# Hafeez & Ors v. Digvijay Singh & Ors

- **Citation:** (2021) 3 ILRA 489
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-19
- **Case number:** Matter Under Article 227 No. 1646 of 2020
- **Bench:** Vivek Kumar Birla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hafeez-ors-v-digvijay-singh-ors-46905
- **Pages:** 7

## Headnote

A. Constitution of India,1950,-Article 227
& Provincial Small Cause Court Act, 1887Section 15(1) -maintainability of suit-suit
was contested by the tenant mainly on the
ground that the house was very old and in
the last rains substantial part of the house
had fallen down and was not left in
liveable
condition-therefore,
tenant
sought permission from the landlord to
raise construction-such permission could
not be proved by the tenant-no notice was
given to the landlord u/s 29(2) of the Act
13
of
1972-perusal
of
definition
of
building given in Section 3(i) of the Act
and Article 4 of 2nd Schedule of Section 15
of the PSCC Act 1887 (UP Amendment)
clearly shows that the building means
roofed
structure
and
includes
land
including any garden, garage, outhouse
and land appurtenant to such building-In
the present case, building includes fo land
beneath i.e. over which the construction/
structure was existing was under tenancyIt is not even the case of petitioner that
the plaintiff is not the owner of the land
and the building existing thereon of which
he was the tenant-the suit is maintainable
and
court
below
committed
no
jurisdictional
error-the
tenant
shall
handover the peaceful possession of the
premises in question to the landlord and
shall pay entire decretal amount within a
period of two months.(Para 1 to 19)

The Petition is dismissed. (E-5)

List of Cases cited: -

## Text

3 All. Hafeez & Ors. Vs. Digvijay Singh & Ors.
489

14. In this view of the matter, I am of
the opinion that the order passed by this
Election Tribunal dated 02.02.2020 is
absolutely perfect and does not call for any
interference by this Court.

15. The petition has no merit and
liable to be dismissed and the same is
hereby dismissed. No order as to costs.
----------
(2021)03ILR A489
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.02.2021

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.

Matter Under Article 227 No. 1646 of 2020

Hafeez & Ors. ...Petitioners
Versus
Digvijay Singh & Ors. ...Respondents

Counsel for the Petitioners:
Smt. Rama Goel Bansal

Counsel for the Respondents:
Sri Rishikesh Tripathi

A. Constitution of India,1950,-Article 227
& Provincial Small Cause Court Act, 1887Section 15(1) -maintainability of suit-suit
was contested by the tenant mainly on the
ground that the house was very old and in
the last rains substantial part of the house
had fallen down and was not left in
liveable
condition-therefore,
tenant
sought permission from the landlord to
raise construction-such permission could
not be proved by the tenant-no notice was
given to the landlord u/s 29(2) of the Act
13
of
1972-perusal
of
definition
of
building given in Section 3(i) of the Act
and Article 4 of 2nd Schedule of Section 15
of the PSCC Act 1887 (UP Amendment)
clearly shows that the building means
roofed
structure
and
includes
land
including any garden, garage, outhouse
and land appurtenant to such building-In
the present case, building includes fo land
beneath i.e. over which the construction/
structure was existing was under tenancyIt is not even the case of petitioner that
the plaintiff is not the owner of the land
and the building existing thereon of which
he was the tenant-the suit is maintainable
and
court
below
committed
no
jurisdictional
error-the
tenant
shall
handover the peaceful possession of the
premises in question to the landlord and
shall pay entire decretal amount within a
period of two months.(Para 1 to 19)

The Petition is dismissed. (E-5)

List of Cases cited: -

1. Munnu Yadav Vs Ram Kumar Yadav &
anr.,(2020) 1 ALJ 316

2. Hindustan Petroleum Corp. Ltd. Vs Dilbahar
Singh (2014) 9 SCC 78

(Delivered by Hon'ble Vivek Kumar Birla, J.)

1. Heard learned counsel for the
petitioners and learned counsel appearing
for the respondents.

2. Present petition has been filed for
setting aside the judgment and decree dated
22.1.2020 passed by the Additional District
Judge, Court No. 3, Jhansi in SCC Revision
No. 17 of 2019 as well as judgment and
decree dated 8.4.2019 passed by the Judge
Small Causes Court, Jhansi in SCC Suit
No. 10 of 2009.

