Hon'ble Rajes Kumar, J - (1.) IN the present revision the revisionist is challenging the order dated 10.2.2011 passed by the Additional District Judge/Special Judge (E.C. Act), Agra in S.C.C. Case No. 25 of 2000 whereby the suit of the plaintiff has been decreed and the defendant-revisionist has been directed to evict the premises in dispute and pay rent from 1st March, 2000 @ Rs. 3,320/- per month.
(2.) THE plaintiff-respondent filed a suit for eviction against respondent No. 2 and the revisionist, who was defendant No. 2, in the suit. The brief facts of the case are that plaintiff has let out a newly constructed pukka tin shed in a portion of the compound premises No. 20/82, Jamuna Kinara Chhatta Ward, Agra to defendant No. 1 Shri Ram Niwas Gupta on a rent of Rs. 1400/- per month. The measurement of the area was 37' 8" x 32' 10". The liability ' to pay the tax was on defendant No. 1. The plaintiff and the defendants have entered into an agreement on 20.1.1984 in this regard. On the request of defendant No. 1, the plaintiff allowed defendant No. 2, who is revisionist in the present case, to carry on the business alongwith defendant No. 1. In the year 1991, another tin shed was constructed measuring 32' 10" x 19' 2" which has also been let out and the rent has been enhanced from Rs. 1400/-to Rs. 3,320/- per month. The other condition of the agreement dated 20.1.1984 remained same. It appears that on a vacant land measuring an area of 1500 Sq. ft. a tin shed was constructed has also been used by the defendants. The case of the plaintiff was that the defendants had taken the possession of the said land unauthorizedly. The suit was filed on the allegation that since 1 st of March, 2000, the rent, and since 1985 the tax has also not been paid. The suit was filed for the eviction from the premises and also arrears of rent @ Rs. 3,320/- per month in respect of 1500 Sq. ft. land illegally occupied by the defendants. The notice in this regard was given by the plaintiff to the defendants. The defendant No. 1 has not filed any written statement. The revisionist-defendant No. 2 filed the written statement and contested the suit. The revisionist-defendant No. 2 contended that there was no co-tenancy with defendant No. 1 and defendant No. 2 was tenant right from the very beginning on the rent of Rs. 225/- per month and with the permission of the plaintiff the construction was made. It was contended that he was the tenant of the premises prior to 1984 and the entire rent has been paid upto 30th April, 2000 but no receipt was issued. Therefore, the rent w.e.f. 1.3.2000 was sent by money orders and when the plaintiff refused to receive the rent, the rent from 1.3.2000 has been deposited in the Court. The defendant No. 2 contended that defendant No. 1 was never tenant of the premises in dispute and the agreement dated 20.1.1984 has been fabricated with the collusion of defendant No. 1.
(3.) IN the suit, the plaintiff, Sri Nirmal Kumar Patni's statement was recorded. During the pendency of the suit, he died and his wife Smt. Kaushal Kumari Patni has been substituted as a plaintiff by virtue of Will deed. Issues have been framed and the witnesses have been examined. The Court below has decided issue Nos. 1, 2, 3 and 4 together. The Court below on the basis of the evidence on record has held that the plaintiff has let out a newly constructed tin shed in a portion of the compound premises No. 20/82, Jamuna Kinara Chhatta Ward, Agra to defendant No. 1 on a rent of Rs. 1400/- per month. The defendant had to pay the tax also apart from the rent. An agreement was executed on 20.1.1984 in this regard. The defendant No. 1 has included defendant No. 2 in his business with the permission of the plaintiff. IN the year 1991, a new tin shed had been constructed, which has also been let out and the rent has been enhanced from Rs. 1400/- to Rs. 3,320/ - per month. The Court below has not accepted the plea that 1500 Sq. ft. land has been illegally occupied by the defendants. On the basis of the evidence on record, it has been held that in the year 1991 itself the tin shed had been given on rent after the construction of tin shed and at that time 1500 Sq. fit. land had also been given. Accordingly, the Court below has held that the plaintiff is not entitled for the rent of Rs. 3/- per Sq. feet per month towards damages for illegal occupation of 1500 Sq. ft. land. The Court below held that the rent was more than Rs. 2000/- per month and the construction was new therefore the provisions of Act No. 13 of 1972 are not applicable and accordingly the suit for ejectment and arrears of rent has been decreed by the Court below. Heard Sri Pankaj Agrawal, learned counsel for the revisionist and Sri A.K. Gupta, learned counsel appearing on behalf of the respondents.;