- (1.) SUNIL Ambwani, J. Heard Smt. Subhash Rathi, learned Standing Counsel for the State of U. P. and the Trade Tax Officer, Gorakhpur-the petitioners. Shri Rahul Sripat appears for the respondent-landlord.
(2.) THE State of U. P. through the Collector, Gorakhpur and the Trade Tax Officer, Bungalow No. 5, Park Road, Civil Lines, Gorakhpur, have prayed for set ting aside the judgment and order dated 1. 12. 2005 passed by the Judge, Small Causes Court, Gorakhpur, by which he has decreed the S. C. C. Suit No. 33 of 2000 between Kailash Jaiswal v. State of U. P. and another, for ejectment and arrears of rent @ Rs. 7,500/- per month upto the date when the possession is delivered to the plaintiff and the order dated 29. 3. 2006 passed by the Additional District and Sessions Judge, Fast Track Court No. 1, Gorakhpur, dismissing Small Causes Court Revision No. 1 of 2006 between State of U. P. v. Kailash Jaiswal. The plaintiff-respondent filed a suit for ejectment stating that he is the owner and landlord of Bungalow No. 5, Park Road, Civil Lines, Gorakhpur. The land was held under a lease, which was converted into free hold, by the State Government by a registered sale deed dated 24. 9. 1999 after completing all the formalities and after accepting Rs. 19,12,900/-as sale consideration. The Trade Tax Officer-defendant No. 2 was occupying the premises since before 18. 5. 1983 as a tenant @ Rs. 167/- per month. The plaintiff has acquired the right of the owner and landlord of the premises, on which defendant No. 2 has become his tenant. A notice of purchase of property was given to defendant No. 2. The rent was due for several years. The defendant No. 2 did not pay the rent. The suit property is not regulated by the provisions of UP. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. A notice dated 24. 3. 2000, demanding the rent and terminating the tenancy was given along with Section 80 of the Code of Civil Procedure. The notice was received by the defendant No. 2 on 25. 3. 2000. The defendants did not pay the rent or vacate the premises. It was alleged that the suit property can be let out @ Rs. 10,000/- per month. The defendants denied the plaint allegations and the ownership of the plaintiff over the land. The defendants admitted that the lease hold land was con verted into free hold. However, it was stated that the document was executed by playing fraud and that the District Magistrate has cancelled the document. There after a Government Order was issued on 27. 11. 2001 on which the State Govern ment has filed a suit for cancellation of the free hold document in the Court of Civil Judge (Junior Division) Gorakhpur. The premises are in occupation of the Sales Tax Office. The building is regulated by U. P. Act No. 13 of 1972 and that the suit is barred by Section 80 of Code of Civil Procedure and Section 106 of Transfer of Property Act. The arrears of rent were also denied.
(3.) THE trial Court held that the subject building was constructed on Nazul plot No. 125. lt was allotted by District Magistrate, Gorakhpur to the Sales Tax Office on 28. 6. 1949 for office-cum-residence purposes. THE possession of the land was taken back by the Nagar Nigam on 4. 5. 1991 and was handed over to the Sales Tax Department. THE defendants however admitted that a patta of nazul land was executed on 7. 3. 1963 in favour of Shrianant Prasad after it was surrendered by the erstwhile lessee. THE parties admitted that the land was nazul land, the own ership of which vested in the State. It was leased out to Shri Anant Prasad on 7. 3. 1963 and that the building was allotted by the District Magistrate to the Sales Tax Office. It was admitted to both the parties to the suit that the document converting the land into free hold was executed by the District Magistrate, Gorakhpur in favour of the plaintiff on 24. 9. 1999. THE State of U. P. however, has filed a suit for cancellation of the sale deed. THE land, measuring 30,000 sqrfts with lease hold rights, was converted into free hold. THE trial Court found the plaintiff to be the owner and the landlord of the land and building. THE document of sale does not provide for any condition that the building will not be transferred along with the land and that under Section 8 of the Transfer of Property Act, the ownership of the building also vests in the plaintiff. THE trial Court further found that the U. P. Act No. 13 of 1972 is not applicable to the building on the ground that the State was a tenant of the building before amendment of the Act and insertion of Section 2 (1) (a) by U. P. Act No. 17 of 1985. It relied upon the judg ment in State of U. P. v. Mallick Zareed Khalid, AIR 1988 SC 132, in holding that the public buildings, defined under Section 3 (o) of the Act, were exempt from the purview of the Act, only after its amendment. THE agreement of rate of rent was not established. THE allotment order was not filed by any party on record to prove the rate of rent. THE trial Court found that the rent was not due from the defendant. On issue Nos. 5 and 6, the trial Court held that the notice, terminating the ten ancy under Section 106 of the Transfer of Property Act, was received by the tenant. It was a composite notice under Section 106 of the Transfer of Property Act, and Section 80 of CPC, giving 30 day's time to the tenant to vacate the premises. THE notice was proved and was served upon the tenant. With regard to the rate of rent, the trial Court found that there was no agreement nor there was any stipulation in the allotment order fixing the rent. THE building, however, situ ated in Civil Lines, Gorakhpur and constructed over 30,000 sqr mtrs, could easily fetch Rs. 10,000/- per month. Taking into account the age of the building, the rate of rent @ Rs. 7,500/- was found to be just and proper. Both the State of U. P. as well as Shri Kailash Jaiswal-the plaintiff filed Small Causes Revisions, numbered as Small Cause Revision 1 of 2006 and Small 1 Cause Revision No. 2 of 2006 respectively. The revisional Court upheld the findngs recorded by the trial Court except the findings on issue No. 1, relating to the rate of rent. The revisional Court found that in the plaint the rate of rent was stated to be Rs. 1677- per month and not Rs. 1877- per month. This rate of rent was not denied in the written statement. The defendants stated that the plaintiff did not give any intimation about the change of ownership and the arrears of rent. The Sales Tax Department is in occupation of the building since 1949, and claims to be the owner of the property. The rate of rent was not specifically denied. The plaintiff claimed seven month's rent from 24. 9. 1999 to 24. 4. 20. 00 and Rs. 5507- as costs of the notice. The lease of nazul land was executed by the then District Magistrate in favour of Shri Anant Prasad on 7. 3. 1963. On that date the building was let out by an allotment order of the District Magistrate dated 28. 6. 1949. The free hold deed was executed on 24. 9. 1999. The Sales Tax Department had filed a suit for cancellation of lease deed. The plaintiff became the owner and landlord on the execution of the free hold deed dated 24. 9. 1999 and that until the deed is cancelled by the Court of competent jurisdiction, the plaintiff will be the owner and landlord of the building with the land.;