M. P. Saxena, J. - (1.) THIS is a revision application under Section 115 C. P. C. by defendant Nos. 1 and 2 against the judgment and order dated 16-8-1974 passed by the Second Additional District Judge, Meerut.
(2.) BRIEFLY stated the facts are that Ratan Lal, plaintiff-opposite party No. 1, is the owner of the shop in dispute. He had let it out to Mahendra Sen, defendant-revisionist No. 1, on a monthly rent of Rs. 52/-. According to the plaintiff the shop along with the Kotha and the gallery were constructed in 1967 and the provisions of U. P. Act III of 1947 were not applicable to it. It was also alleged by the plaintiff that defendant No. 1 had sublet the shop to defendant No. 2 on a monthly rent of Rs. 70/- and the gallery to defendant No. 3 on a rent of Rs. 20/- per month. The notice to quit was given on 30-1-1971 and the suit was filed on 25-3-1971 for recovery of Rs. 109/- as arrears of rent from defendant No. 1, Rs. 35/- as damages for use and occupation and for ejectment of the defendants from the shop, Kotha and the gallery in suit. The defendants contested the suit, inter alia, on the grounds that the disputed premises were constructed before 1951 and were governed by the provisions of U. P. Act III of 1947, that there was no sub-letting to defendant No. 2, that Satish Kumar being the real brother of defendant No. 1 was sitting on the shop on behalf of his brother, that the defendant No. 3 had no concern with the shop or the gallery and the notice to quit was invalid. The learned trial court came to the conclusion that the accommodation in dispute was constructed in 1966-67 and neither the old nor the new Acts were applicable to it. The notice to quit was held to be valid and the suit was decreed.
(3.) ALL the three defendants filed a revision application under Section 25 of the Small Cause Courts Act. The learned lower revisional court held that the building was constructed in the fag end of 1967, that even upto the date of decision in the revision the new Act i. e. U. P. Act XIII of 1972 had not become applicable to it. No other point was pressed before him and the revision application was dismissed. The first question for consideration is as to when the building in suit should be deemed to have been completed for purposes of the new Act. Section 2 (2) Explanation I makes it clear that a building will be deemed to have been completed on the date on which completion thereof is reported to or otherwise recorded by the local authority having jurisdiction and in the case of a building subject to assessment, the date on which the first assessment comes into effect and in the absence of. any such report, record or assessment the date on which it is actually occupied for the first time. In the instant case the learned lower courts came to the conclusion that from the material on the record the premises in suit appear to have been physically raised in the fag-end of 1967. Admittedly its completion was not reported to or recorded by the Municipal Board. For the first time it was assessed in 1972 but before that it was given on rent to the defendant No. 1 by means of a rent note. According to the terms of the rent note, possession of the shop was delivered to Mahendra Sen, defendant, on 8-1-1968 although its tenancy commenced from 1-1-1968. In this connection reference may be made to the case of Ras Mohan v. Shivanath Chaurasia, 1977 AWC 19 in which it has been held that the words "report, record or assessment" are disjunctive and in the context the provision should be read that in the absence of a report or record or assessment the date of first occupation will be relevant. The reason is that in the absence of any report or record by the local authority the assessment to tax will be problem. It may come about after several years depending on the knowledge of the local authority of the newly made constructions. In such an event completion of the construction could not be known reliably and the date of its first occupation becomes relevant. In that case the newly constructed rooms were let out to the defendant in April 1966 though the assessment was for the first time made in 1968. The building was deemed to have been completed in April 1966. This principle fully applies to the instant case and the building will be deemed to have been complete on 8-1-1968 when the defendant actually entered into possession of the shop etc. Ten years' period has expired in January 1978 and the provisions of the new Act have become applicable to it. There is no controversy that the requirements of Section 39/40 of the new Act have been fully complied with and the defendant revisionist cannot be ejected on the ground of default. There is however, another ground on which ejectment was sought. It was subletting of the property to Satish Kumar, defendant No. 2 and Vimal Prasad, defendant No. 3. It may be stated here that Satish Kumar is the real brother of Mahendra Sen. Most of material exists on the record to warrant that Mahendra Sen defendant has left possession of the shop etc. and they are in possession of Satish Kumar and Vimal Prasad, defendants. The plaintiff examined himself and deposed to this effect. He also examined Kailash Chand who has a shop adjacent to the disputed shop. The latter gave out that Mahendra Sen has shifted to Beohni, where he used to reside normally and the shop etc. were let out to defendants Nos. 2 and 3. He further stated that Mahendra Sen was not carrying on any business over this shop. As against it Mahendra Sen examined himself and his own testimony points to the conclusion that he was resident of Beohni. Summons of this case were served upon him at his Beohni address. There he carried on Parchun and cloth shop. He did not say that he had given it up at any stage. According to his own showing, the shop is being run in the name of Satish Kumar Vimal Prasad, i. e. defendants Nos. 2 and 3. In what capacity these two persons are running the shop etc. in their names was not disclosed. He also admitted that all the Bijaks about goods were in the name of Satish Kumar and not even one was in his name. Therefore, the learned lower courts were right in holding that Mahendra Kumar has ceased to be in possession of the shop etc. and they were in possession of the defendants Nos. 2 and 3.;