# Radha Krishna Ji Esthapit Mandir v. Ganesh Prasad Mishra & Anr

- **Citation:** (2019) 3 ILRA 707
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-18
- **Case number:** Second Appeal No. 256 of 2001
- **Bench:** Virendra Kumar-Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radha-krishna-ji-esthapit-mandir-v-ganesh-prasad-mishra-anr-44942
- **Pages:** 24

## Headnote

Law-U.P.
Urban
Buildings
(Regulation of Letting Rent and Eviction)
Act, 1972 - Section 1- Applicability - Not
applicable if disputed shop/property is
situated in village.

Held: - Disputed shop is situated in Village
Kamlapur, and it does not fall within urban
limits of city Sitapur or other municipalities or
area specifically notified - Kamlapur, Maholi
and Peer Nagar all are villages and part of
Gram Panchayat. Therefore, the U.P. Urban
Buildings (Regulation of Letting Rent and
Eviction) Act 1972 is not applicable to the
disputed
property/shop.
Since
disputed
shop/property is not situated in urban area of
the city Sitapur or any municipality or notified
area, the Act No. 13 of 1972 is not applicable
to the disputed property of this Suit No. 17 of

## Text

_Characters 0–39,717 of 78,387. This is a partial read: ask again with offset=39717 for what follows._

3 All. Radha Krishna Ji Esthapit Mandir Vs. Ganesh Prasad Mishra & Anr.
707
fiduciary relationship between himself
and the defendants before the onus of
establishing that such undue influence
had not been exercised. The Courts below
have recorded a concurrent finding of
facts that such a relationship did not exist
between the parties, and the same cannot
be interfered with by this Court as such
findings cannot be said to be either
perverse or based upon no evidence. In
this light, the appellant's contention that
the defendants were required to prove that
the plaintiff executed the sale deed with a
free will is liable to be rejected.

14. The Appellate Court has also
discussed the case law cited by the appellant
and has discussed the evidence led by the
plaintiff and the defendant's. Both the Courts
below have after due consideration found
that the plaintiff has failed to prove his case.
The plaintiff could not prove fraud, undue
influence or even fiduciary relationship. In
the absence of these factors the validity of a
registered document cannot be challenged.
Since the document has been upheld by the
Courts below, obviously there is no need to
examine other questions like possession etc.
It is relevant to state that while one plot has
been sold in its entirety, the other plot has
been sold to the extent of its half share. In the
circumstances, there is absolutely no clouds
of suspicion surrounding the transaction and
as such this Court does not find any reason to
disagree with the conclusions drawn by the
Courts below.

15. The second appeal is concluded
by findings of fact which are concurrent.
No substantial question of law is born out
from
the
judgments
calling
for
interference under section 100 CPC.

16. The second appeal is dismissed.
----------
(2019)11ILR A707

APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.11.2019

BEFORE
THE HON'BLE VIRENDRA KUMAR-II, J.

Second Appeal No. 256 of 2001

Radha Krishna Ji Esthapit Mandir
 ...Appellant
Versus
Ganesh Prasad Mishra & Anr.
 ...Respondents

Counsel for the Appellant:
Sri S.K. Tiwari, Sri Aakash Prasad, Sri
Amitav Singh, Sri Arun Saxena, Sri S.P.
Shukla

Counsel for the Respondents:
--------------------

A.
Civil
Law-U.P.
Urban
Buildings
(Regulation of Letting Rent and Eviction)
Act, 1972 - Section 1- Applicability - Not
applicable if disputed shop/property is
situated in village.

Held: - Disputed shop is situated in Village
Kamlapur, and it does not fall within urban
limits of city Sitapur or other municipalities or
area specifically notified - Kamlapur, Maholi
and Peer Nagar all are villages and part of
Gram Panchayat. Therefore, the U.P. Urban
Buildings (Regulation of Letting Rent and
Eviction) Act 1972 is not applicable to the
disputed
property/shop.
Since
disputed
shop/property is not situated in urban area of
the city Sitapur or any municipality or notified
area, the Act No. 13 of 1972 is not applicable
to the disputed property of this Suit No. 17 of
1994. (Para 40)

B. Civil Law-Transfer of Property Act,
1882 - Section 106(3) - Notice falling
short of period specified in section
106(1) - Not Invalid - where a suit or
708 INDIAN LAW REPORTS ALLAHABAD SERIES
proceeding is filed after the expiry of the
period mentioned in section 106(1).

