- (1.) N. L. Ganguly, J. The plaintiffs filed civil suit No. 405 of 1983 in the Court of the Munsif West, Allahabad for a decree of eviction and recovery of rent as well as damages in respect of premises No. 204, Mutthiganj, Allahabad. The plaintiffs pleaded themselves to be the landlord and owners of the property involved in the suit and the defendant to be their tenant at the monthly rent of Rs. 200. The defendant had rented the tenement for carrying on trade in bamboos and similar articles. The plaintiffs terminated the tenancy of the defendant by serving on him a notice under Section 106 of the Transfer of Property Act dated 4-2- 1983 and asked him to vacate the premises within one month after service of the notice. The defendant failed to comply with the notice; hence the suit. It was also pleaded in the plaint that the tenanted premises is not covered under the provisions of the U. P. Act No. 13 of 1972.
(2.) IN written statement the defendant denied the plaint allegations. It was pleaded that the grand-father of the plain tiffs No. 1 and 2, Sri Wajid AH, had filed suit No. 72 of 1982 as owner of the property, who got the construction done on plot No. 132, which now bears the present municipal number 204 and 205. There after Sri Wajid Ali aforesaid created a Waqf AM- aulad'in respect of property No. 132. The plaintiff No. 3 is the present Mutwalli of the said Waqf. The plaintiffs are not the owners of the property in dis pute ; hence they do not have any right to institute the suit in respect of the aforesaid property. Alternately it was pleaded that if the property in suit is not. deemed as Waqf property, then the defendant, being son of the daughter of Sri Wajid Ali, is a co-sharer of the property and no suit can be filed against a co-sharer of the property. The defendant also pleaded that he was tenant of the whole property No. 204 but with the passage of time the plaintiff No. 1 became an adult and expressed the desire to start business. The defendant in consideration of the fact that the plaintiff No. 1 was a close relative, agreed to hand over half of his tenanted portion to plain tiff No. 1 and the defendant remained tlie tenant ol the other half portion. Both the parties executed an agreement. By virtue of that agreement the defendant secured the right to carry a further construction in addition to the construction already exist ing there. The construction in dispute has been in existence right from the life time of Sri Wajid Ali and was earlier known as 'baithak'. The construction was not done by the defendant. Under the agreement executed between the parties it was agreed that the vacant land adjacent to the con struction is for the benefit of the building, which is under occupation and possession of the defendant, and the defendant con ducts his business from that accommoda tion. It has also been pleaded that on the basis of the agreement it was stipulated that the provisions of the U. P. Act No. 13 of 1972 would not be available for evicting the defendant. The validity of the notice under Section 106 of the Transfer of Property Act was challenged as unlawful and it was stated that the provisions ol'the U. P. Act No. 13 of 1972 were applicable so the notice could not be served on the defendant. It was also pleaded that the notice violated the conditions laid down in the agreement between the parties. It was stated that the plaintiffs wanted to raise the monthly rent for the accommodation to Rs. 400 which the defendant refused to accede ; hence the suit. The suit was also said to be beyond jurisdiction of the Munsif Court. The learned Munsif after framing the necessary issues found that the owner ship of the property in question vests in Allatala as the property is Waqf property and the Mutwalli functions only as its manager. The Munsif found in issue No. 4 that the notice issued under Section 106 of the the Transfer of Property Act is valid. The Munsif also held that the plaintiffs are entitled for a decree of eviction of the defendant from the premises in suit and also for a decree of arrears of rent and damages.
(3.) A Civil appeal was filed against the judgment of the Munsif before the lower Appellate Court. The IX Addl. District Judge allowed the appeal, set aside the judgment and decree of the Munsif for eviction of the defendant. Second Appeal No. 2898 of 1987 was filed by the plaintiffs against the judgment and decree of the lower Appellate Court. The High Court framed two sub stantial question of law on which the ap peal was to be decided: (i) Whether the agreement dated 31-10-1978 is being unregistered and against the provisions of sections 11 and 13 of the Act was void and could be looked in evidence ? (ii) Whether the small Kothari with a huge open land could bring the entire tenanted por tion under the definition of 'building' with the provisions of the U. P. Act No. 13 of 1972 ?;