# Ramesh Kumar Singh Revisionist v. Virendra Singh & Ors

- **Citation:** (2023) 1 ILRA 1355
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-20
- **Case number:** Civil Revision No. 465 of 2012
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramesh-kumar-singh-revisionist-v-virendra-singh-ors-49123
- **Pages:** 8

## Headnote

Sri Abhijit Banerjee

Rent and eviction-Dispute over unpaid rent
and eviction -Legal disputes ensued, covering
notice validity, monthly rent amount, and
default - trial Court ruled in favor of landlords
- denied eviction relief - High Court reversed
the notice finding- compliance with the
amended Section 106- reduced notice to 15
days - affirmed the rent amount and default-
decreeing eviction against the tenant.

Revision dismissed. (E-9)

## Text

1 All. Ramesh Kumar Singh Vs. Virendra Singh & Ors.
1355
gifts under the Mohammedan Law and
death bed gifts of movable property alone
for other citizens. Section 129 reads:

129. Saving of donations mortis
causa and Muhammadan law.--Nothing
is this Chapter related to gifts of moveable
property made in contemplation of death,
or shall be deemed to affect any rule of
Muhammadan law.

20. This being the substantive law
relating to disposition by gift and given the
terms of the State Amendment vide subSection (14-A) of Section 2 of the Act of
1899, there is not the slightest doubt that
after enforcement of the State Amendment,
a memorandum of oral gift recording an
antecedent transaction of hiba, howsoever
described and in whatever kind of words
couched, is taxable to stamp duty as an
instrument of gift. The order impugned
holding to the contrary passed by the
learned Additional District Judge cannot be
countenanced.

21. This revision succeeds and is
allowed.
The
impugned
order
dated
07.12.2007 is hereby set aside and the
application bearing paper No. 357-Ga-2
restored to the file of the Trial Court, to be
decided afresh, after hearing parties, in
accordance with the guidance in this
judgment. Needless to add that orders on the
said application shall be passed within a month
of receipt of this order by the Trial Court.

22. There shall be no order as to costs.

23. The Registrar General is directed
to circulate a copy of this order to all the
learned District Judges, and the Chief
Controlling
Revenue
Authority,
Uttar
Pradesh.
----------
(2023) 1 ILRA 1355
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.12.2022

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Civil Revision No. 465 of 2012
with
Civil Revision No. 486 of 2012

Ramesh Kumar Singh ...Revisionist
Versus
Virendra Singh & Ors. ...Respondents

Counsel for the Revisionist:
Sri Sumit Daga, Sri Vikrant Pandey

Counsel for the Respondents:
Sri Abhijit Banerjee

Rent and eviction-Dispute over unpaid rent
and eviction -Legal disputes ensued, covering
notice validity, monthly rent amount, and
default - trial Court ruled in favor of landlords
- denied eviction relief - High Court reversed
the notice finding- compliance with the
amended Section 106- reduced notice to 15
days - affirmed the rent amount and default-
decreeing eviction against the tenant.

Revision dismissed. (E-9)

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

1. Since both the revisions have been
preferred by the defendant-tenant and the
plaintiffs-landlords, respectively, against
the judgment and order dated 22.8.2012
passed
by
Judge
Small
Causes
Court/Additional District Judge, Court
No.1,
Hathras.
Therefore,
both
the
revisions are being decided by this
common judgement.

2. In brief, facts of the case are that
Virendra Singh and others are the owner
1356 INDIAN LAW REPORTS ALLAHABAD SERIES
and the landlord of the house in suit in
which the opposite party-defendant is a
tenant from 1994 @ 1,000/- per month
apart from 10 % water and house tax.

3. Since the plaintiffs stay out of
Hathras for a long time in connection to
their job hence their mother Smt. Shanti
Devi used to live with minor grand son
Raju alias Arvind Kumar. Smt. Shanti Devi
died in the year 2001, thereafter plaintiffs
are the owner and landlords of the house in
question and are entitled to receive the rent.
The defendant is a great defaulter in
payment of rent and has not paid the rent of
the said house since 1.10.1999. When
plaintiffs demanded the rent, he preferred
false case
against the plaintiffs for
permanent injunction for unnecessarily
harassing the plaintiffs.