Held:- For the sake of argument even if it is
considered that three days were short of the
clear 30 days for vacating the disputed shop
by the respondents, would not make notice
dated 03.08.1993 terminating tenancy of
respondents on 31.08.1993, defective or
invalid, because suit was instituted by the
appellant/plaintiff on 12.01.1994 much after
period of 30 days. The notice was issued on
03.08.1993,
which
was
served
on
the
respondent on 10.08.1993 by refusal as
reported by Postman. (Para 22)

C. Transfer of Property Act, 1882 -
Section 106 - Objection to the invalidity
or insufficiency of notice under Section
106 of the TP Act should be specifically
raised in the written statement, failing
which it will be deemed to have been
waived.

Held:- Since the respondents/defendants did
not take a plea, in their written statement,
that the notice- 9 Ga/ 8 Ga was defective as
the period specified in the notice to vacate the
suit property fell short by period of 03 days, it
shall be deemed that they have waived plea in
this regard - First Appellate Court has relied
upon defect of short period mentioned in
notice under Section 106 Transfer of Property
Act and that complete/clear 30 days were not
given to respondents to vacate the disputed
shop is also not well founded, because defect
of Notice- 9Ga was not pleaded by the
respondents
in
their
written
statement.
Appellate court has not considered that no
plea of defective or invalid notice was taken at
the earlier stage by the respondents before
trial Court and no issue was framed in this
regard that notice under Section 106 Transfer
of Property Act was defective or invalid. (Para
25, 31, 33)

Second Appeal allowed (E-5)
List of cases cited: -

1. Sudhir G. Angur Vs M. Sanjeev (2006) 1
SCC 141.
2. Hardoi Zila Sahkari Bank Ltd, Hardoi Vs
Smt. Sarla Gupta & anr. 2010 SCC Online All
741.

3. Reddy Ramamurthy (died) by LRS. Vs Goli
Bhaskara Rao 2006 SCC Online AP 629.
4. Amina Khatoon & ors. Vs Smt. Johra Bibi &
ors. AIR 1971 All 372.
5.Ganga Ram Vs Smt. Phulwati 1970 ALJ 336.
6. Dharam Pal Vs Harbans Singh (2006) 9 SCC
216.

7. Bhagabandas Agarwalla Vs Bhagwandas
Kanu (1977) 2 SCC 646.

8. Balbir Singh Vs Kalawati AIR 1976 All 434.

9. Battoo Mal Vs Rameshwar Nath & anr. AIR
1971 Del 98.

10. Ambalal Sarabhai Enterprises Ltd. Vs Amrit
Lal & Co. & anr. 2001 (8) SCC 397.

11. Smt. Champa Devi & anr. Vs Rent Control
& Eviction Officer (1st) Alld. & anr. 2002 (1)
AWC 673.

12. Thakur Rang ji Maharaj & anr. Vs Om
Prakash Agarwal & anr. 2012 SCC OnLine All
1923.
13. Hazi Mohd. Rashid (D) thru. LRS Vs XIIth
Additional District Judge Agra & anr 2013 (3)
AWC 2274.

14. Thulasidhara Vs Narayanappa (2019) 6
SCC 409.

15. Gurnam Singh Vs Lehna Singh (2019) 7
SCC 641.
16. St. of M.P. Vs Dungaji (2019) 7 SCC 465.
17. S.V.R.Mudaliar (Dead) by Lrs. & ors. Vs
(Mrs) Rajabu F.Buhari (Dead) by Lrs. & ors.
AIR 1995 SC 1607.
18.Rani
Hemant
Kumari
Vs
Maharaja
Jagadhindra Nath 10 CWN 630.
3 All. Radha Krishna Ji Esthapit Mandir Vs. Ganesh Prasad Mishra & Anr.
709
19. Smt. Sona Devi Vs Nagina Singh & ors.
AIR 1997 Patna 67.

20. Jaideo Yadav Vs Raghunath Yadav & anr.
2009(3) PLJR 529

21. Doodhnath & anr. Vs Deonandan AIR 2006
All

22. Awadh Narayan Singh Vs Harinarayan
(Second Appeal No. 47 of 2015, decided on
22.1.2015).

(Delivered by Hon'ble Virendra KumarII, 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:

"E. Whether the provision of
U.P. Urban Buildings (Regulation of
Letting Rent and Eviction) Act 1972 is
applicable in the present case ?

