Prakash Krishna, J. - (1.) THE petitioner is a tenant of building No. 138, Daraganj, Allahabad of which the respondent No. 3 is the landlord. S.C.C. Suit No. 164 of 1977 was filed by the respondent No. 3, hereinafter called 'the landlord' for recovery of arrears of rent from northern portion of House No. 138, Baski Kalan, Daraganj comprising of three rooms on the ground floor and one room on the first floor along with latrine, kitchen and verandah, etc. on the ground that the petitioner -tenant is in arrears of rent from 9.9.1975 to 25.3.1977 to the tune of Rs. 648.62 paise and the provisions of U.P. Act No. 13 of 1972 do not apply to the property in dispute as it is a new construction and is exempted under section 2(2) of the Act. The said suit was contested by denying the fact that the building in question is a new construction. The case of the petitioner was that the provisions of U.P. Act No. 13 of 1972 are applicable to the building in question. The respondent -landlord filed certain municipal extracts to show that the building in question was first assessed by the Municipal Authorities in the year 1971 and the suit having been filed within the period of 10 years therefrom, is exempted from the operation of U.P. Act No. 13 of 1972. The suit was earlier decreed by the Courts below and the matter reached to this Court in Writ Petition No. 3810 of 1980, at the instance of the present petitioner. This Court came to the conclusion that the municipal extracts filed by the respondent -landlord is prima facie in respect of other part of construction of building No. 138, Baski Kalan, Daraganj. The said writ petition filed by the present petitioner was allowed by this Court vide order dated 23.4.1983 and the matter was restored back to Judge, Small Causes Court to record its findings as to whether the copy of the first assessment filed by the landlord relates to the property in question or not. This Court was of the view that this is a crucial question for determination in the suit and the petitioner having not been in a position to obtain certified copy of the assessment records, he rightly applied before the Judge, Small Causes Court to summon the relevant document from the Municipal Board. The Court further observed that the application filed by the petitioner to summon the municipal record was wrongly rejected by the Judge, Small Causes Court and directed that the Judge, Small Causes Court will reconsider the application made by the petitioner in this behalf and pass fresh orders thereon for summoning the relevant record so that justice may be done between the parties.
(2.) AFTER remand by this Court, the matter was reconsidered by the Trial Court in the light of the observations made in the judgment of the High Court and the Trial Court reached to a definite conclusion that the assessment records relied upon by the respondent -landlord do not relate to the property in question. However, it proceeded further to determine the date of the construction of the disputed accommodation on the basis of the oral evidence produced by the parties. The Trial Court ultimately reached to the conclusion that the building in question was earlier occupied by Moti Ahmad before the petitioner, therefore, the provisions of U.P. Act No. 13 of 1972 are applicable and consequently it dismissed the suit. The matter was carried forward by filing S.C.C. Revision No. 542 of 1985. The Revisional Court although confirmed the findings recorded by the Trial Court that the assessment records relied upon by the respondent -landlord do not relate to the property in question, but it recorded a further finding that the petitioner was the first tenant who occupied the disputed premises admittedly in the month of August, 1971 and the suit having been filed within the period of 10 years therefrom the building in dispute is exempted from the operation of U.P. Act No. 13 of 1972, by the impugned judgment and order dated 21.9.1993. Hence the present writ petition at the instance of the tenant. Sri M.K. Gupta, learned Counsel for the petitioner submits that it having been found that the landlord has failed to establish that the assessment records relied upon by him do relate to the disputed accommodation, the Revisional Court committed illegality in deciding the revision on the ground that the petitioner was the first occupant of the disputed accommodation and, as such, the inference drawn by the Revisional Court that the building in question was constructed in the month of August, 1971 is vitiated. Elaborating the argument, it was submitted that it was not open for the Revisional Court to re -appreciate the evidence with regard to the date of first occupation of the building in question as it was not even pleaded by the plaintiff and the Revisional Court travelled beyond the pleadings of the parties. In response, Sri M. Islam, learned Counsel for the respondent -landlord submits that the findings recorded by the Revisional Court are findings of fact and are based on relevant consideration and, therefore, no interference is called for. He also submits that looking to the extent of the tenanted accommodation, if this Court is inclined to grant relief to the petitioner, it should enhance the rent to a reasonable limit to adjust the equities between the parties. The market price of immovable properties have shy rocked.
(3.) I have given careful consideration to the respective submissions of the learned Counsel for the parties. In para -2 of the plaint, only this much has been stated that the house in question is a new construction of the year 1970 -1971 and as such, it does not come within the ambit of U.P. Act No. 13 of 1972. It may be recalled that the suit was filed in the year 1977. U.P. Act No. 13 of 1972, at the relevant point of time, provided 10 years' exemption to the building from the operation of the provisions of U.P. Act No. 13 of 1972 from the date of construction. Section 2(2) of the said Act provides the manner of determination of the date of construction of a building for the purpose of calculating the period of 10 years. It provides four criterion for determination of date of construction of a building. In a case where the building is subjected to municipal assessment, the date of first assessment is the relevant date. In the absence of any material regarding the date of first assessment and inapplicability of other criterion as per the section 2(2) of the Act, the date of first occupation of the building is the starting point for the calculation of 10 years' exemption period.;