Decided on July 29,2013

Jai Jai Ram And Ors Appellant
Additional District Judge/F T C And Ors Respondents


- (1.) By means of this writ petition, the petitioners has sought a writ in the nature of certiorari quashing the impugned judgment and order dated 26.07.2001 passed by Additional District Judge/Ist F.T.C. Haldwani as well as the judgement and order dated 17.4.2000 passed by Judge Small Causes Court/Additional C.J.M., Nainital. Brief facts of the case, giving rise to this writ petition are, that petitioners are landlords of the shop in dispute.
(2.) They filed a suit bearing no.19 of 1996 for eviction and recovery of arrears of rent in the court of Small Causes Court against the respondent no.3. Before filing the suit, the petitioners served a notice u/s 106 of Transfer of Property Act terminating the tenancy of respondent no.3 and requesting him to handover possession of the shop in dispute after expiry of 30 days. Respondent no.3 contested the suit by filing written statement wherein he alleged that he is tenant in the shop in dispute since 1.10.1994 and prior to 1994 there was a Limeklin and a tin shade shop at the site where the disputed shop has been constructed and that he and his ancestors were the tenants for last 85 years. He further alleged that the petitioners wanted to dispossess him from site forcefully in 1994 therefore he had filed an injunction civil suit bearing no.105 of 1994 against the petitioners in which a compromise took place between respondent no.3 and the petitioners and on the basis of that compromise it was agreed between the parties that petitioners will give one newly constructed shop to respondent no.3 on the yearly rent of Rs.360/-. Thus, respondent no.3 is the tenant in the disputed shop which was newly constructed since 01.10.1994. On the basis of pleadings, learned Judge SCC framed following points for determination in the suit:- i) Whether respondent no.3/defendant is tenant of the petitioners for last 70-80 years @ Rs.360/- per annum as alleged by respondent no.3/defendant or is tenant @ Rs.500/- per month ii) Whether there is any amount of rent as arrears against respondent no.3/defendant iii) Whether the notice served by the petitioners/plaintiffs upon respondent no.3 is lawful and to what relief the petitioners/plaintiffs are entitled for In support of his case, petitioners/plaintiffs got examined P.W.1 Mahendra Prakash Singhal, P.W.2 Jai Jai Ram.
(3.) On point no.1, learned Judge S.C.C. held that the shop in dispute is newly constructed shop in the year 1994 as such the provisions of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 do not apply to the shop in dispute. On point no.2, learned Judge S.C.C. held that there is no evidence produced by respondent no.3 to prove the payment of rent @ Rs.360/- per annum. It has been further held by the learned Judge that the disputed shop has been constructed over the land on which there was no previous construction of any shop rather the disputed shop has been constructed over a vacant piece of land. So far as the compromise, which alleged to have been taken place between respondent no.3 and the petitioners in civil suit no.105 of 1994, the learned Judge S.C.C. has observed that the said compromise does not bear the signatures of all the petitioners. Only thumb impression of Mahendra Prakash Singhal is shown to have been affixed on the compromise.;

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