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
710 INDIAN LAW REPORTS ALLAHABAD SERIES
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 further contended
that they constructed two storied house
and renovated disputed shop with consent
and permission of Cashier Late Sri
Ramendra
Kumar
Saxena.
They
constructed staircase 15 years ago for the
purpose
of
repair
of
roof.
The
representative
of
plaintiff
demanded
amount of Rs. 25,000/- from them. The
respondents refused to pay this amount.
Therefore, suit was instituted on behalf
plaintiff. It is also contended that plaintiff
wants to give disputed shop to another
person on higher rent. The respondent
no.1 and 2 has accepted that they were
tenant of disputed shop at the rate of Rs.
7/- per month from 50 years ago and paid
up to date rent to the plaintiff.

6.

The
plaintiff
contradicted
contentions of written statement and
reiterated the contention made in the
plaint by means of reply filed by it.

7. The trial Court has framed
following six issues, which are as under:

1& D;k fookfnr nqdku uD'kk&utjh
okn&i= v{kj d] [k] x] ?k] izfroknhx.k ls
okn&i= esa crk;s x;s dkj.kksa ds vk/kkj ij [kkyh
djk;s tkus ;ksX; gS \

2& D;k fookfnr nqdku ls eyok gVk;s
tkus ;ksX; gS rFkk oknh dCtk ikus dk vf/kdkjh gS
\

3& D;k oknh 5 gtkj :i;s uqdlku
dh ckcr eqvkotk ikus ds vf/kdkjh gS \

4& D;k lkr :i;s izfrekg ds fglkc
ls eqvkotk oknh ikus dk vf/kdkjh gS \

5& D;k izfroknh dks /kkjk 106 lEifRr
vUrj.k vf/kfu;e dh uksfVl rkehy djk;h x;h gS
\

6& oknh fdl vuqrks"k dks ikus dk
vf/kdkjh gS \

English
version
of
issues
framed by the trial Court is as follows:

"1. Whether the disputed shop
shown by alphabets Ka, Kha, Ga, Gha in
the site-map of the plaint, is liable to be
vacated from the respondents on the basis
of reasons narrated in the plaint ?

2. Whether the malba (debris) is
liable to be removed from the disputed
shop and the plaintiff is liable to get
possession ?
3 All. Radha Krishna Ji Esthapit Mandir Vs. Ganesh Prasad Mishra & Anr.
711

3. Whether the plaintiff is liable
to get compensation of Rs. 5 thousand for
damages ?

4. Whether the plaintiff is liable
to get compensation at the rate of Rs.
Seven per month ?

5. Whether the respondent has
been served the notice under Section 106
of the Transfer of Property Act ?

6. For which relief the plaintiff
is entitled ?"

8. Learned trial Court of Civil Judge
(Junior Division) recorded evidence of
PW-1 Shiv Prakash Singh, PW-2 Mukut
Bihari Mishra, PW-3 Ram Swaroop Singh
and evidence of DW-1 Sant Saran Mishra,
respondent no.2 and DW-2 Aanand
Swaroop Awasthi. It has also considered
documentary evidence relied upon by
both the parties and delivered judgment
dated 19.12.2000 and decreed the plaintiff
's suit and directed the respondents to
vacate disputed shop within 45 days and
also directed to remove construction
material of illegal constructions. The
relief regarding damages was refused.

9. Learned first appellate Court vide
impugned judgment dated 27.03.2001 has
allowed Civil Appeal No. 6 of 2001:
Ganesh Prasad Mishra and others Vs.
Radha Krishna Ji Mandir, Kamlapur and
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. 17/94: Radha
Krishnaji Virajman Mandir, Kamlapur Vs.
Ganesh Prasad Master and another.

10. The appellant/plaintiff being
aggrieved by the impugned judgment and
order has preferred the present second
appeal.

11. During pendency of present second
appeal, respondent no.1 Ganesh Prasad
Mishra
had
expired
and
his
legal
representatives respondent nos. 1/1 to 1/5
were substituted. The respondent no. 1/1
Smt. Chandra Kali Mishra also expired
during pendency of present second appeal.
Her heirs respondent nos. 1/2 to 1/5 and
respondent no.2 were already on record.

12. After death of learned counsel
Sri P.L. Mishra, Advocate, engaged on
behalf of respondents, Card Notices were
issued. Notices issued against respondent
no.2-Sant Sharan Mishra was served
personally, as per report submitted by
OSD on 22.01.2015. Vide order dated
29.10.2018, it was found that notices
were served on respondent nos. 1/2 to 1/5.
The
substitution
application
(C.M.Application No. 109684 of 2017)
was
allowed
regarding
death
of
respondent no.1/1 with the direction that,
"if none appears for the respondents,
present second appeal shall be heard exparte and would be decided on merits".

