- (1.) A. P. Singh, J. This second appeal has been filed by the plaintiff-Rehmatullah challenging the judgment and decree passed by Sri R. P. Verma, a Civil Judge, Aligarh (hereinafter referred to as 'the lower appel late court') dated 25th April, 1988.
(2.) PLAINTIFF-appellant filed suit seeking eviction of the defendant-respondents, namely, Mohd. Sharif and his brother from the property in suit, which was described by him as open piece of land. It was stated in the plaint that the land in suit was an open piece of land which was let out to the defendant-respondents on monthly rent of Rs. 200. According to the appellant, the property in suit was not governed by the provisions of U. P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'the Act'), inasmuch as, only an open piece of land was let out on which, without the permission of the plaintiff, defendants raised construction of a khoka by putting tin shed. Hence he terminated the tenancy and filed suit for their eviction from the proper ty in suit. The defendants contested the suit on the ground that plaintiff had let out a shop which was already in existence on the land in suit, for running a tea stall. It was further stated that the rent of the shop, in dispute was only Rs. 30/- per month and not Rs. 200 as was claimed by the plaintiff. It was further alleged that the provisions of the Act were attracted and, therefore, the suit was not, at all, maintainable in Civil Court.
(3.) AFTER considering evidence on record, in the light of the pleadings of the parties, trial court held that what was let out to the defendants was an open piece of land, and not a shop. Trial court also held that the rent of the land which was let out was Rs. 200 per month and that Mohd. Sharif was in default and had also constructed a shop on it, without obtaining permission ofthe plaintiff-appellant. The suit of the plaintiff was accordingly decreed. Trial court also held that the suit was maintainable and the provisions of the Act were not attracted to the property in suit, including Section 29-A thereof. Feeling aggrieved by the judgment and decree of eviction passed by the trial court, defendants filed appeal under Sec tion 96 of the Code of Civil Procedure. The lower appellate court, which decided proce dure. The lower appellate court, which decided the appeal on examination of the case, in the light of the pleadings of the parties, found that the property in suit had earlier been let out to one Anwar, who was running a shop for manufacturing 'balti' (bucket)therein. Lower appellate court rejected the explanation given by the plain tiff that Anwar had removed the khoka at the time when he vacated the land in suit following termination of his tenancy, on the ground that removal of Khoka by Anwar had not been proved by the plaintiff by evidence. It was further found uat the property in suit had been duly assessed to house and water -ax since the year 1975 and electricity connection had been given by the Electricity Department in the shop situate thereon since 1978. It was further found that the plaintiff belonged to the same city where the property in suit was situate and used to visit the shop in question every month for collecting rent from the defendants. In the light of evidence on the record, and the circumstances of the case, the lower appel late court came to the conclusion that what was let out to Mohd. Sharif by the plaintiff was a shop, and not a vacant piece of land, and, therefore, according to the lower ap pellate court, the provisions of the Act were fully attracted to the property in suit. Lower appellate court also found that the plaintiffs plea that Mohd. Sharif had raised construction on the land in suit about 15 to 20 days prior to the filing of the suit was wholly false. It was also found by the lowei appellate court that existence of a shop was also shown in the sale-deed, which the plain tiff had obtained by way of acquisition of the property in suit. It was further found that the tenancy ofthe defendant No. 1 had been terminated, inasmuch as, defendants were co-tenants where as notice had not not been served on Mohd. Sharif, defendant No. 1. On this basis it was concluded by the lower appellate court that plaintiff was wrong in saying that the construction in the land in suit was a new one. It was further held that since appellant sought eviction of the respondents from a building and not trom an open piece of land as such the suit was not maintainable in civil Court and was maintainable before Judge Small Causes Court. On the above conclusions, the suit was dismissed, as not maintainable and the judgment and decree passed by the trial court was set aside.;