Janardan Sahai, J. - (1.) A suit for rent and ejectment and for recovery of arrears of rent was filed by respondents 2 and 3 against the applicant in respect of a shop bearing No. 119/85-A, Bamba Road, Darshanpurwa, Kanpur Nagar. It was alleged that the applicant was a tenant of a shop No. 4 on the ground floor on a rent of Rs. 550/- p.m.; that he tenant committed default in payment of the rent; that the provisions of U.P. Act No. 13 of 1972 were not applicable to the building in dispute as it was a new construction and. the tenancy of the applicant was terminated by a regd. notice under Section 106 of the Transfer of property Act which was served upon the applicant on 17.11.1998. The suit was contested by the applicant. He alleged that the building is not a new construction and Act No. 13 of 1972 is applicable to it. The allegation that the applicant had committed default was denied. The rate of rent was not disputed. The trial Court framed an issue whether the building is a new construction and the provisions of U.P. Act No. 13 of 1972 were applicable to it. Another issue whether the applicant is in arrears of rent was also framed. The trial Court recorded a finding that the building is a new construction and the provisions of U.P. Act No. 13 of 1972 are not applicable to it. However, on the question of default a finding was recorded in favour of the applicant. The trial Court passed a decree for rent and ejectment against the applicant. Against the decree of the trial Court the applicant filed a writ petition which has been converted into the present revision.
(2.) I have heard Sri Amit Singh counsel for the applicant and Smt. Rama Goel counsel for the respondents.
(3.) It was submitted by the counsel for the applicant that the finding recorded by the trial Court that the Act was not applicable to the building in dispute is erroneous and that the building in which the shop exists shop consists of three stories; ground floor, first floor and second floor and a basement which was subject of assessment since 1973. The landlord, it is contended, have not been able to prove their case that the ground floor portion was demolished and reconstructed. On the record of the case are the extracts of municipal assessment pertaining to the year 1973-78, 78-87, 87-92. Sri Amit Singh pointed out that in the assessment pertaining to the years 73 to 78 and 78 to 87 there is a Gurdwara and upper floor constructions and it was not possible for the landlord to have reconstructed the ground floor without demolishing the entire building. The municipal assessment pertaining to 1987-92 contains a recital that there are six shops with shutter on the ground floor. This assessment has come into effect from 1.10.1988. Plaintiff No. 1 Sardar Indrajeet Singh deposed that the first assessment of the building was made w.e.f. 1.10.1988. There was a resolution of the Nagar Nigam No. 81 of 7.9.1989 for reassessment of the building. In the previous assessments 73-78, 78-87 there is no mention of the six shops which shows that they were not then in existence.;