obtained
by the plaintiff land-lord to prove the
averments of the plaint - Held, It is
omission on the part of the plaintiffland-lord
-
A
presumption
arises
against the plaintiff that if any public
document is already available and the
same
has
not
been
filed
by
the
concerned party it would be presumed
that it is against the party who had not
filed it. (Para 22 and 23)
Revision dismissed. (E-1)
List of Cases cited:
1. Ram Swaroop Rai Vs Smt. Leelawati, 1980
ARC 466

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. This civil revision has been filed to
quash the judgment and decree dated 24th
January, 2001 passed by Sri R.B. Singh,
Spl. Judge Anti-Corruption/A.D.J. Bareilly
in SCC Suit No. 23 of 1997.

2. In brief, facts of the case are that
respondent Rukmani Devi filed a suit for
eviction and arrears of rent and damages
against the defendant/revisionist Dev Raj
alleging that the plaintiff is the owner of
House No. 29-A Sindhu Nagar, Mohalla
Katra, Chand Khan Old City, Bareilly.
There is a room, kitchen-cum-store room,
bathroom and latrine room towards NorthEast on the ground floor of the house in
which the defendant is a tenant since 15th
February, 1995 @ Rs.1,000/- per month.
He is also responsible for paying the
electric bill and local taxes. The tenancy
starts from 15th of every month. The
defendant after 15th May 1996 has not paid
rent, mesne profits, electric bill and local
taxes after 15th May, 1996. The plaintiff is
a little educated lady and has a little
knowledge of law. She used to deliver
receipts pasting revenue tickets on blank
papers. She never prepared any copy or
counter foil of it. Therefore, she had not
taken signatures of the defendant on any
counter foil of receipts. After 15th May,
1996, the plaintiff had demanded several
times the rent, mesne profits and amount of
electric bill and local taxes but defendant
ignored and has not paid the same and
started unparliamentary behaviour and
abusing. Therefore, she sent a notice under
Section 106 of the T.P. Act on 06th January
1997 reduced in writing by her Advocate,
Raj Kumar Agrawal. It was delivered to the
defendant same day as dasti notice but
defendant refused to receive the same.
Thereafter, the plaintiff pasted the notice
upon the main door and terminated the
tenancy of the defendant.
4 All. Dev Raj Vs. Smt. Rukmani Devi
147

3. The defendant had filed a suit No.
37 of 1996 Dev Raj vs. Rukmani Devi and
Others and moved temporary injunction
application.
The
plaintiff
had
filed
objection and counter objection and also
copy of notice dated 06th January, 1997 as
Schedule-A and copy of affidavit was also
provided to the counsel of the defendant.
Thus, the defendant had full knowledge of
the notice. In spite of that neither the
defendant vacated the tenanted part of the
house nor provided the possession nor paid
any rent, mesne profit, electric bill amount
and local taxes due upon him. In Para 6 of
the suit, the plaintiff has given the details of
the amount. In Para 8 of the plaint she has
valued the suit and has stated about the
court fees and thereafter, has sought the
relief.

4. The copy of the written statement
has been annexed as Annexure 2 in which
the petitioner has said that provisions of
U.P. Act 13 of 1972 are applicable to the
property in suit. He admitted to be the
tenant and also admitted filing of the suit.
In addition to that he replied that the suit is
not property valued and insufficient court
fees has been paid. The property in suit is
very old. The rear portion of the house was
made in 1973. When the tenancy started,
the house in suit was under the operation of
U.P. Act 13 of 1972. The plaintiff did not
adopted the procedure of allotment which
was necessary. Therefore, the contract
between the plaintiff and the defendant is
against the law and void, and is not
enforceable.
The
defendant
has
not
received any notice under Section 106 of
the T.P. Act. The defendant is tenant @ Rs.
500 per month in which taxes of water and
electric charges are also included. The
defendant has been paying the rent to the
plaintiff but plaintiff had never given
receipt. The plaintiff had taken Rs. 20,000/-
cash for the construction of kitchen with
the condition that this amount would be set
off in the amount of rent but the plaintiff
did not construct the kitchen and got it
lingered.
The
plaintiff
again
started
demanding Rs. 10,000/-. The defendant is a
poor, gentle and peace loving person who
any how passes the life. When he refused to
pay this amount, the plaintiff became angry
and disconnected the electricity of the
defendant and started to dispossess the
defendant forcefully with the help of
unsocial elements. She stared threatening
and tried to throw the household articles of
the
defendant.
Then
he
moved
an
application to the S.P. and filed the suit in
the Court of Civil Judge (Junior Division).
The defendant also sent rent money
through money order but the plaintiff
refused to accept the same. Therefore, he
started depositing the rent in Misc. Case
No. 230/1996 under Section 30 of the U.P.
Act 13 of 1972 in the Court of Civil
Judge(Junior
Division),
Bareilly.
The
plaintiff has no right to sue and the cause of
action. It is wrong to say that the defendant
has not paid the rent after 15.05.1996 in
spite
of
the
repeated
demand.
The
allegations of the ill treatment and abusing
by the defendant is totally wrong, baseless
and concocted. No such notice was given
or pasted on the door of the defendant's
rented room. It is also wrong to say that
copy of the notice along with counter
affidavit had been filed in the original suit
and its copy was given to the counsel of the
defendant. Hence, at this score alone, the
suit is liable to be dismissed. Hence, the
case be dismissed.

