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Q.ALAM versus IIND A.D.J.

High Court of Judicature at Allahabad

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Q.Alam v. Iind A.D.J. - WRIT - A No. 10231 of 1987 [2005] RD-AH 6351 (24 November 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

(Reserved)

Civil Misc. Writ Petition No. 10231 of 1987

Qamar Alam and another Versus II Additional District Judge, Meerut.

Hon'ble S.U.Khan J

This is landlord's writ petition. Petitioners landlords filed SCC Suit No. 255 of 1984 against respondents No. 2 to 5 Smt Ram Kali and others before JSCC Meerut. In the plaint of the suit, it was alleged that plaintiffs were landlords and defendants were their tenants in the premises in dispute which was in the form of one room. Rate of rent was Rs. 2/- per month. It was alleged in the plaint that the room in dispute was let out for residential purpose to Badlu Singh the original tenant and that after his death defendants became tenants who thereafter shifted their residence to their own house and sublet the room in dispute to Deep Chand and Tulsi who were using the same for tying and keeping cows and buffaloes for dairy purpose which they were running. It was also alleged that due to this act of tying cattles the accommodation in dispute had been damaged. In this manner eviction was sought on the ground of damage to the building, subletting and inconsistent user as provided under section 20(2)(b), (d) and (e) of U.P. Act No. 13 of 1972.

The trial court found that even though Deep Chand and Tulsi were sons of Badlu Singh the original tenant however as they were not residing along with their father at the time of his death hence they did not inherit the tenancy. The trial court therefore found that the suit was not bad for want of notice of termination of tenancy to Deep Chand and Tulsi. The trial court further held that even though they did not inherit the tenancy however it could not be said that Deep Chand and Tulsi were subtenants. However the trial court decreed the suit on the ground of damage to the building and inconsistent user. The trial court decreed the suit for eviction through judgment and decree dated 10.1.1986. Admittedly at the time of filing of the suit rent for less than one month was due (i.e 36 Naya Paisa). Trial court/ JSCC Meerut through judgment and decree dated 10.1.1986 decreed the suit for recovery of the said amount along with mesne profit and future damages at the rate of Rs. 2/- per month.

Against judgment and decree passed by the trial court contesting respondents filed SCC Revision No. 58 of 1986. The revision was allowed on 18.12.1986 by II Additional District Judge, Meerut. The revisional court set-aside the judgment and decree of the trial court and dismissed the suit. This writ petition by the landlord is directed against the said revisional court's order.

As far as the issue of damage to the building is concerned, in my opinion revisional court rightly reversed the finding of the trial court on this issue. It was alleged by the plaintiff and accepted by the trial court that due to use of the premises in dispute for keeping cows and buffaloes and due to their cow dung building got damaged. Even if the allegation of the landlord is taken to be correct still it will not be covered by section 20(2)(b) of the Act. According to the said provision, damage must be caused to the building by the tenant directly. The damage if any to the building due to its use is not covered by the said provision. The said provision uses the words willfully caused or permitted to be caused substantial damage to the building. Even otherwise no specific damage to the building was averred or proved. The allegation as well as evidence adduced on behalf of plaintiff was of very general nature.

The revisional court held that Deep Chand and Tulsi inherited the tenancy after death of Badlu Singh. It was necessary to give notice to them also and that in the absence of such notice suit was bad. In this regard revisional court clearly committed an error of law. As held by the Supreme Court in Harish Tandon Versus A.D.M, AIR 1995 SC 676 after the death of tenant his heirs inherit the tenancy jointly. In case of joint tenants notice to one joint tenant is sufficient. Similarly suit is also not bad if some of the joint tenants are made parties, one joint tenant acts on behalf of all other joint tenants hence notice to one is sufficient and decree of eviction passed against one or some of the joint tenants is binding upon all other joint tenants.

The main question to be decided in this writ petition is as to whether tenants are liable to ejectment on the ground of inconsistent user. Trial court held that the room in dispute was let out to Badlu only for residential purpose and it was inconceivable that he would be tying cattles in the room along with his residence. This observation has rightly been reversed by the revisional court. The revisional court has held that it is not uncommon in India that due to poverty people live in one room and keep their pet animals also. However it was not denied by the tenants rather it was admitted that they had constructed residential house and they were residing therein. It was also not denied rather admitted that the room in dispute was thereafter being exclusively used for tying cattles. The allegation of the landlord was that Deep Chand and Tulsi were running a dairy and keeping cows and buffaloes in connection therewith and further they were tying buffaloes and cows in the house in dispute.

In order to determine the user of the accommodation, dominant purpose will have to be kept in mind. If along with residence the tenant keeps the cattles also it can not be said that he has changed the user of the building from residential to non residential. The Supreme Court in AIR 2001 SC 1684 Atul Castings Limited Vs. B.G. Singh has held that using a small portion of the residential house for attending office files does not change the nature of the building from residential to non-residential. If a trader occasionally stores some of his merchandise in his residential house in which he is tenant but does not transact any business there from then it can not be said that he is using the residential house for business purposes as he is using a part of house as godown. However if such a businessman completely shifts his residence to another house and starts using the tenanted house only for storing goods then certainly it will amount to inconsistent user, as he will be using the residential house for the purposes of a godown.

In the instant case also initially the provision of inconsistent user provided under section 20 (2)(d) of the Act was not attracted. The tenant resided in the accommodation in dispute and also used the same for tying cattles. However after complete shifting of the residence from the said room and exclusive use of the said room for tying cattles the said provision became attracted. I am therefore of the opinion that tenants are using the accommodation in dispute for inconsistent purpose as they have completely shifted their residence from the accommodation in dispute which was let out for residential purpose and are using the same exclusively for tying cattles. The suit for eviction is therefore liable to be decreed on the ground of inconsistent user.

Judgment of the trial court is therefore maintained only on the ground on inconsistent user.

Writ petition is therefore allowed. Judgment and order passed by the revisional court is set-aside. Judgment and decree passed by the trial court is restored.

Tenants are granted six months time to vacate provided that

(1) Within one month from today they file an undertaking before the JSCC to the effect that on or before the expiry of period of six months they will willingly vacate and handover possession of the property in dispute to the landlord-petitioners.

(2) Within one month from today entire arrears of rent due till date are deposited by tenant-respondents before the JSCC for immediate payment to landlord.

(3) For this period of six months which has been granted to the tenants to vacate they are required to pay Rs.3000/- (at the rate of Rs.500/- per month) as damages for use and occupation.  This amount shall also be deposited within one month before the JSCC and shall immediately be paid to the landlord.

It is further directed that in case undertaking is not filed within one month or entire decreetal amount is not deposited or Rs. 3000/- are not deposited as aforesaid then tenant petitioners shall be liable to pay damages at the rate of Rs.2000/- per month since after one month till the date of actual vacation.

Similarly if after filing the aforesaid undertaking and the amount  the house in dispute is not vacated on the expiry of six months then damages for use and occupation shall be payable at the rate of Rs.2000/- per month since after six months till actual vacation.

Waqar

Dated:24.11.2005


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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