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P.L. Kureel Talib Mankab, Vidhan Parishad Vs. Beni Prasad and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 195 of 1971
Judge
Reported inAIR1976All362
ActsUttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 7(B); Transfer of Property Act - Sections 105; Evidence Act, 1872 - Sections 101 to 104
AppellantP.L. Kureel Talib Mankab, Vidhan Parishad
RespondentBeni Prasad and anr.
Appellant AdvocateJ.B. Srivastava, Adv.
Respondent AdvocateSudhir Shanker, Adv.
DispositionAppeal dismissed
Excerpt:
.....and tenant. (ii) onus of proof - sections 101 to 104 of evidence act, 1872 - landlord pleaded that monthly rent payable by tenant is rs. 125 per month - tenant pleaded that monthly rent is rs. 75 and rs. 50 per month is charged illegally as towards services provided - onus of proof lies on tenant. - - having found that the plaintiffs had failed to establish that the defendant was occupying the flat in question on a rent of rs. a lease of immoveable property is a transfer of a right to enjoy such property, made for a certain tune, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts..........issued to the appellant he filed an objection contending inter alia, that he is a tenant at a monthly rental of rs. 75 and not rs. 125 and that he was being illegally charged a sum of rs. 50/ per month besides rent of rs. 75/-. the respondents then paid the requisite court-fee and got their application converted into a suit. the appellant then filed his written statement reiterating his aforesaid averment and giving details of the charges amounting to rs. 50/- which he alleged were being charged from him in an illegal manner. further, he alleged that the property tax claimed by the landlords was illegal, false, incorrect and not assessable under the law and that the plaintiff had also not paid that amount to the government, hence they were not entitled to the recovery thereof. 2. on.....
Judgment:

T.S. Misra, J.

1. The respondents who are the landlords of the premises in question filed an application under Section 7 (B) of U. P. (Temporary) Control of Rent and Eviction Act, III of 1947, hereinafter called the 'Act' on 9-8-1968 against the appellant who is a tenant of flat No. 91 in the said premises alleging that the appellant is a tenant at the rate of Rs. 125 per month and that a sum of Rs. 1500 being rent for the period 1-8-1967 to 31-7-1968 and Rs. 331.25 being the property tax for the period from October 1, 1965 to March 31, 1968 were outstanding against him. On a notice being issued to the appellant he filed an objection contending inter alia, that he is a tenant at a monthly rental of Rs. 75 and not Rs. 125 and that he was being illegally charged a sum of Rs. 50/ per month besides rent of Rs. 75/-. The respondents then paid the requisite court-fee and got their application converted into a suit. The appellant then filed his written statement reiterating his aforesaid averment and giving details of the charges amounting to Rs. 50/- which he alleged were being charged from him in an illegal manner. Further, he alleged that the property tax claimed by the landlords was illegal, false, incorrect and not assessable under the law and that the plaintiff had also not paid that amount to the Government, hence they were not entitled to the recovery thereof.

2. On these pleadings the trial court framed five issues in the following terms:--

1. Whether the rate of rent was Rs. 125/- per month?

2. Whether the property tax cannot be realised from defendant as alleged in para. 11 of written statement?

3. To what relief, if any, is the plaintiff entitled?

4. Whether the defendant was paying Rs. 50/- to the plaintiffs as alleged in paras 7 and 9 of written statement

5. Whether there was any agreed rent between the parties? If so, its effect?

No oral evidence was adduced either on behalf of the plaintiffs or on behalf ofof the Act which was marked Ex. 1. The trial court had also recorded the statement of the learned counsel appearing for the defendant under Order X, Rule 2 of the Code of Civil Procedure before framing issues. Having found that the plaintiffs had failed to establish that the defendant was occupying the flat in question on a rent of Rs. 125/- per month the trial court dismissed the suit.