3. Shorn of details, the facts of the
case in brief are that the suit was filed by
the plaintiff on the ground that they are the
owner of House No. 646, Mohalla
Thakuryana,
Puliya
No.
9,
Jhansi.
Reference was made to earlier litigation in
regard to the same property. It is alleged
that the house was very old, which
490 INDIAN LAW REPORTS ALLAHABAD SERIES
consisted four rooms, one kitchen, latrine
and courtyard. The default in making
payment of rent was also claimed. It was
alleged that the house was demolished by
the tenant on 20.11.2008 and when the
defendants tried to raise constructions,
injunction suit was filed by the plaintiff,
wherein interim order was granted in
favour of the plaintiff. A notice was issued
to the tenant, which was replied by the
tenant. Thereafter, when the rent was not
paid and the property was not vacated the
suit was filed. The suit was contested by
the tenant mainly on the ground that the
house was very old and in the last rains
substantial part of the house had fallen
down and was not left in liveable condition.
Therefore, he obtained oral permission
from the plaintiffs and Mahendra Singh,
who permitted tenants to raise construction
and with this permission two khaprail
roofed rooms were made at the same place
and no demolition or material alteration
was done by the tenant and that no rent is
due.

4. The trial court framed five issues.
(1) whether the notices given to the
defendant is valid; (2) whether the
defendant has raised constructions and has
materially altered the premises in question
without permission of the landlord; (3)
whether any default in payment of rent was
committed; (4) whether the defendants are
entitled for benefit of Section 20(4) of the
UP Act 13 of 1972 (hereinafter referred to
as the Act) and; (5) relief, if any.

5. On the issue of notice it was found
that the notice was duly received by the
tenant and was also replied; on the issue of
material alteration it was found that the
case of the defendant himself is that the
house had fallen down due to excessive
rains and was not in liveable condition and
therefore, oral permission was sought from
the plaintiffs and Mahendra Singh s/o
Dwarika Prasad, which was granted by
them and thereafter two khaprail rooms
were constructed. In view of this it was
found that the defendant has raised
construction without written permission of
the plaintiff and has materially changed the
tenanted accommodation; on the issue
regarding default in payment of rent and
extension of benefit of Section 20(4) of the
Act it was found that the tenant failed to
prove that he had paid the rent and
therefore, the benefit of Section 20(4) of
the Act was refused and accordingly, the
relief was granted in favour of the plaintiff
by directing the eviction, payment of
arrears of rent, payment of damages @ Rs.
100/- per day. The revision filed by the
tenant was also dismissed by the court
below by recording finding that there is no
error in the judgment of trial court,
therefore, no interference is warranted.

6. Challenging the impugned orders
submission of learned counsel for the
petitioners is that it was alleged that the
building was demolished by the tenantpetitioner herein whereas notice was given
to vacate the building, therefore, the Act
would not apply and notice is not valid.
Attention was drawn to the plaint allegation
that building has been demolished and now
exist a plot, therefore, the suit itself before
Judge, Small Causes Court was not
maintainable. It is further asserted that
since a declaration was sought that the
plaintiff be declared as a tres-passer the suit
itself before the Judge, Small Causes Court
was not maintainable as the civil court
alone would have the jurisdiction to make
such declaration. It was further submitted
that now the property is in the shape of
plot, therefore, material alteration also
could not be seen. It is further submitted
3 All. Hafeez & Ors. Vs. Digvijay Singh & Ors.
491
that concurrent findings by both the courts
below are perverse and suffers from
material
irregularities
and
illegalities.
Attention was drawn to Article 4 of 2nd
Schedule of Section 15(1) of the Provincial
Small Causes Court Act, 1887.

7. Per contra, learned counsel
appearing
for
the
landlord-respondent
submits
that
the
suit was
perfectly
maintainable. He submits that it is an
admitted fact that constructions were raised
by the tenant-petitioner without taking
written permission of the landlord and that
even if the building has fallen down due to
excessive rainfall, no notice was given to
the landlord as required under Section 29
(2) of the Act 13 of 1972. He further
submits that the record clearly reflects that
the fact that the accommodation was a
building, which was demolished by the
tenant, is admitted to the tenant-petitioner
and the only case put forward by the
tenant-petitioner in the written statement is
that the construction was raised with the
oral permission of the landlord. He submits
that such oral permission will not help the
tenant-petitioner,
moreso,
it
was
specifically stated that no such oral
permission was granted.