13. Sri Arun Saxena, learned
counsel
for
the
appellant
sought
adjournment
on
21.12.2018
and
21.01.2019. He did not appear on
08.03.2019. No one had appeared on
behalf of respondents on 21.12.2017,
28.03.2019, 11.04.2019 and 30.04.2019
also. Therefore, this appeal was heard on
06.11.2019 ex-parte.

14. I have heard learned counsel for the
appellant and perused the written arguments also.

15. Learned counsel for the
appellant relying on Sudhir G. Angur v.
712 INDIAN LAW REPORTS ALLAHABAD SERIES
M. Sanjeev, (2006) 1 SCC 141 has
argued that Hon'ble Supreme Court
(Bench of three Judges) has held in paras
4, 5 and 11 as follows:

"4. After the revision was
dismissed the appellants applied for
rejection of the plaint under Order 7 Rule
11 CPC. According to the appellants the
suit was not maintainable by virtue of
Section 40 of the Mysore Act. This
application was dismissed by the trial
court on 6-8-2001. The trial court held
that the question whether the Mysore Act
applied or not would have to be decided
on evidence. The appellants filed a
revision before the High Court of
Karnataka which has been dismissed by
the impugned judgment.

5. At this stage, it must be
mentioned that the Mysore Act has been
repealed in the year 2003. Thus, even
presuming the application under Order 7
Rule 11 was required to be allowed, even
then the plaint would only have to be
returned for presentation to the proper
court. Now the proper court would be the
Court of the Principal City Civil Judge,
Bangalore which is the same court. Thus
it would be an idle formality to have the
plaint rejected to be presented again to the
same court. In such a case no question of
limitation would arise as the time taken in
the earlier suit would get excluded. In the
above view no further consideration was
necessary. However, as the matter has
been fully argued, we deal with all the
contentions.

11. In our view, Mr G.L. Sanghi
is also right in submitting that it is the law
on the date of trial of the suit which is to
be applied. In support of this submission,
Mr Sanghi relied upon the judgment in
Shiv Bhagwan Moti Ram Saraoji v.
Onkarmal Ishar Dass [AIR 1952 Bom
365 : 54 Bom LR 330] wherein it has
been held that no party has a vested right
to a particular proceeding or to a
particular forum. It has been held that it is
well settled that all procedural laws are
retrospective
unless
the
legislature
expressly states to the contrary. It has
been held that the procedural laws in
force must be applied at the date, when
the suit or proceeding comes on for trial
or disposal. It has been held that a court is
bound to take notice of the change in the
law and is bound to administer the law as
it was when the suit came up for hearing.
It has been held that if a court has
jurisdiction to try the suit, when it comes
on for disposal, it then cannot refuse to
assume jurisdiction by reason of the fact
that it had no jurisdiction to entertain it at
the date, when it was instituted. We are in
complete
agreement
with
these
observations. As stated above, the Mysore
Act now stands repealed. It could not be
denied that now the Court has jurisdiction
to entertain this suit."

16. Relying on the aforesaid
precedent
learned
counsel
for
the
appellant has further argued that Section
106 of Transfer of Property Act, 1882 has
been substituted by Act no. 03 of 2003,
vide Section 2 of amending Act, which
got ascent of President on 31.12.2002.
The amending Act provides transitory
provisions as follows:

"3.
Transitory
provisions.-
The provisions of section 106 of the
principal Act, as amended by section 2,
shall apply to-

(a) all notices in pursuance of
which any suit or proceeding is pending
at the commencement of this Act;

(b) all notices which have been
issued before the commencement of this
3 All. Radha Krishna Ji Esthapit Mandir Vs. Ganesh Prasad Mishra & Anr.
713
Act but where no suit or proceeding has
been filed before such commencement."

17. On perusal of transitory
provisions of Act No. 3 of 2003, it reveal
that amended Section 106 of Transfer of
Property Act, 1882 was made applicable
to all notices in pursuance of which any
suit or proceeding is pending at the
commencement of this Act.

First and Second appeal are
deemed to be continuation of the suit.