3. Aggrieved by that decision the plaintiffs filed an appeal before the District Judge, Lucknow. It was heard and decided by the learned Civil Judge Malihabad at Lucknow. The lower appellate court having found that the rate of rent was Rs. 125/- per month and that the allegation of the defendant that Rs. 50/ were for service charges was incorrect reversed the finding of the trial court and decreed the suit for arrears of rent. It also granted a decree for Bhumi Bhawan Kar. The defendant has now come up to this Court on second appeal.

4. For the defendant-appellant it was urged that the appellate court below had wrongly placed the onus of proof on the appellant to establish that a sum of Rs. 50/- per month was charged towards service charges. The contention was that the plaintiffs had come with the allegation that the defendant was occupying the accommodation in question at a monthly rent of Rs. 125/- and as the defendant had denied that the rate of rent was Rs. 125/- per month it was for the plaintiffs to prove that the rate of rent was Rs. 125/- per month and not Rs. 75/- as alleged by the defendant. The learned counsel for the respondents in reply submitted that the defendant had in his objection filed under Section 7 (B) of U. P. Act III of 1947 as also in the written statement filed subsequently when the application was converted into a suit, admitted that the sum of Rs. 125/-was being charged every month and therefore, it was for the defendant to prove that the rent was really Rs. 75/- per month and not Rs. 125/- per month that was charged from him.

5. Before proceeding to examine the contentions raised on behalf of the parties it would be appropriate to refer to the relevant provisions of U. P. Act III of 1947 as also Section 105 of the Transfer of Property Act. Term 'rent' has not been defined in U. p. Act III of 1947. Section 2 (f) defines 'reasonable annual rent'. Section 5 of the Act provides that the rent payable for anyaccommodation to which the Act applies shall be such as may be agreed upon between the landlord and the tenant. Section 4 of that Act imposes a prohibition against taking any premium by providing that it shall not be lawful for a landlord to take or receive for admitting a tenant to any accommodation any premium or other additional payment of any sort whatsoever, over and above the rent payable therefor under the provision of this Act. Obviously the rent payable under the provisions of this Act would be the rent as may be agreed upon between the landlord and the tenant, or where the rent had not been agreed upon it would be the rent as may be determined under the provisions of Act III of 1947. Section 105 of the Transfer of Property Act reads:

'A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain tune, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.'

The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent.

As pointed out by the Supreme Court in Commr. of Income-tax v. Panbari Tea Co. : [1965]57ITR422(SC) Section 105 of the Transfer of Property Act brings out the distinction between a price paid for a transfer of a right to enjoy the property and the periodic payment of rent to the lessor. When the interest of the lessor is parted with for a price, the price paid is premium or 'salami'. But the periodical payments for the continuous enjoyment of the benefits under the lease are in the nature of rent. The former is a capital income and the latter a revenue receipt. The parties may camouflage the real nature of the transaction by using clever phraseology. There are cases where the so-called premium is in fact advance rent and in others rent is deferred price. It is the substance of the transaction and not the form that matters. The nomenclature may not be decisive or conclusive but it helps the Court, having regard to the other circumstances, to ascertain the real intention of the parties. The real test is whether the amount paidin a lump sum or in instalments is the consideration paid by the tenant for being let into possession. Section 105 of the T. P. Act thus brings out a distinction between the price paid to enjoy the property and the periodic payment to the lessor.

6. As pointed out earlier the term 'rent' has not been defined in U. P. Act III of 1947. Similarly the term 'rent' has not been defined in West Bengal Premises Rent Control (Temporary Provisions) Act (17 of 1950) the provisions of which came to be considered by the Supreme Court in Karnani Properties Ltd. v. Miss Augustine : [1957]1SCR20 . The Supreme Court observed thus:--

'The term 'rent' has not been defined in the Act. Hence it must be taken to have been used in its ordinary dictionary meaning. The term 'rent' is comprehensive enough, to include all payments agreed by the tenant to be paid to his landlord for the use and occupation not only of the building and its appurtenances but also of furnishings, electric installations and other amenities agreed between the parties to be provided by and at the cost of the landlord. Therefore all that is included in the term 'rent' is within the purview of the Act. ............''