8. I have considered the submissions
and have perused the record.

9. Before proceeding further it would
be relevant to take note of relevant
provisions of Sections 3(i) and 29 of the
UP
Urban
Buildings
(Regulation
of
Letting, Rent and Eviction) Act, 1972 and
Section 15 of the U.P. Provincial Small
Causes Court Act, 1887 and Article 4 of
2nd Schedule of Section 15 of Provincial
Small Causes Court Act, 1887 (UP
Amendment by Act No. 37 of 1972) (w.e.f.
20.9.1972), which are quoted as under:-

"Sections 3 (i) and 29 of the Act of
1972

3. (i) "building", means a residential or
non-residential
roofed
structure
and
includes-

(i) any land (including any garden),
garages and out-houses, appurtenant to
such building;

(ii) and furniture supplied by the
landlord for use in such building;

(iii) any fittings and fixtures affixed to
such building for the more beneficial
enjoyment thereof;

29. Special Protection to tenants of
buildings
destroyed
by
collective
disturbances
etc.
-
(1)
Where
in
consequence of the commission of mischief
or any other offence in the course of
collective disturbances, any building under
tenancy is wholly or partly destroyed, the
tenant shall have the right to re-erect it
wholly or partly, as the case may be, at his
own expenses within a period of six months
from such injury :

Provided that if such injury was
occasioned by the wrongful act or default
of the tenant he shall not be entitled to avail
himself of the benefit of this provision.

(2) Where in consequence of fire,
tempest, flood or excessive rainfall, any
building under tenancy is wholly or partly
destroyed the tenant shall have the right to
re-erect or repair it wholly or partly, as the
case may be, at his own expense after
giving a notice in writing to the landlord
within a period of one month from such
injury :

Provided that the tenant shall not be
entitled to avail himself of the benefit of
this provision-

(a) if such injury was occasioned by
his own wrongful act or default ; or

(b) in respect of any re-erection of
repair made before he has given a notice as
aforesaid to the landlord or before the
492 INDIAN LAW REPORTS ALLAHABAD SERIES
expiration of a period of fifteen days after
such notice, or if the landlord in the
meantime makes an application under
section 21, before the disposal of such
application ; or

(c) in respect of any re-erection or
repair made after the expiration of a period
of six months from such injury or, if the
landlord has made any application as
aforesaid, from the disposal thereof.

(3) Where the tenant, before the
commencement of this Act, has made any
re-erection or repair in exercise of his rights
under section 19 of the old Act, or after the
commencement of this Act makes any reerection in the exercise of his right under
sub-section (1) or sub-section (2) ,-

(a) the property so re-erected or
repaired shall be comprised in the tenancy ;

(b) the tenant shall not be entitled,
whether during the tenancy or after its
determination, to demolish the property or
parts so erected or repaired or to remove
any material used therein other than any
fixtures of a movable nature ;

(c)
Notwithstanding,
anything
contained in sub-section (2) of section 2,
the provisions of this Act shall apply to the
building so re-erected :

Provided that no application shall be
maintainable under section 21 in respect of
any such building on the ground mentioned
in clause (b) of sub-section (1) thereof
within a period of three years from the
completion of such re-erection."

Section 15 of PSCC Act, 1887 (UP
Amendment)

15. Cognizance of suits by Courts of
Small Causes.--(1) A Court of Small
Causes shall not take cognizance of the
suits specified in the second schedule as
suits excepted from the cognizance of a
Court of Small Causes.

(2) .....

(3) .....

Second Schedule (Section 15) (UP
Amendment)

Article 4. a suit for the possession of
immovable property or for the recovery of
an interest in such property, but not
including a suit by a lessor for the eviction
of a lessee from a building after the
determination of his lease and for the
recovery from him of compensation for the
use and occupation of that building after
such determination of lease.

Explanation.- For the purposes of this
Article, the expression "building" means a
residential
or
non-residential
roofed
structure, and include any land (including
any
garden),
garages,
out-houses,
appurtenant to such building, and also
includes any fittings and fixtures affixed to
the building for the more beneficial
enjoyment thereof."

10. On perusal of record I find that
paragraph nos. 1, 2 and 3 of the plaint have
been admitted in the written statement by
the tenant. Insofar as existence of building
is concerned, it has been categorically
admitted in written statement that there had
been some litigation earlier also and in
paragraph nos. 23 to 25 of the written
statement it was asserted that the house was
very old and roof was made of khaprail and
ballis were used and that a considerable
portion of the accommodation had fallen
down due to rain and the house was beyond
repair and could not have been brought in
liveable condition even after repairs,
therefore, permission was sought from the
landlord, which was granted orally and it is
only thereafter room were constructed on
the
same
place
where
the
earlier
accommodation was existing. It is further
asserted in the written statement that the
house was more than 100 years old and the
defendant has not demolished any part
deliberately. Thus, in the written statement
3 All. Hafeez & Ors. Vs. Digvijay Singh & Ors.
493
it has been admitted that the tenancy was of
an accommodation, which was demolished
or as alleged fallen down in the rains,
however, as per the assertions made in the
plaint, at the time of filing of the suit the
same was in the shape of a plot and
therefore, since status of the petitioner was
that of a tenant when the suit was filed
before the Court of Judge Small Causes.

