- (1.) HEARD Sri Sharad Sharma, counsel for the appellant and Sri B. C. Pande Sr. Advocate, assisted by Sri Naresh Pant, counsel for the respondent.
(2.) BY the present Second Appeal filed under Section 100 of the Code of Civil Procedure, the appellant has prayed for setting aside the judgment and decree dated 10th August, 1992 passed by District Judge, Pauri Garhwal in First Appeal No. 597 of 1983 Smt. Bindra Deui and others Vc. Raghubir Singh Bisht and another arising out of Original Suit No. 47 of 1979 Smt. Bindra Deui and others Vs. Raghubir Singh Bisht and another. Present Second Appeal was ad mitted on 28-8-1992 on the following substantial question of law : " (1) Whether on the facts of the present case, the defendant-ap pellant No. 2 - son of the appel lant no. 1 is also helping in the hotel business of the appellant No. 1 lower appellate Court was correct in holding that it will amount to surrender of tenancy ? (2) Whether in absence of any evi dence on record and also specific plea by the plaintiff respond ents, the lower appellate court was correct in holding that the tenancy has been surrendered by the defendant-appellant no. 1 ? (3) Whether the learned lower ap pellate Court was correct in holding that since there is an allotment order in favour of the defendant No. 2, so the same will amount to surrender of the ten ancy by the defendant No. 1 ? (4) Whether on the facts of the present case, particularly when the permission was granted for repairing and only the roof of 1st floor was reconstructed with cer tain minor changes on the wall of the 1st floor, lower appellate Court was correct in holding that it amounts to a new construc tion ? (5) Whether the allotment order un der the provisions of U. P. Act No. 13 of 1972 can be chal lenged in a regular suit under Section 9 C. P. C. ?" BACKGROUND OF THE CASe Heard counsel for both the par ties.
(3.) BEFORE going to the merits of the case, it may be pointed out that it is a case, where the litigation has started in the year, 1979 i. e. more than 28 years have already passed and the defendants/ appellants on one or other pretext are delaying the proceedings, although, he surrendered his tenancy in the year, 1977, however, the litigation is still go ing on. The trial Court has dismissed the suit on 14-10-1983. The appellate Court has allowed the appeal on 10th August, 1992. The plaintiff has also filed the cross objection regarding the mesne profits. FACTUAL MATRIX OF THE CASe;