PRAKASH KRISHNA,J. - (1.) This is plaintiff's revision under Section 25 of Provincial Small Cause Courts Act against the judgment and decree dated 12-9- 1997 passed by Judge Small Cause Court (Special Judge), Muzaffarnagar in SCC Suit No. 62 of 1989.
(2.) THE facts giving rise to the present revision, in brief, are as follows :- Ghyasuddin, the predecessor-in-interest of the present applicants, instituted SCC Suit No. 62 of 1999 on the pleas inter alia, that he was the owner and landlord of the disputed property described at the foot of the plaint and the same was let out to the State Bank of India, opposite party, on a monthly rent of Rs. 3000/-. The tenant-Bank failed to pay rent with effect from 1-9-1989. The property in question was a new construction. It was constructed in the year 1985, so the provision of U.P. Urban (Building, Letting and Control) Act, 1972 (hereinafter referred to as Act No. 13 of 1972) are not applicable. The tenancy was terminated by means of notice dated 26-9- 1989 which was served on the defendant on 27-9-1989 and the tenancy stood terminated on 27-10-1989. The defendanttenant in spite of termination of tenancy failed to vacate the demised property and, therefore, are liable to pay damages @ 300/- per day with effect from 28-10-1989. Original plaintiff- Ghyasuddin died during the pendency of the suit and he left behind him a Will which was accepted by other heirs bequeathing the property in question in favour of the present applicants. The suit was contested by the defendant on the pleas inter alia that the property was let out for a period of five years with effect from 25-3-1985 and the suit was premature as it was filed before expiry of the aforesaid period. It was further pleaded that a draft lease deed was prepared and signed by the parties and was handed over to the deceased-Ghyasuddin for getting it registered, but he failed to do so. The plea that notice stood waived as the plaintiff accepted rent after the aforesaid notice was also raised. It was denied that as per Muslim law after the death of Ghyasuddin the applicants inherited the property in question in pursuance of a Will of the deceased as he was not competent to execute the Will for more than one-third share.
(3.) THE parties led evidence in support of their respective cases. The trial Court found that the present applicants are heirs and legal representatives of the deceased-Ghyasuddin and as such competent to continue the suit. The legal heirs have consented the Will after the death of Ghyasuddin. It has also been found that the provision of U.P. Act No. 13 of 1972 are not applicable as the building in question is a new construction and the suit was filed within ten years from the date of construction. However, it dismissed the suit on the findings that the defendant-tenant is entitled to protect its possession under Section 53-A of Transfer of Property Act as the lease deed was unregistered. Consequently the suit was premature as it was filed before expiry of the leased period. On the question of waiver of notice the Court below accepted the defence case and held that the notice terminating the tenancy stood waived. Feeling aggrieved with the aforesaid judgment and decree present revision has been preferred.;