18. A Coordinate Bench of this
Court in Civil Revision No. 176 of 2006:
Hardoi Zila Sahkari Bank Limited,
Hardoi V. Smt. Sarla Gupta And
Another 2010 SCC Online All 741 has
dealt with provisions of Section 106 on
the
basis
of Transfer
of
Property
(Amendment) Act, 2002 (Act 3 of 2003)
passed by Parliament and U.P. Act No. 24
of
1954
and Article
254
of
the
Constitution of India and observed as
follows:

................

"21. Article 254 reads as under:-
-

"Inconsistency between laws
made by parliament and laws made by the
Legislature of States- (1) If any provision
of a law made by the Legislature of a
State is repugnant to any provision of a
law
made
by
Parliament
which
Parliament is competent to enact, or to
any provision of an existing law with
respect to one of the matters enumerated
in the Concurrent List, then, subject to the
provisions of clause (2), the law made by
Parliament, whether passed before or after
the law made by the Legislature of such
State, or, as the case may be, the existing
law, shall prevail and the law made by the
Legislature of the State shall, to the extent
of the repugnancy, be void.

(2) Where a law made by the
Legislature of a State with respect to one
of
the
matters
enumerated
in
the
Concurrent List contains any provision
repugnant to the provisions of an earlier
law made by Parliament or an existing
law with respect to that matter, then, the
law so made by the Legislature of such
State shall, if it has been reserved for the
consideration of the President and has
received his assent, prevail in that State.

22. Provided that nothing in this
clause shall prevent Parliament from
enacting at any time any law with respect
to the same matter including a law adding
to amending, varying or repealing the law
so made by the Legislature of the State.

23. Article 254(1) lays down a
general rule. Clause (2) is an exception to
that Article and the proviso qualifies the
exception. If there is repugnancy between
the law made by the State and that made
by Parliament with respect to same field,
the law made by Parliament shall prevail
to the extent of the repugnancy and the
law made by the State shall, to the extent
of such repugnancy, be void. A State law
would be repugnant to the Union law
when there is direct conflict between the
two laws. Such repugnancy may also
arise where both laws operate in the same
field and the two cannot possibly stand
together.
For
example,
where
both
prescribed punishment for the same
offense but the punishment differs in
degree or kind or in the procedure
prescribed. In all such cases the law made
by the Parliament shall prevail over the
State law in view of Article 254.

24. Under Article 254 of the
Constitution, only in the following
circumstances question of repugnancy
comes (i) when there is direct conflict
between the two provisions. This may
happen- (a) Where one cannot be obeyed
714 INDIAN LAW REPORTS ALLAHABAD SERIES
without disobeying the other (b) two
enactments may also be inconsistent
although obedience to each of them may
be possible without disobeying the other.

25. Presumably, the Parliament
with a view to introduce a uniform law
throughout the country avoiding defect
found in practice passed the Transfer of
Property (Amendment) Act, 2002. This
object would be frustrated if the argument
that both the U.P. Act No. No. 24 of 1954
and the Amending Act, 2002 should coexist as the U.P. Act No. of 1954 has not
been omitted. By State Amendment i.e.
U.P. Act No. 24 of 1954 the period of
notice of "fifteen days" as prescribed in
Section 106 of the Transfer of the
Property Act was substituted by the words
"thirty days" but by the Transfer of
Property (Amendment) Act, 2002 the
entire 106 Section occurring in the
Transfer of Property Act, 1882 has been
substituted by a new Section prescribing
therein the period of notice as fifteen
days. Therefore, in view of the settled
law, the Central Amendment Act would
prevail over the U.P. Act No. 24 of 1954.

26. It may also be noted that
though the notice to quit was sent by the
respondents
to
the
revisionist
on
4.11.2004 providing 15 days time to
vacate the premises but, admittedly, the
suit was instituted by the revisionists in
the year 2005, which is admittedly, much
after 15 days time, provided in the notice.

27. Even otherwise as subSection 3 of Section 106 has been brought
on the statute book by means of
Amendment Act, 2002, it specifically
provides that the notice under sub-Section
3 of Section 106 of the Act shall not deem
to be not valid merely because the period
mentioned therein falls short of the period
specified under that subsection, where a
suit or proceeding is filed after the expiry
of the period mentioned in that subsection.
Thus
by
fixation
of
law,
proceedings cannot be vitiated on the
ground of defective notice.

28. In a case reported in (1975)
1 SCC 192 : AIR 1975 SC 164 Boucher
Pierre Andre v. Supdt. Central Jail, their
Lordships of Hon'ble Supreme Court held
that where a legal fiction is created, full
effect must be given to it and it should be
carried to its logical conclusion (para 3).

