S.U.Khan, J. - (1.) THIS writ petition was initially connected with four other writ petitions as landlord in all the writ petitions was same and almost simultaneously landlord had filed suits for eviction against all the five tenants -petitioners. However, at the time of final hearing it was found that this writ petition involved some distinct points which were not involved in the other four writ petitions hence it was separated there from. The other four writ petitions being Writ Petition Nos. 18478 to 18481 of 1985 have been decided/allowed on 28.3.2006. This is tenant's writ petition arising out of suit for eviction on the ground of default and for recovery of arrears of rent filed by original landlord -respondent No. 3 Mehboob Ali since deceased and survived by legal representatives. Petitioner has also died and has been substituted by his legal representatives. The suit was registered as SCC Suit No. 27 of 1981 on the file of JSCC, Bijnor. The suit was decreed on 17.8.1982. Revision filed against the said judgment and decree being Civil Revision No. 268 of 1982 was dismissed on 18.10.1985 by I Additional District Judge, Bijnor hence this writ petition. Original plaintiff pleaded that property belonged to Waqf Atul Aulad, which was registered with the Waqf Board, and its previous Mutwalli was Abdul Hafiz Khan, however, through judgment and decree dated 8.8.1973 passed in OS. No. 238 of 1970 he was removed from the Mutwalliship and Mehboob Ali Khan - -plaintiff was appointed at Mutwalli. There is no allegation of the plaintiff that till October, 1979 any information of decree of 1973 was given to the tenant in writing. Plaintiff only alleged that he orally intimated the tenant about the same. This theory of oral intimation has not been accepted by the Courts below. In any case no tenant is supposed to switch over his landlord on some oral information by alleged subsequent landlord. Plaintiff intimated about the change of mutwalliship through notice dated 26.10.1979. Thereafter notice of termination of tenancy and demand of rent was given on 17.2.1981. In the plaint it was stated that defendant was tenant at the rate of Rs. 8/ - per month since the time of previous mutawalli. The defendant in the written statement pleaded that the rate of rent was Rs. 2/ - per month. He denied receipt of notices of 1979 and 1981 in the written statement. However, in the oral statement he admitted receipt of the said notices. In the written statement it was also stated that in an earlier suit being suit No. 425 of 1963 it was asserted by the pervious landlord that rate of rent was Rs. 2/ - per month. Defendant also stated in para 9 of written statement that in order to avail the benefit of section 20(4) of U.P. Act No. 13 of 1972 he had deposited Rs. 356.50 which included rent from 8.8.1973 till 7.8.1981 at the rate of Rs. 2/ - per month (total Rs. 192/ -) and cost of the suit and interest at the rate of 9%. Written statement was filed on 14.8.1981.
(2.) PLAINTIFF filed replica on 22.7.1982 adding paragraphs 5 -A and 5 -B to the plaint. In the said paragraphs it was stated that defendant agreed to pay rent at the rate of Rs. 8/ - per month with the plaintiff himself. Original plaintiff in his oral statement stated that defendant had written the agreement in his presence. (He had filed an agreement, which was marked as Exhibit -11 bearing the date of 16.5.1975). In his oral statement original plaintiff stated that even though he had intimated his counsel at the time of giving notice and filing suit about agreement/rent deed however he did not ask his counsel to mention the said fact in the plaint. Even in the replica no such fact was mentioned. The Court below on the basis of the said agreement dated 16.5.1975 held that rate of rent was Rs. 8/ - per month. It appears that in the said agreement it was mentioned that since 1970 rent had been enhanced to Rs. 8/ - per month. Defendant out rightly denied execution of any such agreement. Copy of the said agreement was not filed alongwith writ petition or counter affidavit hence on 23.1.2006 I directed that copy of the said agreement shall be filed alongwith supplementary affidavit. An enquiry (question/answer) was filed showing that the relevant file had been weeded out. The learned Counsel stated that as file of the Trial Court had been weeded out and as copy of the said agreement was not available with any of the parties hence it could not be filed. It is not clear as to whether by the said alleged agreement a new tenancy was created or merely enhancement of rent from Rs. 2/ - to Rs. 8/ - per month in the year 1970 i.e. 5 years' before execution of agreement was acknowledged by the tenant. In any case this was such a fact that it ought to have been pleaded in the plaint and in the absence of pleading plaintiff must not have been permitted to lead evidence in that regard. Courts below held that agreement of 1975 was in -fact executed by the defendant. However, as there was no pleading in that regard hence plaintiff could not be permitted to adduce the evidence to prove the same. Apart from the said agreement there is no evidence in respect of rate of rent being Rs. 8/ - per month. Admittedly old rate of rent was Rs. 2/ - per month.
(3.) ACCORDINGLY , findings of the Courts below that rate of rent was enhanced from Rs. 2/ - to Rs. 8/ - are erroneous in law as they are based upon inadmissible evidence.;