Prakash Krishna, J. - (1.) RAISING a short controversy, present writ petition has been filed by landlord of premises No. 281/D -2 Kankarali Road, Mohalla Chhatta, District Saharanpur, being a shop. Respondent No. 3. Dr. S.L. Agrawal, was the tenant of said shop on a monthly rent of Rs. 300/ -. Tenancy of respondent No. 3 (hereinafter called as tenant) was determined by a notice dated 1st of April, 1985 which was served on the next date i.e. on 2nd of April, 1985. A suit for recovery of arrears of rent and damages and ejectment was filed by the petitioner on the pleas inter alia that the shop in question is a new construction and as such provisions of U.P. Act No. 13 of 1972 are not applicable. In other words, it was pleaded that the first assessment of the shop in question was made on 1st of April, 1977 and the said shop is exempted for a period of 10 years from that date. Suit was filed, admittedly, within a period of 10 years from 1st of April, 1977. It was numbered as S.C.C. Suit No. 27 of 1995. The suit was contested on the pleas inter alia that the disputed shop was constructed in the end of first quarter of year 1971 and therefore, provisions of U.P. Act No. 13 of 1972 are applicable. The further averment in the written statement was that landlady herself applied to the Chairman of Municipal Board vide her application moved in July, 1970 for permission to raise construction as per the sanctioned plan. Construction was completed in the end of first quarter of 1971. Its completion was reported by the Executive Officer, City Board, on 22nd of July, 1971 who recommended assessment of disputed shop.
(2.) PARTIES led evidence in support of their respective cases. The Trial Judge by his judgment and decree dated 25th of November, 1993 dismissed the suit on the findings that provisions of U.P. Act No. 13 of 1972 were applicable and there was no default in payment of rent. The said decree has been confirmed in S.C.C. Revision No. 140 of 1993 by the judgment dated 4th of July, 1996. The said judgment is under challenge in the present writ petition. The Trial Court as well as the Revisional Court both have proceeded to decide the date of construction on the footing that D.W./3 Ishwar Chand son of Phool Singh was produced as defendant's witness who has stated in his deposition that the shop was constructed in the year, 1971, wherein his father Phool Singh was tenant earlier. Shri Phool Singh filed an application in this regard before the Nagar Palika. Record of Nagar Palika Gangoh was summoned and the said record was produced by the clerk (Karnpal Singh) of Nagar Palika Gangoh. The Revisional Court proceeded to decide the issue against petitioner on the footings that the landlady did not inform about completion of construction to Nagar Palika. It was not disputed that shop in question was assessed for the first time w.e.f. 1st of April, 1977. It took into consideration an application filed by Shri Phool Singh dated 12th of September, 1971 paper No. 5. This is a letter given by Phool Singh to the President of Nagar Palika Gangoh. From the judgment it appears that the said application was a sort of complaint made by the author of the application alleging that petitioner is raising construction in connivance with the officials of Nagar Palika and has let out the shop to a tenant on monthly rent of Rs. 60/ -. The other shop was let -out to one Rafiq Ahmed. It has been further noted that the map was submitted for the first time in the year 1970 to Nagar Palika. The Revisional Court was also of the view that petitioner who is landlady did not appear in the witness box and produced her husband P.W./1 namely Banarsi Das in support of her case and as such an adverse inference may be drawn against the petitioner. Ultimately, it concluded that since Nagar Palika had been in possession about of the information about construction, that will be the relevant date for the purpose of determining the date of construction. It took the view that since shop in question was completed earlier to the date of first assessment and the map was filed in the year, 1970, therefore, the building was constructed earlier.
(3.) HEARD the Counsel for the parties.;