29. In (1997) 1 SCC 650 Gajraj
Singh
v.
State
Transport Appellate
Tribunal, after considering a number of
earlier cases, Hon'ble Supreme Court
observed as under:

"22........................Legal fiction
is one which is not an actual reality and
which the law recognises and the court
accepts as a reality. Therefore, in case of
legal fiction the court believes something
to exist which in reality does not exist. It
is nothing but a presumption of the
existence of the state of affairs which in
actuality is non-existent. The effect of
such a legal fiction is that a position
which otherwise would not obtain is
deemed
to
obtain
under
the
circumstances."

30. Aforesaid proposition of law
has been affirmed by the Hon'ble
Supreme Court in the cases reported in
(2004) 6 SCC 59 State of West Bengal v.
Sadan K. Bormal, (2005) 3 SCC 161
State of A.P. v. Pensioner's Association,
(2000) 2 SCC 699 State of Maharashtra v.
Laljit Rajshi Shah, (2008) 5 SCC 257
UCO Bank v. Rajinder Lal Kapoor.

31. In view of the above
discussions, the provisions of the U.P. Act
No. 24 of 1954 cannot be allowed to
operate only because it has received the
Presidential assent when the entire
provision of Section 106 of the Transfer
of Property Act has been substituted in
3 All. Radha Krishna Ji Esthapit Mandir Vs. Ganesh Prasad Mishra & Anr.
715
question is directly in conflict with the
Central Act.

19. I have perused un-amended
Section 106 of Transfer of Property Act,
1882 and amended Section 106 of
Transfer of Property Act, on the basis of
Act 03 of 2003, which are as follows:

Unamended:-

"106. Duration of certain leases
in absence of written contract or local
usage.- (1) In the absence of a contract or
local law or usage to the contrary, a lease
of immovable property for agricultural or
manufacturing purposes shall be deemed
to be a lease from year to year,
terminable, on the part of either lessor or
lessee, by six months' notice expiring
with the end of a year of the tenancy; and
a lease of immovable property for any
other purpose shall be deemed to be a
lease from month to month, terminable,
on the part of either lessor or lessee, by
fifteen days' notice expiring with the end
of a month of the tenancy.

Every notice under this section
must be in writing, signed by or on behalf
of the person giving it, and either be sent
by post to the party who is intended to be
bound by it or be tendered or delivered
personally to such party, or to one of his
family or servants at his residence, or (if
such tender or delivery is not practicable)
affixed to a conspicuous part of the
property."

Amended:-

After substitution by Transfer of
Property (Amendment) Act, 2002 (Act
No. 3 of 2003), Section 106 of the
Transfer of Property Act, 1882 reads as
under:--

Duration of certain leases in
absence of written contract or local
usage:--

(1) In the absence of a contract
or local law or usage to the contrary, a
lease
of
immovable
property
for
agricultural or manufacturing purposes
shall be deemed to be a lease from year to
years, terminable, on the part of either
lessor or lessee, by six months' notice;
and a lease of immovable property for
any other purpose shall be deemed to be a
lease from month to month, terminable,
on the part of either lessor or lessee, by
fifteen days' notice.

(2) Notwithstanding anything
contained in any other law for the time
being in force, the period mentioned in
subsection (1) shall commence from the
date of receipt of notice.

(3) A notice under sub-section
(1) 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.

(4) Every notice under subsection (1) must be in writing, signed by
or on behalf of the person giving it, and
either be sent by post to the party who is
intended to be bound by it or be tendered
or delivered personally to such party, or to
one of his family or servants at his
residence, or (if such tender or delivery is
not practicable) affixed to a conspicuous
part of the property.]"

Substitution of Section 106 results in
repeal of the earlier provision and its
replacement by the new provision.

20. Learned counsel for the
appellant
has
relied
on
Reddy
Ramamurthy (died) by LRs. Vs. Goli
Bhaskara Rao 2006 SCC Online AP 629
of High Court of Judicature at Andra
Pradesh at Hyderabad and argued that
Andra Pradesh High Court in para 14 and
716 INDIAN LAW REPORTS ALLAHABAD SERIES
15 has considered Transfer of Property
(Amendment) Act, 2002, Central Act No.
3 of 2003 and observed as follows :

"14. Accordingly, the Transfer
of Property (Amendment) Act, 2002,
Central Act No. 3 of 2003, was enacted
and by Section 2 thereof, Section 106 of
the
Principal
Act
was
amended
specifically incorporating sub-section (3)
under which a notice under sub-section
(1) 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.
Sub-section (3) as amended, undoubtedly,
makes Ex. A.1 notice read with Ex. A.3
notice not invalid due to termination of
tenancy on 11-10-1991 instead of 12-101991.

