M.L.BHAT,J. - (1.) THIS second appeal is filed by the plaintiffs against the judgment and decree of IX Additional District Judge, Allahabad dated 16.8.1987. By the impugned judgment the first appellate Court while setting aside the judgment and decree of the Munsif dated 23.3.1984 dismissed the plaintiff's suit against the defendant for ejectment.
(2.) THE following are substantial questions of law on which this appeal is to be decided : (i) Whether the agreement dated 31.10.1978 being unregistered and against the provisions of Sections 11 and 13 of the Act was void and could be looked in evidence ? (ii) Whether the small Kothri with a huge open land could bring the entire tenanted portion under the definition of 'building' within the provisions of the U.P. Act No. 13 of 1972 ? For determination of the aforesaid questions it is necessary to deal briefly with the facts. The appellants filed a suit against the respondent-defendant alleging that the defendant was a tenant on monthly rent of Rs. 200/-. The property was let out for business purpose. However, there was no roofed structure in the property in dispute. A temporary structure measuring 10' x 6' was raised by the defendant in a small portion of the land in dispute without the permission of the appellants. It was contended that the provisions of the Rent Control Act 1972 did not apply to the property in dispute. The tenancy was terminated by a valid notice under Section 106 of the Transfer of Property Act dated 21.1.1983, which was served on the defendant on 4.2.1983. The respondent is said to have not vacated at the period of the expiry of the notice. The rent was also claimed from the respondent with effect from 1.11.1982. The amount of Rs. 821/- was also claimed from the defendant on account of arrears of rent. Pendente lite damage as also damages for future were also claimed from the defendant.
(3.) THE defendant seems to have contested the suit. He seems to have contended that the property in dispute originally belong to Sri Wajid Ali, grand father of plaintiff Nos. 1 and 2, who had raised construction on plot No. 72/82, which was given a separate municipal number 132 and splitted into two numbers 204 and 205. According to the defendant he was a tenant of the entire premises covered by plot No. 204 but a portion of it was allowed to be occupied by the plaintiffs and the defendant retained a northern part of plot No. 104 and an agreement dated 31.10.1978 between the parties was also executed. The said Wajid Ali is said to have created a Waqf Alal Aulad of the property. Plaintiff 1 is said to be Mutwalli and Landlord of the defendant. Plaintiff Nos. 2 and 3 not the landlords. However, plaintiff No. 2 joined the agreement dated 31.10.1978. It is stated that the building with land was let out. Therefore, the suit was covered by the Rent Control Act of 1972. The agreement dated 31.10.1978 was relied upon. In the said agreement the intention of the parties, it is stated was that the defendant would not be ejected from the tenement unless he rendered himself liable to ejectment on any of the grounds specified in Section 20 of the U.P. Act No. 13 of 1972. Whether or not the U.P. Act No. 13 of 1972 would apply to the suit but the defendant could be ejected only on the grounds similar or analogous to the grounds contained to Section 20 of the U.P. Act No. 13 of 1972. The landlord mentioned in the agreement was treated as attached to the building for the beneficial enjoyment of the building, which was let out to the defendant. It was further contended that the property being waqf property the plaintiffs had no right to sue and maintain the suit. Arrears of rent had accumulated because of wrong refusal of the money order by the plaintiff No. 1. The trial Court framed certain issues in the suit. Issue No. 1 related to the plaintiffs' title as landlord over the suit, property. Issue No. 2 related to the application of the W.P. Act No. 13 of the 1972 to the suit. Issue No. 3 was about the plaintiff having no right to sue. Issue No. 4 related to the validity of the notice.;