11. It is settled law that the land is
included as a part of tenancy. Although it is
alleged that the accommodation was not
demolished but had fallen down but even if
the accommodation had fallen down,
admittedly, no notice under Section 29 (2)
of the Act was given. Admitted case of the
petitioner was that the house got damaged
due to rains and was beyond repairs and
was constructed with the oral permission of
the
landlord,
however,
even
such
permission could not be proved by the
tenant.

12. Perusal of definition of building
given in Section 3(i) of the Act and Article 4
of 2nd Schedule of Section 15 of the PSCC
Act (UP Amendment) clearly shows that the
building means roofed structure and includes
land including any garden, garage, outhouse
and land appurtenant to such building. In the
present case, building includes of land
beneath i.e. over which the construction /
structure / building was existing was under
tenancy. It is not even the case of the
petitioner that the plaintiff is not the owner of
the land and the building existing thereon of
which he was the tenant. Even from this point
of view the suit in the circumstances as stated
in the plaint and as admitted in the written
statement was clearly maintainable and there
had been no jurisdictional error on the part of
the courts below to entertain and decide the
same, moreso, no such objection was taken
before the courts below.

13. A reference may also be made to
judgment of this Court in the case of Munnu
Yadav vs. Ram Kumar Yadav and
another 2020 (1) ALJ 316. Paragraphs 14 to
18 whereof are quoted as under:-

"14. The word "means" and "includes"
used in Section 3(i) of the Act implies that the
definition is exhaustive with respect to
"residential
or
non
residential
roofed
structure" unless the context otherwise
requires but it is illustrative with respect to
the inclusion part given in sub clauses i, ii
and iii. The phrase "unless the context
otherwise requires" indicates that while
construing, interpreting and applying the
definition clause, the Court has to keep in
view the legislative mandate and intent and to
consider
whether
the
context
requires
otherwise. Where the definition is preceded
with the phrase "unless the context otherwise
requires" the connotation is that normally the
definition as given in Section should be
applied and given effect to but it may be
departed from if the context otherwise
requires.

15. From bare perusal of the definition
of "building" in Section 3(i) of the U.P. Act
13 of 1972, it is clear that unless the
context
otherwise
requires,
"building"
means a residential or non residential
roofed structure and includes any land
(including any garden), garages and outhouses, appurtenant to such building; any
furniture supplied by the landlord for use in
such building and any fittings and fixtures
affixed to such building for the more
beneficial enjoyment thereof. As held by
Hon'ble Supreme Court in Ashok Kapil
(supra) a structure or edifice enclosing a
space within its walls, and usually, but not
necessarily, covered with a roof is a
building. Roof is not necessary and
indispensable
adjunct
for
a
building
because there can be roofless buildings.
494 INDIAN LAW REPORTS ALLAHABAD SERIES
The "Building" as defined in Section 3 (i) is
a residential or non-residential roofed
structure and includes any land (including
any garden), garages and out-houses,
appurtenant to such building. Therefore, an
open land including any garden, garages
and out-houses, appurtenant to a roofed
structure for its beneficial engagement shall
be a building within the meaning of Section
3(i) of U.P. Act 13 of 1972.

16. In the present set of facts the small
accommodation let out by the landlordrespondent to the defendant-revisionist is
an integral part of the building bearing
municipal No.76/184, Sabji Mandi, Kanpur
Nagar.
Therefore,
the
disputed
accommodation, even though is roofless; is
part
of
the
house
in
question.
Consequently, the disputed accommodation
let out by landlord-respondent to the
tenant-revisionist is "building" as defined
under Section 3(i) of the U.P. Act 13 of
1972. Question no. (a) is answered
accordingly.

17. In view of my answer to the
question (a) there is no need to decide
question (b) yet it would be suffice to
observe that admittedly the competence of
the court below to decide the SCC Suit in
question was not raised by the tenantrevisionist
before
the
court
below.
Therefore, in view of the provisions of
Section 21 of the Civil Procedure Code and
the law settled by Hon'ble Supreme Court
in the case of Om Prakash Agarawal
(supra), such an objection can not be raised
at this stage in Revision under Section 25
of the Act, 1887, inasmuch as such an
objection could have been taken by the
tenant-revisionist in the Court of first
instance at the earliest possible opportunity.