4. Plaintiffs through their counsel sent
legal notice dated 11.8.2022 and offered to
pay the rent and taxes within 30 days from
receiving the notice. In spite of service of
notice, defendant did not pay the rent and
the amount of taxes but a false and
fabricated reply alleging himself to be the
tenant @ Rs. 200/- per month and also did
not accept that the amount was due against
him. The tenancy of the defendant has been
terminated. Since 1.10.1999 to 31.18.2002
there is arrears of rent of Rs. 25,000/-, Rs.
3,500/- each for house and water tax along
with Rs. 3,00/- expense towards notice.
Total Rs. 42,300/- is due which has not
been paid by the defendant in spite of
notice, hence the defendant is liable to be
evicted and the due amount of the rent is
liable to be recovered and the defendanttenant is also liable to pay Rs. 2,500/- per
month for use and occupation of the shop
in suit. Valuing the suit and after paying the
sufficient court fee, the plaintiffs had
preferred the suit.

5. In written statement 11 C defendant
admitted the plaintiffs to be the owner and
landlords of the shop in suit and has said
that no cause of action arises to the
plaintiffs; they are not entitled for any
relief; the defendant-tenant had taken the
shop in suit on rent from 10.2.1992 @ Rs.
2,00/- per month along with house and
water tax from Smt. Shanti Devi; he has
been paying the rent regularly to Smt.
Shanti Devi but she never provided any
receipt, however, she used to note the
receiving on a diary; Shanti Devi died in
the year 2001, thereafter the tenant paid the
rent to Dharmendra Kumar till November
2001; Dharmendra Kumar also passed
away on 20.11.2001, thereafter plaintiffs
demanded the rent from him separately and
served notice through their counsel in the
month of February, 2002 and thereafter
with mutual consent received the rent from
the defendant without giving receipt of rent
but noted the payment in diary and also got
the signature of the defendant; the said
diary is in the possession of the plaintiffs.

6. On receiving of notice dated
11.8.2002 defendant came to know about
the malafide intention of the plaintiffs and
prepared reply on 4.9.2002 and sent
through
his
counsel
on
5.9.2002.
Defendant-tenant also sent the reasonable
rent from 11.6.2002 to 10.9.2002 which
was not received by the plaintiffs. The
notice is completely illegal and the
illegitimate on which basis the tenancy
never ends. On the date of notice dated
11.8.2002, there was only arrears of two
months rent which was not received
intentionally by the plaintiffs. In the notice,
the plaintiffs have wrongly endorsed that
the rent is due since 1.10.1999. The tenancy
commenced from 11th of the month, not
from the first day of the month. The
plaintiffs have not filed any document,
1 All. Ramesh Kumar Singh Vs. Virendra Singh & Ors.
1357
hence the suit is barred by Order 7 Rule 14
CPC, Section 106 of Transfer of Property
Act and Section 20 (2) (A) of U.P. Act No.
13 of 1972. Raju s/o Dharmendra Kumar is
a major person and not the minor, in the
plaint he has wrongly been shown to be
minor.

7. The defendant instituted original suit
no. 492 of 2002 (Ramesh Kumar Vs. Raju )
in the Court of Civil Judge (J.D.) Hathras, for
permanent injunction in which interim
injunction has been issued in favour of the
defendant. The house in suit is situated at the
outskirt of Hathras at Madhugari where there
is no market and the rent of shop is not more
than Rs. 200/- monthly. Therefore, the suit is
liable to be dismissed with cost.

8. The plaintiffs filed replica 12C1 and
denied the contents of the written statement
and reiterated the version of the plaint.

9. From the side of plaintiffs, P.W.-1,
Virendra Singh and P.W.2, Om Prakash had
been examined. In documentary evidence
papers from list 18 C1 notice, postal receipt,
acknowledgment and alleged diary had been
filed.

10. From the side of defendant-tenant,
he himself examined as D.W.-1 and one
Komal Singh as D.W.2. In documentary
evidence defendant-tenant had filed chalani
form, tender receipts; notice dated 20.2.2002,
registry receipt, copy of the reply dated
4.9.2022 and other tenders.

11. After hearing, the learned trial Court
framed
the
following
points
for
determination:

(1) Whether the notice dated 11.8.2002
given by the plaintiffs is against the law
and this notice does not terminate the
tenancy of the defendant-tenant?

(2) Whether the rate of the shop was
Rs. 1000/- per month apart from house and
water tax as alleged by the plaintiffs or the
rate of the shop was Rs. 200/- per month
including house and water tax as alleged
by the defendant-tenant?

(3) Has the defendant-tenant made any
default in paying the rent of the shop in
question, if so, the effect?

(4) Are the plaintiffs entitled to any
relief? If yes, then how?

