Poonam Srivastav, J. - (1.) HEARD Sri A. K. Tiwari, learned counsel for the petitioner and Sri M. M. D. Agrawal, counsel for the contesting respondent.
(2.) THE dispute relates to a shop situated at Chimara Road Kasba Jaswant Nagar, Pargana Saifai, district Etawah, which was let out at monthly rent of Rs. 300 per month. THE landlord/respondent sent a notice dated 20.8.1996 demanding arrears of rent and terminating tenancy on the ground that shop in dispute is 1994 construction and, therefore, U. P. Act No. 13 of 1972 is not applicable. After expiry of the period of notice, the instant suit for eviction was instituted, which was contested by the petitioner. He denied allegation in his written statement and his stand was that previously there was a shop having Tin shade covered on four sides by tattar and bamboos on the same land where the present shop is standing. The tenant's submission was that previously he was paying rent to the landlord at the rate of Rs. 40 per month. Affidavits were exchanged. Oral evidence was also led. The petitioner examined himself as D.W. 1 and Sakir Hussain D.W. 2. The respondent adduced his oral evidence as P.W. 1. Trial court was of the view that Rent Control Act is not applicable and since the tenancy was determined by means of notice, an order of eviction was passed. S.C.C. Revision No. 5 of 2007, Zahid Hussain v. Ram Swaroop Gupta was preferred in the Court of the Additional District Judge/Special Judge (S.C./S.T. Act), Etawah, which stood dismissed vide judgment and order dated 28.5.2009.
(3.) FIRST submission of the counsel for the petitioner is that since the petitioner was admittedly a tenant of a roofed structure constituted by a Tin shade and tattar for a very long time, finding of the courts below that U. P. Act No. 13 of 1972 is not applicable is against the law and his tenancy could not be terminated simplicitor by means of a notice under Section 106 of Transfer of Property Act. It is argued next by the counsel for the petitioner that there was no service of notice. He has clearly denied service in his written statement as well as statement on oath during the proceedings and, therefore, no presumption could be drawn against him under the Evidence Act regarding service. On the basis of this argument, finding of the court below is emphatically challenged. Statement of D.W. 1 is annexed as Annexure-6 to the writ petition.;