18. For all the reasons aforestated, it is
held that the disputed accommodation is a
building within the meaning of Section 3(i)
of the U.P. Act 13 of 1972 which was let
out by the landlord-respondent to the
tenant-revisionist and the tenant-revisionist
defaulted in payment of rent resulting in
determination of tenancy. Therefore, the
SCC Suit for eviction has been lawfully
decreed by the impugned judgment. The
findings recorded by the court below on the
issues before it are the findings of fact
which do not suffer from any perversity.
Therefore, these findings of fact can not be
interfered with."

14. Insofar as jurisdictional error or
the defect in the notice is concerned,
suffice to note that no such ground was
taken before the trial court or even before
the revisional court as it is reflected from
perusal of the memo of revision annexed
with the paper book. Therefore, the
argument of learned counsel for the tenantpetitioner raised before this Court for the
first time that the suit itself was not
maintainable and the judgments suffers
from jurisdictional error has no substance
and is liable to be rejected.

15. Therefore, I do not find any good
ground to entertain such objection taken for
the first time before this Court filed under
Article 227 of the Constitution of India.

16. In any view of the matter, I do not
find
any
jurisdictional
error
in
the
judgments of the courts below so as to
interfere
in
the
concurrent
findings
recorded by the courts below in exercising
powers
under
Article
227
of
the
Constitution of India.

17. Insofar as findings of facts are
concerned, a reference may also be made in
this regard to the Constitutional Bench
judgment of the Hon'ble Apex Court in the
case
of
Hindustan
Petroleum
Corporation Ltd. Vs. Dilbahar Singh
3 All. Sanjay Sharma & Ors. Vs. State of U.P. & Ors.
495
(2014) 9 SCC 78 according to which no
interference is warranted in such findings
of fact. It is also settled law that jurisdiction
under Article 227 of the Constitution of
India is akin to revisional jurisdiction and
the scope of interference in the findings of
fact is also very limited.

18. In such view of the matter, I do
not
find
any
jurisdictional
error
or
perversity in the findings recorded and the
conclusion drawn by the courts below.
Present petition is devoid of merits and is
accordingly dismissed.

19. Having considered the facts and
circumstances of the case, subject to filing
of an undertaking by the petitioner-tenant
before the Court below, it is provided that:

(1)
The
tenant-petitioner
shall
handover the peaceful possession of the
premises in question to the landlordopposite party on or before 31.8.2021;

(2) The tenant-petitioner shall file the
undertaking before the Court below to the
said effect within one month from today;

(3) The tenant-petitioner shall pay
entire decretal amount within a period of
two months from the date of receipt of
copy of this order.

(4) The tenant-petitioner shall pay
damages as held by the court below per
month by 07th day of every succeeding
month and continue to deposit the same in
the Court below till 31.8.2021 or till the
date he vacates the premises, whichever is
earlier and the landlord is at liberty to
withdraw the said amount;

(5) In the undertaking the tenantpetitioner shall also state that he will not
create any interest in favour of the third
party in the premises in dispute;

(6) Subject to filing of the said
undertaking, the tenant-petitioner shall not
be evicted from the premises in question till
the aforesaid period;

(7) It is made clear that in case of
default of any of the conditions mentioned
herein-above, the protection granted by this
Court shall stand vacated automatically.

(8) In case the premises is not vacated
as per the undertaking given by the
petitioner, he shall also be liable for
contempt.

20. There shall be no order as to costs.
----------
(2021)03ILR A495
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.01.2021

BEFORE

THE HON'BLE RAVI NATH TILHARI, J.

Matter Under Article 227 No. 3175 of 2020(Crl.)

Sanjay Sharma & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Mohd. Kalim, Sri Abrar Ahmad Siddiqui, Sri
Narendra Kumar Pandey

Counsel for the Respondents:
G.A., Sri Prashant Sharma

A. Constitution of India, 1950-Article 227
&
Indian
Penal
Code,1860-Sections
376,120-B, 354,323,504,506-quashing of
summoning order and revisional orderaccused committed rape-also she was
harassed for dowry by other accusedstatement of Doctor and statement of PW1 and PW-2 supported the averments of
the complaint of commission of rapepetitioners contended their dispute as
family dispute/civil dispute-at the stage of
summoning it cannot be adjudicated nor it
cannot be determined in the exercise of
jurisdiction under Article 227-it is well
settled law that while exercising inherent