5. The suit was decreed and decree for
eviction and for arrears of payment and for
arrears of rent @ Rs.500/- per month was
ordered to be paid by the lower court.
Being
aggrieved,
the
defendant
has
148 INDIAN LAW REPORTS ALLAHABAD SERIES
preferred this SCC revision on the
following grounds that:

6. The impugned order is wholly
illegal. The U.P. Act 13 of 1972 is fully
applicable to the premises in dispute. The
defendant-revisionist has fully proved the
advance given by the plaintiff-respondents
which has not been adjusted. Hence, the
impugned order is wholly illegal. There
was no arrears of rent. Hence, the
impugned order and judgment is wholly
illegal. Until and unless the first assessment
is assumed according to Municipalities Act
as well as under Section 2(2) of the U.P.
Act 13 of 1972 there cannot be any
presumption
of
the
building
being
constructed in the year 1985. Therefore, the
impugned judgment and decree is wholly
erroneous illegal and bad in law. Even if
the Act No. 13 of 1972 is not applicable,
the defendant even assuming without
admitting that Act No. 13 of 1972 is not
applicable
the
defendant-applicant
is
entitled for the benefit under Section 114 of
the T.P. Act. In any view of the matter, four
month rent was not due. Hence, the suit
could not be decreed.

7. It has been held in Ram Swaroop
Rai Vs. Smt. Leelawati, 1980 ARC 466 that
the municipal records appearing on the
completion of construction alone is a criteria
in order to prove the assessment as contained
in the explanation to Section 2(2) of the U.P.
Act 13 of 1972. The trial court has decreed
the
suit
without
examining
the
first
assessment in accordance with Section 2(2)
of U.P. Act No. 13 of 1972 and as such, the
impugned judgment and decree is wholly
illegal and erroneous and bad in law.

8. This Civil Revision was taken up
for hearing on 11.11.2022.

9. No one appeared from the either
side. Since the revision should be decided
on merit, hence, the judgment was reserved
and this judgment is passed on merit.

10. From perusal of file it transpires
that Sri Sarvasri Prakash and Sri Apoorva
Prakash, advocates have filed Vakalatnama
on behalf of defendant land-lord on
12.02.2001. Later on Sri Shailendra Kumar
Jauhari and Kshitij Shailendra, advocates
have filed Vakalatnama from the side of the
respondent, Rukmani Devi on 29.07.2003.
An application to vacate the stay and a
counter affidavit have also been filed on
behalf of respondents.

11. In the counter affidavit the
respondent has reiterated the contents of
her plaint and has denied the averments of
the revision and has said that the provisions
of UP Act No.13 of 1972 are not applicable
as the map of the disputed house was itself
got sanctioned on 13.04.1984 which clearly
shows that the construction were raised
thereafter. She had denied that the house in
suit was constructed in the year 1980.
According to the respondent, the finding
regarding non-applicability of Act No.13 of
1972 while deciding issue no.1 is true and
correct. Further she has averred that there
was no assessment and it was not the case
of defendant revisionist that the building
was subject to municipal assessment.
According to the respondent land-lord, the
finding of the trial court that on the basis of
date of construction the house in suit falls
under the exemptions as enumerated under
Section 2 of the Act is a correct finding.
The ex parte stay order dated 16.02.2001 be
vacated and the amount of monthly rent be
deposited in the bank account of the
respondent land-lord instead of depositing
in the court as the opposite party is finding
4 All. Dev Raj Vs. Smt. Rukmani Devi
149
it very difficult to withdraw the amount
from the court.