12. In this case the trial Court has
decided point nos. 2 & 3 in favour of the
landlord but has decided point no. 1
against
the
plaintiffs/landlords
and
accordingly point no. 4 has been decided
partially in favour of the defendant-tenant
and had declined the relief of eviction.

13. Against the observations made
by the trial Court in respect of issue no. 1
and
accordingly
regarding
partially
allowing the relief through point no.4, the
plaintiffs have preferred the revision
bearing no. 486 of 2012. Being aggrieved
by the observations made in respect of
point no. 2 & 3 accepting the rate of Rs.
1,000/- per month plus house and water
tax and not admitting the version of the
defendant-tenant
and
treating
the
defendant-tenant to be defaulter and
directing him to pay the arrears of the
rent and taxes as per the version of the
plaintiffs, the defendant has preferred
revision bearing no. 465 of 2012.

14. This Court is deciding the veracity
of the findings given by the trial Court on
the basis of evidence and the relevant law.
Therefore, both the revisions are being
decided as under.
1358 INDIAN LAW REPORTS ALLAHABAD SERIES

15. Point for determination no. 1;

This point has been decided against
the plaintiffs and the trial Court has
recorded the finding that on perusing the
notice, he found that after the expiry of 30
days, tenancy has not been terminated
however it has been mentioned therein to
provide possession within 30 days hence
notice in question is found to be contrary to
the principles enunciated in Section 106 of
the Transfer of Property Act, 1882. The
trial court concluded that the notice is
defective, therefore, the tenancy of the
defendant-tenant can not be terminated in
accordance with law and he can not be
evicted.

In this case, notice has been given on
11.8.2002, the defendant admits that on
4.9.2002 he had prepared the reply of
notice and had sent it to the plaintiffs on
5.9.2002. The record of trial Court is not
available with this Court. However, some
relevant papers have been annexed by the
tenant as annexures to the revision. Perusal
of the plaint shows that the plaint had been
instituted on 29.10.2009 while in the
judgment the trial Court has written it to be
presented on 21.10.2002 which may be a
typographical mistake.

For proper adjudicating this point, it
would be proper to mention Section 106 of
the Transfer of Property Act 1882.

Section 106 in The Transfer of
Property Act, 1882;

1 [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; 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 subsection, where a suit or proceeding is filed
after the expiry of the period mentioned in
that sub-section.

(4) Every notice under sub-section (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.]

By the amendment Act 3 of 2002,
Section 106 has been amended w.e.f.
31.12.2002 by which now Section 106
contains four sub-sections and the period of
notice is now 15 days where the lease is for
any
other
purpose
other
than
the
agricultural and manufacturing, if the
tenancy is month to month but where the
tenancy is from year to year, the period of
notice would be 6 months as it was prior to
the amendment. Since in this case the
notice was given before amendment on
11.8.2002, therefore, in this case the notice
should have been given prior to 30 days.
Amended sub-section 3 of the aforesaid
Section is important. According to which
notice shall not be deemed to be invalid
1 All. Ramesh Kumar Singh Vs. Virendra Singh & Ors.
1359
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. In
this case the notice was given on 11.8.2002,
the notice was sent through registered post
within the city hence it would have been
received by the defendant-tenant within
three
or
four
days.
Though
the
receipt/acknowledgment is not on record to
conclude that when and on which date the
defendant-tenant had received notice but he
admits that he had prepared reply of the
notice on 4.9.2002 and had sent the same to
the plaintiffs through his counsel on
5.9.2002. If days are calculated, it comes
out that even from 4.9.2002, the suit was
instituted after 30 days i.e. 29.10.2002.
Thus, it can not be said that 30 days period
was not provided to the defendant-tenant to
comply with the notice.

The notice is not on record, copy of
the notice has not been filed by either party
but the trial Court has noted the 'second
paragraph of the notice' in which it is
written that after receiving the notice
within 30 days, defendant had to pay the
arrears of rent and to evict the possession
of the shop in suit and to provide the actual
possession to the plaintiffs.

The learned trial Court referring the
judicial precedent Prabhakari Adhikari
Devasthan Vibhag Jodhpur and Others Vs.
Jamshed Ali and Others, 1999 AIHC 225
(Rajasthan High Court), concluded that if
in the notice it is not written that the
tenancy would be terminated after the
expiry of 30 days, the said notice is illegal
and by such notice the tenancy can not be
terminated. The notice was given on
11.8.2002 while the suit was instituted on
29.10.2002 after expiry of two months and
18 days, therefore, it can be concluded that
notice given by the plaintiffs-landlords is
legal hence finding given by the trial Court
regarding point no.1 treating the notice to
be not legal in respect of eviction of the
defendant-tenant is reversed and it is
concluded that the notice under Section 106
of Transfer of Property Act, is legal for the
purposes of the suit. This finding finds
support
from
the
clause
3
of
the
amendment Act 2002 which is as under:

"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."

