- (1.) S. P. Srivastava, J. These two peti tions have been filed by the parties against the judgment and order dated 19. 11. 1984. The dispute in question is in between the landlord and tenant arising out of a suit filed by Dr. Maqsood Hussain against the petitioner (hereinafter referred to as the tenant) for arrears of rent and delivery of possession on the ground of default as well as that the tenant has made material al teration in the rented portion (Chabutra) and the writ petition No. 17349 of 1984 has been filed by the tenant whereas the writ petition No. 3141 of the 1985 has been filed by the landlord. In writ petition No. 17343 of 1984, there is an order of this, Hon'ble Court dated 24. 8. 19850 connect' this writ petition along with writ petition No. 3141 of I985,therefore, the parties were heard in both the petitions and both these writ petitions are being decided by common judgment. This Civil Misc. Writ Petition No. 17349 of 1984, Sri Chunubad v. District Judge, Banda and Another shall be the leading case and the judgment is being delivered in this case. A copy of the judg ment shall be placed on record of the Civil Misc. Writ Petition No. 3141 of 1985.
(2.) THE brief facts, as stated in the writ petition giving rise to the present writ peti tion are that Dr. Maqsood Hussain Khan (landlord) who has been arrayed. a respondent No. 2 in this writ petition filed a suit being S. C. C. No. 18 of 1982 against the petitioner for ejectment, arrears of rent, amounting to Rs. 620 and delivery of possession on the allegations inter alia that the petitioner was a tenant of a disputed accommodation since 1. 2. 1973 on a monthly rent of Rs. 20. He was given tenancy of one Pucca room, front Khaprildar Chabutra. THE tenant raised two walls on the land of Chabutra and built a latrine upon plaintiff s land without the permis sion of the landlord and has taken illegal possession causing disturbance in the user of eastern exit door of the plaintiff's house, therefore, on 22. 5. 1980 a notice was sent to the defendant/tenant directing him not to continue with the construction but when it was not stopped. THE tenant did not pay rent from 1. 5. 1980 despite the service of notice dated 5. 7. 81, which was served on him on 29. 7. 98. THE suit was filed for the ejectment and recovery of the arrears of rent, damages etc. The suit was contested by the petitioner on the ground, inter alia, that he was tenant of only one room at the month ly rent of Rs. 20 and land in front of that room was not owned by the plaintiff. It is further stated in the written statement by the tenant that then he had been paying rent of the tenanted portion to the father of the plaintiff who was his Mukhtar-e-Aam and who has been realising the rent since beginning and used to issue rent receipt through his servant Rajjab. The petitioner asserted that he had paid the rent after 1. 4. 90 to Sri Manzur Husain (father of the respondent No. 2) and paid rent from May, 1980 to October, 1980 through his servant Rajjab and since Man zur Husain had gone for Haj as such, he could not get any receipt for that payment of rent and thumb-impression was given by Rajjab in lieu of the payment of rent received through him. It is further stated that after return from Haj, the rent receipt of May, 1980 to October, 1980 was demanded by the petitioner from Manzur Saheb but no receipt was issued by him, then the defendant remitted the amount through the money order from November, 1980 which was accepted by Manzur Saheb, thereafter, since June, 1981, January, 1998 Manzur Saheb stopped ac cepting the rent through the money order, then the defendant deposited the same under Section 30 (1) of the UP. Act No. XIII- of 1972, therefore, he never com mitted any default. The allegation regard ing the alteration in the construction made in the tenanted portion was also denied by the defendant. It vas stated that the land situated in front of the room which was only in the possession of the defendant was not in the tenancy of the tenant. The said land was possessed by the defendant's son and wife, who had kept Chapper and were carrying on their betal shop. The trial Court dismissed tie suit in toto with the finding that there was no material altera tion caused by the tenant in the room and over the eastern Chabutra and further the father of the respondent-landlord used to realise the rent from the petitioner as Mukhtar-e-Aam of the landlord. Further finding of fact was recorded by the trial Court that the rent from May, 1980 to October, 1980 was paid by the petitioner to Rajjab alias Razzaq, the servant of the landlord and further from November, 1980 to May, 1981 the rent was paid, which is proved from Ex. A-19 to Ex. A-9. There fore, on the date of notice under Section 106 of Transfer of Property Act, dated 5. 8. 1988, there was only arrears of one month's rent, hence, the notice was invalid and tenancy of the petitioner (tenant) was not validly terminated and he was not li able to be ejected. Aggrieved by the judgment and order of the trial Court landlord filed a revision being S. C. C. Revision No. 64 of 1984 in the Court of the District Judge, who by his judgment and order dated 29. 11. 1984 allowed] the same and decreed the suit for arrears of rent and ejectment. The learned District Judge held that only one room was under the tenancy of the petitioner, but the deposit made under Section 30 (1) of the Act had no value as his application under Section 30 (1) was dis missed by the Munsif, therefore, no benefit of the said provision is available to the petitioner. He further held that the rent paid to unauthorised person was not valid payment to the landlord and defendant committed default tinder Section 20 (4) of the Act and further no deposit was made according to the provisions of Order V, Rule 15, CPC, therefore, the finding given by the trial Court was set aside on the point of default. The petitioner has challenged this judgment in the present writ petition.
(3.) DR. Maqsood Hussain Khan has challenged this very judgment in Civil Misc. Writ Petition No. 3141 of 1985, inter alia on the ground that the District Judge has failed to consider the material evidence i. e. rent note and application of the petitioner (tenant) under Section 30 of the Act, in which it was accepted by the tenant that Chabutra is part and parcel of his tenancy. The landlord has also chal lenged the judgment of the revisional authority on the point of accommodation in tenancy on the basis of the report sub mitted by the Amin, notice given by the petitioner and its reply given by the tenant, and on the contention that the Chabutra was not in the tenancy of the tenant. He has also challenged that under Section 180 (d) of the Transfer of Property Act the Chabutra and the construction it shall be deemed to be accession in the property let out and relief of ejectment could not be legally refused. The prayer made by the landlord in this writ petition is that for quashing the order dated 29. 11. 1984 and 21. 9. 1984 passed by the respondent Nos. 1 and 2 respectively so far as the relief of ejectment from Chabutra and construc tion raised over which by the tenant is concerned, which has been refused by both the Courts below. The counter and rejoinder affidavits have been exchanged between the parties. Heard the learned Counsel for the parties at length and I have perused the entire record of both the cases. A perusal of the judgment of the trial Court would show that the trial Court considered the oral evidence adduced on behalf of the parties and also documentary evidence which has been mentioned in details in its judgment. Before the trial Court only two issues were to be decided first with regard to the arrears of rent and default made by the tenant and second with regard to the material alteration made in the tenanted portion, which included the extent of tenanted portion as to whether only one room was given in the tenancy or it in cluded the Chabutra also.;