12. No rejoinder affidavit has been filed
by the revisionist. The record of the lower court
has been summoned and it is before the Court.

13. The following oral evidence were
adduced by the plaintiff land-lord to prove the
case:

(I) PW-1, Rukmani Devi, plaintiff
land-lord (ii) PW-2, Ghanshyam.

14. Documentary evidences of the
plaintiff land-lord are the map sanctioned by the
Bareilly Development Authority, copy of the
notice, copy of the affidavit produced in
Original Suit No.371 of 1996 (Dev Raj Vs.
Rukmani Devi).

15. From the side of defendant tenant
following witnesses have been testified:

(I) DW-1, Dev Raj, tenant himself
(ii) DW-2, Urmila.

16. The trial court has framed following
points for determination:

(1) Whether the provisions of UP
Act No.13 of 1972 are applicable to the house
in suit?

(2) Whether the notice given by the
plaintiff was served on the defendant?

(3) Whether the house rent is
Rs.1,000/- per month or Rs.500/-?

(4) Whether the defendant had
provided Rs.20,000/- to the plaintiff, if yes, its
effect?

(5) Whether the respondent has paid
the rent from May, 1996?

(6) Whether the respondent has
not paid the rent to the plaintiff since May,
1996?

17. The trial court had decided the
points for determination serially.

18. Point No.1--In this respect the
trial court has concluded that the Act of 13
of 1972 is not applicable to the house in
suit. The basis of the finding is that the map
was sanctioned by Bareilly Development
Authority on 19.04.1984, therefore, it
cannot be said that the house was made in
1980 as alleged by the defendant. It would
have been constructed certainly after 1984.
In this regard the defendant has replied in
written statement that the property in suit is
covered under the Act of 13 of 1972 and
the property in suit is very old. The rear
portion of the house is made in 1973. The
defendant tenant has also relied on the
citation in Ram Swaroop Rai Vs. Smt.
Leelawati, 1980 ARC 466 in which it is
held that the municipal records appearing
on the completion of construction alone is a
criteria in order to prove the assessment as
contained in explanation to Section 2(2) of
the Act of 13 of 1972 and the trial court
had decreed the suit without examining the
first assessment in accordance with Section
2(2) of the Act.

19. According to this Court when it
has been established from the documentary
evidence that the map was sanctioned on
19.04.1984 then certainly the house could
not be constructed before the said date. As
per the relevant proviso enumerated in
Section 2 where construction of a building
is completed on or after April 26, 1985 then
the reference in this section to the period of
10 years shall be deemed to be a reference
to a period of 40 years from the date on
which its construction is completed. The
option was also open to the tenant to file a
copy of assessment if so available to
establish that the house in suit was
completed prior to the cut date April 26,
150 INDIAN LAW REPORTS ALLAHABAD SERIES
1985. In this respect explanation-1 is also
relevant which has been perused by this
Court. Section 2 of the Act reads as under:-

"2. Exemptions from Operation
of Act.- (1) Nothing in this Act shall apply
to-

(a) any building belonging to or
vested in the Government of India or the
Government of any State or any local
authority ; or

(b) any tenancy created by grant
from
the
State
Government
or
the
Government of India in respect of a
building taken on lease or requisi-tioned by
such Government ;, or

(c) any building used or intended
to be used as a factory within the meaning
of the Factories Act, 1948 ; or

(d) any building used or intended
to be used for any other industrial purpose
(that is to say, for the purpose of
manufacture, preservation or processing of
any goods) or as a cinema or theatre,
where the plant and apparatus installed for
such purpose in the building is leased out
along with the building :

Provided that nothing in this
clause shall apply in relation to any shop
or other building, situated within the
precincts of the cinema or theatre, the
tenancy in respect of which has been
created separately from the tenancy in
respect of the cinema or theatre ; or

(e) any building used or intended
to be used as a place of public
entertainment or amusement (including any
sports stadium, but not including a cinema
or theatre) , or any building appurtenant
thereto ; or

(f) any building built and held by
a University or any other statutory
corporation or' by a society registered
under the Societies Registration Act, 1860,
or by a co-operative society, company or
firm, and intended solely for its own
occupation or for the occupation of any of
its officers or servants, whether on rent or
free of rent, or as a guest house, by
whatever name called, for the occupation
of persons having dealing with it in the
ordinary course of business.

