S.K.Mookerji - (1.) -Heard learned counsel for the parties.
(2.) THE petitioner is a tenant and Om Prakash, respondent no. 3, is the landlord. Om Prakash filed a suit in the court of Judge Small Causes, Saharanpur for the eviction of the petitioner on the ground that the accommodation in question is a new one and the provisions of U. P. Act No. XIII of 1972 were not applicable. THE trial court decreed the suit. THEreafter a revision was filed, under section 25 of the Provincial Small Causes Courts Act. This revision has also been rejected by the impugned order dated 25-2-1988; hence this writ petition challenging both the impugned judgments, Learned counsel for the petitioner has argued at length and has stated that the courts below have not decided the case in accordance with law laid down in Ram Swarup Rai v. Smt. Lilawati, 1980 AWC 333. He has relied upon the following observations at page 336, which is quoted below : " The oral evidence in the case is inconsequential being second-hand testimony. Even the recital in rent deed that there was a new construction in 1965- 66 is by the appellant tenant and the respondent landlady, neither of whom has any direct knowledge about the construction because the landlady had purchased that building. Of course, an admission by the appellant tenant is admission against him but an admission is not always conclusive especially in the light of the Municipal records such as are available and the burden such as has been laid down by the statute. Viewed, in this perspective, the failure of the trial court specially to record when the building was completed and what was the extent of re-building, whether, it was a case of total demolition and reconstruction or such extensive additions as to push the existing building into a minor part, becomes fatal. These basic issues have failed to receive any attention from the courts below. A finding recorded on speculative basis is no finding and that is the fate of the holding in the present case. The statute makes it clear that reliance upon the municipal records, rather than on the lips of witnesses, is indicated to determine the date of completion and the nature of the construction. This statutory guideline has been wholly overlooked and the burden lying on the landlord has not been appreciated. The result is that the eviction order has to be demolished." He has also pointed out that the revisional court erroneously held that findings of fact regarding the date of construction and applicability of U. P. Act XIII of 1972 cannot be looked into in a revision, under section 25 of the Provincial Small Causes Courts Act, and, therefore, this writ petition should succeed.
(3.) LEARNED counsel for the respondent has contended that on assessment of the materials on record, municipal record, rent notes and oral testimony, the courts below came to the conclusion that the provisions of section 2 (2) Explanation-1 shall be applicable to this building and, therefore, the U. P. Act No. XIII of 1972 is not applicable. LEARNED counsel for the respondent further pointed out that the property was purchased by means of a sale deed dated 21-7-1978 and in this sale deed there was no mention of any shop. The disputed accommodation is a shop. He has also pointed out that the courts below have relied upon the Municipal assessment for the years 1967-1975 and this property under the sale deed was assessed at an annual value of Rs. 261/- and there was no shop mentioned. LEARNED counsel, therefore, pointed out that for the first time in the assessment for the year 1975-80, four shops and house were shown and, therefore, the courts below were justified in holding that the shop in question for the first time was assessed in the assessment year 1975-80. I have heard learned counsel for the parties at length and after going through the entire material on record and also after hearing the learned counsel on the questions of law, I am of the opinion that this case deserves to be remanded to the lower revisional court for fresh decision in the light of law laid down in 1980 AWC (SC) 333 (Supra). Learned lower appellate court has erred in holding that he cannot enter into the questions of fact. In the present case the question whether the provisions of Act No XlIl of 1972 were not applicable to the accommodation in question depends on the date when the building in question was completed and its first assessment. But there is no such findings. Thus, finding regarding date of construction is a jurisdictional fact and can be examined, under section 25, under the revisional power. The court below failed to exercise its jurisdiction by taking the view that it had no power to interfere with such findings in its revisional jurisdiction, under section 25.;