Dilip Gupta, J. - (1.) THIS petition seeks the quashing of the judgment dated 30th July, 1996 of the Judge, Court of Small Cause, Gorakhpur by which the suit filed by the petitioner for eviction of the defendant was dismissed. The petitioner has also sought the quashing of the judgment dated 7th September, 2009 by which the Revision filed by the petitioner for setting aside the aforesaid judgment was dismissed.
(2.) THE petitioner had filed SCC Suit No.50 of 1992 before the Court of Small Cause, Gorakhpur with the allegation that the defendant Ram Adharey, earlier owner of the disputed house, had executed an agreement to sell on 23rd October, 1972 in favour of the petitioner with the condition that possession of the house will be given at the time of execution of the sale deed but as the defendant did not execute the sale deed despite service of notices, the petitioner filed Original Suit No.881 of 1978 for specific performance which was decreed on 2nd May, 1979 and the defendant was ordered to execute the sale deed after receipt of the balance amount otherwise, the plaintiff would have a right to execute the sale deed through the Court. The sale deed was not executed and so the petitioner filed Execution Case No.5 of 1981 in which directions were issued for execution of the sale deed. The sale deed was subsequently executed on 9th February, 1982 and registered on 21st March, 1987. The petitioner, therefore, became the owner of the disputed house and asked the defendant to vacate the house and give possession but oral request was made by the defendant to permit him to live in the house as a tenant on payment of rent of Rs.200/ -per month. The defendant has been occupying the house as a tenant from 19th 2 February, 1982 but has not paid any rent. The SCC Suit was, accordingly, filed by the petitioner in 1992 for a decree of eviction and payment of Rs.18,634/ - as arrears of rent along with house tax and water tax. The Judge, Court of Small Cause dismissed the suit on 30th July, 1996. It was noticed that the sale deed was executed through the Court and it indicates that on the date of execution of the sale deed, possession had not been given to the plaintiff. The version of the plaintiff that he had permitted the defendant to live as a tenant on monthly rent of Rs.200/ -was not believed for the reason that though the suit for specific performance had been decreed but the defendant had not given possession to the plaintiff and execution case was also filed whereafter the sale deed was executed. However, as possession was still not given, it was not possible to believe the case of the plaintiff that the defendant had been permitted to reside in the house on the basis of oral tenancy. The Court also noticed that the case of the plaintiff was that the defendant was residing as a tenant from 1982 but the suit was filed only in 1992 though even according to the plaintiff, rent was never paid to him during this period. In such circumstances, when the sale deed had been executed through the Court after long litigation, the plaintiff would not permit the tenant to reside in the house for 9 years without taking any appropriate steps and even otherwise, after coming into force of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the 'Act'), the tenant could not have been inducted as a tenant without any allotment order. The Court also observed that since the plaintiff failed to get possession, he adopted this method of filing the suit by treating the defendant as his tenant. The Revisional Court has also not accepted the version of the plaintiff.
(3.) LEARNED counsel for the petitioner submitted that the Courts below were not justified in holding that the respondent could have been inducted as a tenant only by way of allotment order under the provisions of the Act and even otherwise when the defendant had not placed his version, the case set up by the plaintiff should have been accepted.;