- (1.) UMESHWAR Pandey, J. This appeal arises out of the judgment and decree dated 30-7-2005 passed by the lower appellate Court dismissing the first appeal of the appellant and affirming the judgment and decree passed by the trial Court.
(2.) THE respondent-plaintiff filed a suit for eviction of the appellant-defendant from the premises in question alongwith a prayer for recovery of arrears of rent and damages. A piece of land in dispute sought to have been given to the defendants- appellants by Late Smt. Hero Devi and one Sita Ram on monthly rent regarding which a lease-deed was executed. That piece of land was subsequently transferred by Smt. Hero Devi and others in plaintiff's favour through registered sale-deed dated 24-1- 1980. An intimation of this transfer of the disputed property was given by the vendees plaintiffs to the defendants and instructed them to pay the rent to them instead of Smt. Hero Devi and others. No heed on this request of the plaintiff was given by the defendants. A notice under Section 106 Transfer of Property Act was given by the plaintiffs to the defendant but still the premises was not vacated nor the arrears of rent were paid. Consequently a suit for eviction on the small causes side of the Court was instituted by the plaintiffs but that suit was held to be not cognizable by the Court on small causes and the plaint was returned for proper presentation before a regular Court. As a result this suit was presented before the regular Court. THE validity of the notice was challenged in the written statement and it was also disputed by the defendants that they were in arrears of payment of rent. THEy also alleged that since the defendant had put in tin shade in the suit land the Provisions of U. P. Urban Building (Regulation of Letting Rent and Eviction) Act, 1972 are applicable to the suit property and the suit as such is cognizable by the Court of Judge Small Causes. THE defendants also took the plea that only an area of 64 square yard was transferred by Smt. Hero Devi to the plaintiffs and, therefore, this suit for eviction from other 100 square yard of land could not be legally decreed. On the aforesaid pleadings of the parties the trial Court framed as many as 13 issues in this case and gave its findings. In the findings recorded, the contentions of the plaint were found to have been proved by the plaintiff and it was held that the notice under Section 106 of Transfer of Property Act given by the plaintiff to the defendants was wholly valid and the provisions of the aforesaid U. P. Act No. 13 of 1972 are not applicable. Since the property let out is only an open land without any construction on it the suit would lie before regular civil Court. The Court also found that the suit relates only to an area of 64 square yard of land which had actually been transferred by Smt. Hero Devi the original owner and others in plaintiff's favour and, therefore, the decree would be passed only with regard to that extent and nothing beyond it. Accordingly, finding merits in the suit, the trial Court decreed it and eviction order was passed. The decree for arrears of rent and damages was also awarded. The aforesaid decree of the trial Court was a subject of challenge before the Court below in first appeal and the lower appellate Court while concurring with the findings recorded by the trial Court has found that the suit for eviction and recovery of arrears of rent was rightly decreed. The findings and the conclusions recorded by the trial Court were affirmed and the appeal of the defendant has been dismissed.
(3.) I have heard the learned Counsel for the parties and gone through the entire material available on record. The learned Counsel for the appellants while placing his submissions in this second appeal emphasized that the Court below has wrongly held the property in question out of the purview and application of the Provisions of U. P. Act No. 13 of 1972 and the findings so recorded are legally erroneous. It is also submitted by the learned Counsel that since the notice sent under Section 106 Transfer of Property Act refers to certain arrears of rent alleged to be due to the plaintiff against the defendant, the notice is illegal because from the record it is found that all the rent stood deposited or paid in the Court and both the Courts have not taken into consideration this aspect of the matter, thus, committing substantial legal error in recording their findings. In the third place the Counsel for the appellant has submitted that the suit as a whole should not have been decreed because only 64 square yard of land out of 100 square yard of tenanted area is shown to have been transferred by Smt. Hero Devi and others in favour of the plaintiffs and there could be no decree for the entire area of the tenament.;