From a bare perusal of the definition of “building” in Section 3(i) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 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 out houses, 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 the Hon’ble Supreme Court in Ashok Kapil v. Sana Ullah, (1996) 6 SCC 342 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. The “building” as defined in Section 3(i) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, 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 enjoyment shall be a building within the meaning of Section 3(i) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. Munnu Yadavi v. Ram Kumar Yadav, 2020 (138) ALR 70.
Tag Archives: Rent Control
Possession may be lawful, it may be unlawful. It may be legal or illegal. The acquisition of legal possession would obviously be lawful and would of necessity involve the occurrence of some event recognized by law whereby the subject matter falls under the control of the possessor. But a problem arises where the duration for which possession is recognized is limited by the grantor or the law. Continuance of possession beyond the period specified by the grantor or recognized by law is not treated as a lawful possession. For example, a tenant acquires legal as well as lawful possession of the tenanted premises from the landlord with the express consent of the landlord but limited to the duration of the lease. On expiry of the leaser, if the landlord does not consent to the lease being continued, the possession of such tenant would not be a lawful possession. The nature of possession being not lawful would entitle the landlord to regain possession.
From a common sense point of view, lawful possession must be the state of being a possessor in the eyes of law. The possession must be warranted or authorized by law; having the qualifications prescribed by law and not contrary to nor forbidden by law. Sawwad Ali v. Rajesh Kumar, 2019 (135) ALR 927.
As regards the relevance of the issue of title of the landlord in an eviction suit under rent laws it is fairly well settled that the impleadment of co-owner/co-sharer to the proceedings is not essential as eviction proceedings can normally be decided on merits in absence of such co-owner/co-sharer. In an eviction suit filed by the landlord, only landlord and tenant are necessary parties and in view thereof title of landlord in an eviction suit is not relevant. If the landlord fails to prove his title but proves relationship of landlord and tenant, and proves existence of any ground pleaded for eviction then his suit would succeed. On the other hand, if the landlord proves his title but fails to prove relationship of landlord and tenant, then his suit would fail. Shahnaj Begum v. Taj Mohammad, 2019 (134) ALR 800.
In Sarup Singh Gupta v. S. Jagdish Singh, (2006) 4 SCC 205, it was held as under:
“In the instant case, two notices to quit were given on 10th February, 1979 and 17th March, 1979. The suit was filed on June 2, 1979. The tenant offered and the landlord accepted the rent for the months of April, May and thereafter. The question is whether this by itself constitutes an act on the part of the landlord showing an intention to treat the lease as subsisting. Mere acceptance of rent did not by itself constitute an act of the nature envisaged by Section 113, Transfer of Property Act showing an intention to treat the lease as subsisting. The fact remains that even after accepting the rent tendered, the landlord did file a suit for eviction, and even while prosecuting the suit accepted rent which was being paid to him by the tenant. It cannot therefore, be said that by accepting rent, he intended to waive the notice to quit and to treat the lease as subsisting. We cannot ignore the fact that in any event, even if rent was neither tendered nor accepted, the landlord in the event of success would be entitled to the payment of the arrears of rent. To avoid any controversy, in the event of termination of lease the practice followed by courts is to permit the landlord to receive each month by way of compensation for the use and occupation of the premises, an amount equal to the monthly rent payable by the tenant. It cannot, therefore, be said that mere acceptance of rent amounts to waiver of notice to quit unless there be any other evidence to prove or establish that the landlord so intended.”
In the Judgment rendered by Orissa High Court in Bhagabat Patnaik v. Madhusudan Panda, AIR 1965 Ori 11, Section 113 has been interpreted to hold that since a valid notice to quit a lease or to determine a tenancy cannot be waived without the assent of the landlord and the tenant both, the question as to whether such facts and circumstances of the case. An English Authority in Lawenthanfal v. Banhoute, 1947 (1) ALL ER 116, was quoted to say that a new tenancy cannot be inferred on the issuance of second notice. It is in this context that it was observed that a “subsequent notice to quit is of no effect.” It was held that a tenancy is not revived by anything short of a new tenancy and in order to create a new tenancy there must be an express or implied agreement to that effect.
The mere fact that the tenant continues in possession and rent is accepted and the suit is not instituted are insufficient circumstances for inferring an intention to create a new tenancy after expiration of the first. It was further held thus:
“Generally speaking, giving a second notice to quit does not amount to a waiver of a notice previously given unless, with other circumstances, it is the basis for inferring an intention to create a new tenancy after expiration of the first.” Praveen Kumar Jain v. Jagdish Prasad Gupta, 2019 (132) ALR 357.
Perusal of Section 3 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 would go to show that family in relation to landlord or tenant of a building would include: (1) spouse, (2) male lineal descendants, (3) such parents, grandparents, unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant as may have been residing with the landlord. The definition further says “family” includes in relation to landlord, any female having a legal right of residence in that building.
The inclusive part of the definition, which is enacted only for the benefit of “female” in relation to the landlord, adds one or more category of person in addition to those specified in clauses (i) to (iii), namely, “any female having a legal right of residence in that building”.
A fortiori, any female, if she is having a legal right of residence in the building, is also included in the definition of “family” in relation to landlord regardless of the fact whether she is married or not. In other words, in order to claim the benefit of the expression “family”, a female must have a “legal right of residence” in the building. Such female would then be entitled to seek eviction of the tenant from such building for her need. Gulshera Khanam v. Aftab Ahmad, (2016) 9 SCC 414.
It is well established that findings on twin issues of bona fide need and comparative hardship are findings of fact. Equally well settled is the proposition that High Court in exercise of it’s jurisdiction under Article 226 of the Constitution of India does not interfere with the findings of fact unless it is demonstrated that the same is vitiated by manifest error of law or is patently perverse or based on non consideration or misreading of any material piece of evidence.
No doubt whenever a decree of eviction is passed against a tenant he shall suffer hardship but the same by itself cannot constitute hardship of greater degree so as to refuse the landlord a decree for eviction. The owner of a property cannot be denied eviction and compelled to live poorly and without a decent livelihood merely to enable the tenant to carry on his flourishing business activity. Shrawan Kumar and Another v. Rajat Verma, 2013 (5) AWC 4771.