- (1.) A. B. Srivastava, J. This is a tenant's petition against judgment and decree of the J. S. C. C. directing his ejectment and the revisional order of the Additional District Judge confirming the same.
(2.) THE respondent-landlord filed the ejectment suit on the plea that the shop in question along with other adjoining shops was constructed in the year 1985 and its first assessment was also made in the same year, hence Act 13 of 1972 is not applicable. THE petitioner is also in arrears of rent. THE tenancy has been determined by a notice under Section 106, T. P. Act which was refused. The petitioner contested on the plea that Hansraj the father of the respondent is his landlord, the shop in question was constructed more than 10 years before filing of the suit and was assessed in 1979- 80. He is not in arrears and that he has deposited the amount of rent, interest cost etc. under Section 20 (4) and is entitled to be relieved of ejectment. The J. S. C. C. held the house to be a 1985 construction, the notice to be duly served and tenancy determined. He also found the petitioner to be in arrears and the respondent to be his landlord and decreed the suit which was affirmed in revision.
(3.) HAVING heard the learned counsel for the petitioner, this revision is found to be without merit. The finding of the J. S. C. C. on the question of relationship of landlord and tenant, service of notice to quit, period of con struction and arrears of rent is based on proper appraisal of the evidence on record. The assessment record of 1979-80 relied on by the petitioner does not appear to relate to the premises in question, whereas the assessment record of 1985-86 filed by the respondent relates to this premises. In the absence by any oral evidence or document to show that this building was assessed prior to 1985, or constructed before 10 years computed from the date of institu tion of suit, within the meaning of Explanation I to Section 2 (2) of Act 13 of 1972 it was rightly held that 10 years of the construction of this building had not completed, and it was exempt from Act 13 of 1972 of the date of suit. The plea that benefit of Section 114 of the T. P. Act should have been allowed to the petitioner is also untenable firstly because there is nothing to show that the forfeiture was on account of non-payment of rent. Even the copy of notice has not been filed. From the tenor of the pleadings it is borne out that it was a case of termination simpliciter. Secondly no such equitable relief under Section 114, T. P. Act was claimed before the trial court or the revisional court. The writ petition not being a continuation of the suit it cannot be allowed to be raised here for the first time. No benefit can thus be given to the petitioner of the principles laid down in Surjeet Singh v. Additional District Judge, Haridwar and another, reported in 1993 (2) ACJ 1045. In Praduma Kumar v. Virendra Gael reported in 1969 (3) SCR 950 the Supreme Court was considering a case where benefit of Section 114 of the Transfer of Property Act was claimed for the first time in appeal and was allowed. The appeal being the continuation of suit, grant of the equitable relief to the tenant was held to be permissible.;