15. The amended Section 106
shall apply according to the transitory
provision in Section 3 of the Amendment
Act to all notices in pursuance of which
any suit or proceeding is pending at the
commencement of the Amendment Act. It
is true that the suit was disposed of on 118-1994 and was not pending by the date
of the Amendment Act coming into force.
But this appeal by the defendant against
the judgment and decree in the suit is
undoubtedly pending then and even now.
As clarified by Hon'ble Sri JusticeV.V.S.
Rao in the orders on Review A.S.M.P. No.
338 of 2005, dated 13-12-2005, appeal is
a continuation of the suit and even if the
matter is pending at the appellate stage,
the amended provision would apply. The
contention to the contrary was negatived.
The contention that this appeal is "not in
pursuance of Exs. A.1 and A.3 notices and
therefore, the amended provision does not
apply, defeats the very purpose and object
of the amendment. Even without the aid
of the statement of objects and reasons for
the Legislation, the plain, unambiguous
and grammatical language of Sections 2
and 3 of Amendment Act makes it clear
that the pendency of a lis in which
eviction of tenant is sought, in pursuance
of a notice to quit, is what all is required
for the application of the amended
provision, irrespective of whether the
pending lis is at the instance of the
landlord or the tenant. An appeal by
tenant against eviction in pursuance of a
notice to quit also arises in pursuance of
such notice for adjudication of the
validity or otherwise of the same. Such
appeal, in effect and substance, becomes
pending in pursuance of such notice only
and any other construction will result in
an absurd situation where the notice
would have become valid, if the suit were
pending and would have to be considered
invalid, if the appeal is pending, though it
is a continuation of the suit. While the
constitutional and legal validity of the
amendment
is not
in
dispute,
the
transitory provision in Section 3 of the
Amendment Act has to, therefore, apply
with full force to all notices in pursuance
of which any suit or appeal is pending at
the commencement of that Act. In that
view of the matter, the appeal has to fail."

Substantial Question of law F :-

21. Learned counsel for the
appellant relying upon amended Section
106 Sub-Clause (3) has vehemently
argued that a notice under Sub-Section (1)
of Section 106 of Transfer of Property Act
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
3 All. Radha Krishna Ji Esthapit Mandir Vs. Ganesh Prasad Mishra & Anr.
717
filed after the expiry of the period
mentioned in that sub-section.

There is substance in the argument of
learned counsel for the appellant, because
Section 106 sub-clause (3) provides that
notice under sub-section (1) shall not be
deemed to be invalid on the basis of fact
that appellant/plaintiff sent notice-8 Ga/ 9
Ga on 03.08.1993 terminating tenancy of
respondents on 31.08.1993.

22. Learned counsel for the
appellant
has
further
argued
that
according to provisions of amended
Section 106 sub-clause (1) of Transfer of
Property Act, period of notice has been
prescribed 15 days in stead of 30 days.
State Legislature of U.P. by means of Act
No. 24 of 1954 has substituted period 30
days in place of 15 days. Amendment Act
03 of 2003 will prevail over, the aforesaid
said amendment made under Section 106
of Transfer of Property Act,1882 by
means of Act No. 24 of 1954. Therefore,
at present 15 days notice is required for
termination of lease from month-tomonth.

On the other hand, according to
amended Section 106 sub-clause (3) of
Transfer of Property Act, 1882 is squarely
applicable to the pending cases also.
Therefore, for the sake of argument if it is
considered that three days were short of
the clear 30 days for vacating the disputed
shop by the respondents, as per provisions
amended by the Act No. 24 of 1954 by
the Legislature of the State of U.P., would
not
make
notice
dated
03.08.1993
defective or invalid, because suit was
instituted by the appellant/plaintiff on
12.01.1994 much after period of 30 days.
The notice was issued on 03.08.1993,
which was served on the respondent on
10.08.1993 by refusal as reported by
Postman.

23. Learned trial Court has recorded
specific finding regarding Issue No.5 that
notice- 8 Ga sent to respondents by
registered
post
along
with
acknowledgment.
On
original
copy
Notice - 9 Ga, post-man has endorsed the
aforesaid fact that respondent "Ganesh
Prasad refused to accept notice", who
was the original tenant of disputed shop.
Therefore, notice under Section 106
Transfer of Property Act was sufficiently
served on the respondent no.1/tenant.