The term 'rent' came to be construed in Property Holding Company Ltd. v. Clark, (1948-1 KB 630). In that case the agreement between the landlord and the tenant in writing provided for the payment of 110 a year as rent and an additional payment of 30 a year in respect of the additional amenities and conveniences like lighting and cooking equipments, furnishing and cleaning of the hall and staircase etc. In an action for rent by the landlord at the rate of 140 a year the tenant contended that the rent proper was only 110 and not the total sum of 140 a year payable on all counts as aforesaid. The court of appeal allowed the landlord's appeal and held that the standard rent was 140 and not only 110. In the course of judgment it was observed that the first of these (considerations) is that the word 'rent' in this exception surely means not rent in the strict sense but the total payment under the instrument of letting. The exception assumes that rent so called may include, for example, 'Board' payment of which is not rent. The court of appeal repelled the contention that the additional payment was not part of rent and held that the payment in respect of the additional amenities aforesaid was also part of rent within the meaning of English Act. It is thus an established proposition that rent included not only what is ordinarily described as 'rent' in an agreement between landlord and tenant but also payment in respect of special amenities provided by the landlord under the agreement between him and the tenant. In Someshwar Dayal Seth v. Shri Dwarkadhish Ji Maharaj : AIR1950All61 a learned single Judge of this Court held that municipal taxes agreed to be paid by the tenant were part of rent to be paid by the tenant to the landlord.

7. I shall now proceed to examine the case set up by the parties in the light of the principles stated above. The plaintiff-respondents pleaded that the defendant is a tenant on a monthly rent of Rs. 125. The defendant appellant has in his written statement stated that he is tenant on monthly rent of Rs. 75 and not Rs. 125 and that the plaintiffs have been charging Rs. 50 per month excessively and illegally from him besides a rent of Rs. 75 per month. The defendant has given the break up of the service charges which the plaintiffs had been realising from him every month. The services included maintenance and operation of lift, electricity, furnishing and cleaning water pump, salary to watchmen etc. It was thus admitted by the defendant that the plaintiffs used to realise from him a sum of Rs. 125/- per month. His case however, is that the rate of rent of Rs. 75/- per month, and Rs. 50/- were charged from him every month against service charges. Obviously, according to the defendant this amount of Rs. 50/-was not charged from him by way of premium but against additional amenities and conveniences like maintenance and operation of lift, electricity, furnishing and cleaning, water pump etc. The plaintiffs have been realising a sum of Rs. 50/- from the defendant but no action was taken by the defendant to have the rent fixed in accordance with the provisions of Section 5 of U. P. Act III of 1947. It is not the case of the defendant that he had not agreed to pay Rs. 50/-per month to the plaintiffs. His case is 'that the plaintiffs have been charging Rs. 50/- per month excessive and illegal' from him. It has not been shown how this charge of Rs. 50/- per month was 'illegal or excessive'. It was for him to establish that the sum of Rs. 50/- per month was charged illegally or excessively from him. In that, in my view, he has failed. Rent in the instant case would, therefore, include all payments agreed by the defendant to be paid to his landlords for the use and occupation not only of the building but also of furnishing, electric installation and other amenities. The irresistible conclusion, therefore, is that the defendant is a tenant of the accommodation in question at the rate of Rs. 125/- per month. There is, therefore, no force in the contention that the appellate court below had wrongly placed the onus of proof on the defendant, or that it had erred in holding that the rate of rent was Rs. 125/- per month.

8. Another ground on which the decree passed by the appellate court below is impugned is that the court below had erred in holding that the plaintiffs were entitled to recover Bhumi Bhawan Kar despite the fact that there was no evidence to that effect. Though this ground was taken in the memo of appeal no arguments were advanced before me with regard to it. It may, however, be observed that the liability to pay Bhumi Bhawan Kar was statutory liability and the court below was justified in passing a decree against him.

9. No other point was pressed.

10. In the result, the appeal fails and is dismissed with costs.


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