(2) Except as provided in subsection (2) of section 24 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.

Explanation- For the purposes of
this sub-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 or
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
construction in respect of different parts of
a building which are either designed as
separate units or are occupied separately
by the 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
4 All. Dev Raj Vs. Smt. Rukmani Devi
151
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 said addition.

(3) The State Government, if it is
satisfied that it is necessary or expedient so
to do in the interest of genera public, may
by notification in the Gazette, exempt from
all or any of the provisions of this Act any
building which is owned by an educational
or charitable institution and the whole of
the income derived from which is utilised
for the purposes of that institution, and may
in the like manner cancel or amend such
notification."

20. On the basis of aforesaid
discussion this Court is in conformity with
the findings recorded by the trial court that
the house in suit is not governed by UP Act
No.13 of 1972.

21. Point No.2--The plaintiff landlord has proved this fact that she had
provided dasti summon to the defendant on
06.01.1997 and when he did not receive it,
the same was pasted at the house of the
defendant. It is noteworthy that a suit i.e.
Original Suit No.371 of 1996 was filed by
the defendant tenant against the land-lord
in which the land-lord had filed affidavit
and also copy of the notice dated
06.01.1997. The trial court found that from
the perusal of the aforesaid papers it has
again been established that the notice was
properly served to the defendant. This
Court is also in conformity with the finding
recorded by the lower court contrary to
these facts no any adverse fact could be
established by the defendant tenant.

22. Point No.3--According to plaintiff
land-lord the monthly rent of house is
Rs.1,000/- per month but denying it, the
defendant tenant has said that the monthly
rent of the house in suit was only Rs.500/-
per month. In this respect both parties had
filed affidavit and from the side of the
plaintiff
an
independent
witness,
Ghanshyam has tried to prove the fact that
even in his presence Rs.1,000/- monthly
rent was fixed but evidence thereon has not
been accepted by the trial court. The trial
court
considered
the
accommodation
provided to the tenant that it was only one
room, store, bathroom and latrine without
kitchen. The trial court has also based its
finding stating that in this regard no
documentary evidence could be produced
by the plaintiff. When there was dispute
regarding rate of rent then it was also the
duty of the plaintiff land-lord to get the rate
of rent from administration and after filing
the same the plaintiff land-lord could argue
that in the area where the house in suit
exists is not so as said by the defendant and
for such accommodation the rate of rent is
not less than Rs.1,000/-. It is known to all
that the Government has fixed the market
value of the properties and also rate of rent
of the urban areas, therefore, the rate of
rent fixed by the Government was very
much available in Collectorate which could
be obtained by the plaintiff land-lord to
prove the averments of the plaint. Thus, it
is found that there is omission on the part
of the plaintiff land-lord, therefore, a
presumption arises against the plaintiff that
if any public document is already available
and the same has not been filed by the
concerned party it would be presumed that
it is against the party who had not filed it.

23. Section 114(g) of the Indian
Evidence Act reads as under:-

"114
Court
may
presume
existence of certain fact.--The Court may
presume the existence of any fact which it
thinks likely to have happened, regard
152 INDIAN LAW REPORTS ALLAHABAD SERIES
being had to the common course of natural
events, human conduct and public and
private business, in their relation to the
facts of the particular case. Illustrations
The Court may presume--

x x x x x

(g) That evidence which could be
and is not produced would, if produced, be
unfavourable to the person who withholds
it."

24. Thus on the basis of the aforesaid
discussion this Court also comes to the
conclusion that a monthly rent of the house
in suit was Rs.500/- and not Rs.1,000/- per
month as alleged by the plaintiff land-lord

25. Point No.4--It is said by the
defendant that he had provided Rs.20,000/- to
the plaintiff land-lord for construction of
kitchen with condition that this amount
would be adjusted in the rent. This point has
also been decided against the tenant. In this
respect there is only oral evidence of
defendant DW-1 and Urmila, DW-2. Urmila
is maid servant of the defendant, therefore, it
appears that being maid servant of the
defendant she is deposing in his favour. The
trial court has noted the fact that if actually
Rs.20,000/- were provided to the plaintiff,
why date of payment was not mentioned in
the written statement. This aspect has also
been considered by the trial court that if such
amount would have been given to the
plaintiff, certainly any receipt or document
would have been reduced in writing.