24. Learned trial Court has relied
upon precedent of this Court propounded
in the case of Smt. Amina Khatoon and
others Vs. Smt. Johra Bibi and others,
AIR 1971 Allahabad page 372 and
Ganga Ram Vs. Smt. Phulwati, 1970
ALJ page 336.

25. As far as, learned First Appellate
Court has relied upon defect of short period
mentioned in notice under Section 106
Transfer of Property Act and complete/clear
30 days were not given to respondents for
vacating the disputed shop is also not well
founded, because defect of Notice- 9Ga was
not pleaded by the respondents in their
written statement. On this score also, learned
First Appellate Court could not record
finding that notice under Section 106
Transfer of Property Act was defective on
the aforesaid ground.

26. Learned counsel for the appellant
has
relied
upon
exposition
of
law
propounded by Hon'ble Supreme Court in
the case of Dharam Pal v. Harbans Singh,
(2006) 9 SCC 216 and argued that Hon'ble
Supreme Court in paras 7 and 8 of the said
judgment has held as follows:

"7. Learned counsel for the
appellant submits that none of the two
718 INDIAN LAW REPORTS ALLAHABAD SERIES
recitals contained in the notice can fulfil
the requirement of Section 106 of the
Transfer of Property Act. One recital in
the notice terminates the tenancy from the
date of issue of notice. The other one
requires the tenant to vacate the premises
within 15 days from the date of the
receipt of the notice. Both are bad in the
light of the requirements spelled out by
Section 106 of the Transfer of Property
Act. The learned counsel seems to be
right in urging the pleas. However, still
we feel that the appellant cannot be
allowed relief. Law is well settled 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. In the present case, the only
objection taken in the written statement is
that the notice issued by the plaintiff was
"illegal, null and void and ineffective
upon the right of the defendant". The
thrust of the plea raised by the defendantappellant in his written statement was that
the notice was issued by the person who
did not have the authority from the
landlord to give the notice. The plea so
taken has been found devoid of merit by
the High Court and the courts below. The
plea that the notice was insufficient in the
sense that it did not give 15 clear days to
the tenant to vacate or that the notice did
not terminate the tenancy with the expiry
of the month of the tenancy, has not been
taken in the written statement.

8. Obviously
for
want of
specific plea in the written statement, the
trial court has not framed any issue
reflecting an objection to the validity or
sufficiency of notice, the plea in the
manner in which it is sought to be urged
before us. The plea as to insufficiency of
notice should be deemed to have been
waived by the appellant and cannot be
allowed to be urged at this stage. No fault
can be found with the judgment and
decree of the High Court as also of the
two
courts
below
upholding
the
termination of tenancy and the plaintiffrespondent's entitlement to evict the
tenant."

27. Learned counsel for the
appellant has relied upon exposition of
law propounded by Hon'ble Supreme
Court in the case of Bhagabandas
Agarwalla v. Bhagwandas Kanu, (1977)
2 SCC 646 and argued that Hon'ble
Supreme Court in paras 3 and 4 of its
judgment has observed as follows:

"3. Now, it is settled law that a
notice to quit must be construed not with
a desire to find faults in it, which would
render it defective, but it must be
construed ut res magis valeat quam
pereat. "The validity of a notice to quit",
as pointed out by Lord Justice Lindley,
L.J. in Sidebotham v. Holland [(1895) 1
QB 378] , "ought not to turn on the
splitting of a straw". It must not be read in
a hyper-critical manner, nor must its
interpretation be affected by pedagogic
pendatism or over-refined subtlety, but it
must be construed in a common sense
way. See Harihar Banerji v. Ramsashi
Roy [45 IA 222 (Bengal HC)] . The notice
to quit in the present case must be judged
for its validity in the light of this well
recognised principle of interpretation.

4. It is indisputable that under
Section 106 of the Transfer of Property
Act the notice to quit must expire with the
end of the month of the tenancy, or in
other words, it must terminate the tenancy
with effect from the expiration of the
month of the tenancy. If it terminates the
tenancy with effect from an earlier date, it
3 All. Radha Krishna Ji Esthapit Mandir Vs. Ganesh Prasad Mishra & Anr.
719
would be clearly invalid. Now, here the
notice to quit required the respondents to
vacate the premises "within the month of
October 1962" and intimated to them that
otherwise they would be "treated as
trespassers from November 1" in respect
of the premises.