Thus, the notice of only 15 days is
sufficient.

16. Point for determination no. 2:

On the basis of the averments of the
plaint and the written statement, this point
for determination had been framed as to
whether monthly rent of the shop in suit is
Rs. 1,000/- per month plus water and house
tax or is only Rs. 2,00/- per month
including water and house tax, as alleged
by the defendant-tenant.

This issue has been decided by the
trial Court in favour of the owner landlord
on the basis of evidence. The trial Court
has admitted that there is no weakness or
admission in the evidence of the plaintiffs'
witnesses on which basis it is concluded
that the rate of rent is not less than 1,000/-
per month and house and water tax in
addition to that. P.W.1 and P.W.2 have
proved the diary and it has been accepted
by the trial Court. Defendant-tenant could
not produce any cogent and reliable
evidence that the rate of rent was only Rs.
1360 INDIAN LAW REPORTS ALLAHABAD SERIES
2,00/- per month and also including the
house and water taxes. Though the
defendant-tenant
had
mentioned
the
property to be situated at the outskirt of the
city but in examination he had admitted
that shop in suit is situated 10-15 steps
away from the main post-office. He has
also admitted that behind the shop in suit,
there is Gover Hospital and Hathras
Kotwali is also situated at a distance of
stone's throw. It is also admitted to the
defendant that Kotwali and head office both
are situated in the middle of the city. On the
basis of said evidence the trial Court
concluded that in such a posh area, the rate
of shop in suit can not be less than Rs.
1,000/- per month plus house and water
taxes.

The trial Court has also imposed
responsibility on the defendant-tenant to
prove this fact and found that the
defendant-tenant could not discharge his
duty.

It is settled law that the burden to
prove the payment of rent is on the tenant.
In this respect the learned trial Court has
cited following rulings-

a) Suresh Chandra and Others Vs.
Special
Judge
(E.C.
Act)/Additional
District
Judge,
Jalaun-
Urai,
2005
A.L.J.(N.O.C.) 1062 (Allahabad).

b)
Md.
Siddiqui
Vs.
Second
Additional District Judge Unnao and
Ohters, 1997 (15) L C D-751.

c) Smt. Sulocharani Jain and Others
Vs. Eighth Additional District Judge,
Saharanpur and Others, 2002 (20) LCD
785 (All. High Court).

d) Balram Vs. Baikunthi Devi, 1988
AWC 1528.

e) Laxmi Narain Gupta Vs. Smt.
Shanti Nigam, 2003 (21) L.C.D. 1301.

f) Smt. Shanti Devi Mishra Vs. Sri
Gopal Narain Mishra and Others, 1983,
ALJ, 839.

On the basis of the principles laid
down in the aforementioned judicial
precedents,
the
learned
trial
Court
concluded that the burden to prove the
payment of rent is on the tenant. This Court
is also in conformity with the trial Court
about this finding.

In Balram (supra), it has also been
held that as per Section 7 of the U.P. Act
13, 1972, the burden to pay the water and
house tax is on the tenant if contrary to that
there is no any agreement. In this case the
defendant could not establish that there was
any agreement between the landlords and
the tenant that water and house taxes would
be paid by the plaintiffs-landlords or it has
also been included in the rent.

In Smt. Shanti Devi (supra), it has
been held that if the amount under Section
20 (4)of the U.P. Act No. 13, 1972, the rent
is not deposited, the tenant would be liable
to be evicted. It has also been propounded
that the arrears of water tax has to be
deposited by the tenant. In this respect it is
noteworthy that the trial Court has
concluded that U.P. Act, 13, 1972 does not
apply as the house was built prior to the cut
of date i.e. April 26, 1985, for application
of the U.P. Act, 13, 1972. In this respect the
relevant portion of Section 2 is reproduced
herein:

[Provided that where any building is
constructed substantially out of funds
obtained by way of loan or advance from
the State Government or the Life Insurance
Corporation of India or a bank or a cooperative society or the Uttar Pradesh Avas
Evam Vikas Parishad, and the period of
1 All. Ramesh Kumar Singh Vs. Virendra Singh & Ors.
1361
repayment of such loan or advance exceeds
the aforesaid period of ten years then the
reference in this sub-section to the period
of ten years shall be deemed to be a
reference to the period of fifteen years or
the period ending with the date of actual
repayment of such loan or advance
(including interest), whichever is shorter.]:

[Provided
further
that
where
construction of a building is completed on
or after April 26, 1985 then the reference in
this sub-section to the period of ten years
shall be deemed to be a reference to a
period of 6 [forty years] from the date on
which its construction is completed.]