26.

Considering
the
aforesaid
circumstances and evidence the trial court
concluded that a prudent person cannot
believe the evidence of the defendant and
his maid servant in this regard.

27. According to the trial court it was
a concocted story. Hence, this point has
been decided against the tenant. According
to this Court if Rs.20,000/- would have
been provided certainly it would have been
provided either in bank account or at least
by affixing revenue stamp. If it was given
to the plaintiff land-lord it would have been
withdrawn from the bank. In this regard
document regarding withdrawal of the
money from the bank would have been
produced. If such money was already with
tenant in cash, he has to explain as to how
such amount was available with him.

28. On the basis of aforesaid
discussion this Court is of the view that the
finding recorded regarding non-payment of
Rs.20,000/- to the plaintiff land-lord by the
tenant has been correctly decided by the
trial court.

29. Point No.5--This issue is as to
whether the defendant has not paid the rent
since May, 1996. The trial court has rightly
concluded that the burden of proving the
payment of rent is on the tenant. He has to
prove that he has made the payment of rent.
The trial court noticed that in this regard
defendant tenant has not produced any
receipt while according to the plaintiff
land-lord the defendant has not paid the
rent since May 15, 1996. The trial court
found that the fact of non-payment of rent
since May 15, 1996 has been sufficiently
proved by the plaintiff by adducing her
evidence and evidence of PW-2. It is a
matter of surprise that plaintiff is neither
taking
any
receipt
regarding
giving
Rs.20,000/- for the construction of kitchen
to the plaintiff and also not taking receipt
of rent from the plaintiff land-lord.

30. In this regard no sufficient and
cogent evidence has been produced by the
defendant tenant that he was paying the
rent and he has paid the rent before any
4 All. Ajay Kumar Vs. State of U.P.
153
person. It cannot be assumed that a maid
servant who occasionally comes to the
defendant's rented house for an hour for
washing, cleaning and dusting before
whom the rent would have been provided
continuously by the tenant. Hence, the
finding recorded in this regard by the trial
court is also affirmed by this Court.

31. In the last the trial court
concluded that the property in suit is not
covered by the provisions of UP Act No.13
of 1972. The tenant defendant could not
prove payment of rent. By the notice under
Section 106 of Transfer of Property Act the
tenancy was rightly terminated by the
plaintiff. The defendant tenant could not
prove the payment and was found to be a
defaulter. Hence, the petition was allowed
and an order of eviction was passed but it
has been concluded that since the plaintiff
could not succeed in proving that the rate
of rent is Rs.1,000/- hence it was directed
that since May 15, 1996 till the date of
eviction the plaintiff land-lord would be
entitled to receive the amount of rent and
for damages at the rate of Rs.500/- per
month.

32. If the plaintiff land-lord was
aggrieved
by
the
finding
regarding
determination of rent to be only Rs.500/-
per month instead of Rs.1,000/- per month,
the plaintiff land-lord had option to file a
cross
revision.
Hence,
it
would
be
concluded that she has accepted the finding
given by the trial court regarding rate of
rent. Therefore, this Court cannot and
should not enter into the question regarding
rate of rent any more.

33. So far as the finding regarding rest
points for determination are concerned, this
Court is in conformity with the finding
given by the trial court as a whole. The
revisionist could not establish any error,
mistake regarding facts or applicability of
law applied by the trial court. Thus, on the
basis of the aforesaid discussion, this Court
is of the opinion that the trial court's
judgment is liable to be affirmed. The
revision preferred by the defendant tenant
has no merit and is liable to be dismissed
with costs.

ORDER

34. The revision is dismissed with
costs.

35. Let the lower court record be sent
back to the District Judge, Bareilly with a
copy of this judgment.

36. The respondent land-lord is
entitled to execute the judgment and decree
of the lower court and this Court as well.
----------
(2023) 4 ILRA 153
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 07.04.2023

BEFORE

THE HON'BLE MRS. RENU AGARWAL, J.

Criminal Revision No. 145 of 2008

Ajay Kumar ...Revisionist
Versus
State of U.P. ...Opposite Party

Counsel for the Revisionist:
Virendra Singh, Ashwani Kumar Srivastava,
Sharad Kumar Vaish

Counsel for the Opposite Party:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 313, 360, 361, 397 & 401
- Indian Penal Code.1860 - Sections 457,