Explanation I. [For the purposes of
this 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 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 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.

This Court is of the considered view
that the rate of rent was Rs. 1,000/- per
month plus house and water tax which has
also been proved from the evidence of
P.W.1 and P.W.2 who have also proved the
diary in which the payment of rent made by
the defendant-tenant has been entered. Thus
on the basis of the oral and documentary
evidence and also considering the locality
of the shop in suit, this Court concludes
that the findings recorded by the trial Court
on this point is correct.

17. Point for determination no. 3,
has been framed as to whether the
defendant-tenant has defaulted in payment
of rent. This point has also been decided
against the defendant-tenant and in favour
of the landlord. From the evidence of P.W.1
and P.W.2 and also on the basis of diary, it
is proved that the defendant-tenant has not
paid the rent and he has wrongly taken the
defence that he had paid up to date rent and
when the rent was not accepted by the
plaintiffs, he sent the rent amount through
money order.

It has also been proved that the rent
was Rs. 1,000/- per month and the tenant
was also liable to pay 10 % of the house
and water taxes. Certainly the payment has
not been made by the tenant and he has
defaulted
in
paying
the
rent.
As
documentary evidence, defendant-tenant
had filed some tenders which were perused
by the trial Court and the trial Court found
that some amount through five tenders have
been deposited by the tenant but he has not
deposited the house and water taxes in
addition to the rent and he has not
1362 INDIAN LAW REPORTS ALLAHABAD SERIES
deposited the rent @ 1,000/- per month
after service of notice. The defendanttenant has not deposited the admitted rent
in the Court, hence, it is concluded that the
defendant-tenant has defaulted in making
payment of the rent. Thus, point for
determination no. 3 goes against the
defendant-tenant and in this regard the
finding recorded by the trial Court is
affirmed.

18. The point for determination no.
4;

On
the
basis
of
the
aforesaid
discussions, it has been proved that the
defendant-tenant is the defaulter, he has not
paid the rent and taxes, there is no defect in
notice, hence, the trial Court has wrongly
dismissed the suit in respect of relief of
eviction. Since it is found that the suit was
not bad under Section 106 of the Transfer
of the Property Act, therefore, the suit had
to be decreed in toto for the reliefs claimed
by the plaintiffs-landlords.

19. Both the revisions are decided
accordingly.

Order

(i). Civil Revision No. 465 of 2012 is
dismissed with cost.

(ii). Civil Revision No. 486 of 2012 is
allowed and the decree of eviction from the
shop in suit is also passed against the
defendant-tenant (Ramesh Kumar Singh) in
addition to the other reliefs already granted
by the trial Court.

(iii). Let a copy of this order be placed
on the record of Civil Revision No. 486 of
2012 (Virendra Singh and Others Vs.
Ramesh Kumar Singh).

(iv). A copy of this judgment be sent
to the Court of Judge Small Causes
Court/Additional District Judge Court No.
1, Hathras, for keeping on the concerned
file.
----------
(2023) 1 ILRA 1362
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.12.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 5737 of 2013

Ajayraj @ Raja ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri A.C. Srivastava, Sri Uttar Kumar
Goswami (A.C.)

Counsel for the Respondent:
G.A., Sri S.K. Dubey

Criminal Law- Indian Evidence Act, 1872-
Section 3- There is no doubt that when an
occurrence takes place inside the house,
only the family members and the relatives
are eye witnesses but in this case in hand,
the testimony of alleged eye witnesses do
not
inspire
confidence-Informant
has
admitted that he had not seen the
occurrence. PW-4 and PW-5 are other
alleged eye witnesses but there are
several material contradictions in their
evidence which go to the root of the case.

Although testimony of family members of the
deceased cannot be doubted merely on the
ground that they are family members of the
deceased,
but
where
there
are
material
contradictions in the testimony of the alleged
eye witnesses which go to the root of the case
of the prosecution then such testimony is
rendered doubtful and unreliable.

Criminal Law- Indian Evidence Act, 1872-
Section
3-
There
is
no
doubt
that