NIRMAL YADAV,J - (1.) THE appellant Mohinder Kumar has challenged the judgment and order of the Ist appellate Court dated 23.7.1990 dismissing his appeal against the judgment and order dated 7.5.1985 passed by Senior Sub Judge, Hisar vide which suit of the appellant-plaintiff for possession of shop which is a part of property No. B-VII-57 and for recovery of Rs. 592.50 on account of arrears of rent was dismissed.
(2.) THE facts, in brief, are that appellant-plaintiff filed a suit stating that he was owner of the shop detailed above. He constructed the said shop in the month of January 1976. Therefore, the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as 'the Act') are not applicable. The shop was given at a monthly rent of Rs. 185/- plus house tax to defendant-tenant Dhan Kumar (respondent herein) vide Rent Note dated 23.1.1976. The ejectment of the respondent is sought on the ground that he was in arrears of rent with effect from 1.3.1981 to 31.5.1981. The suit filed by the appellant-plaintiff was contested by the defendant-respondent taking up the plea that civil Court had no jurisdiction to try the suit as the shop was constructed even prior to the year 1961, and, therefore, the provisions of the Rent Act were applicable. The relationship of landlord and tenant stands admitted. The trial Court, after considering the fact and evidence on record, came to the conclusion that shop was constructed prior the year 1976. For reaching the aforesaid conclusion, the trial Court mainly, took into consideration the previous litigation between the parties, municipality record, non-production of accounts of family partition and conduct of the plaintiff. The learned trial Court referred to an application under Section 13 of the Act filed by the plaintiff before the Rent Controller for eviction of respondent from the demised premises. The factum of filing of the said application was admitted by the plaintiff in his cross-examination. In the said proceedings, it was alleged that the building was constructed prior to the year 1976, therefore, Rent Controller had the jurisdiction to adjudicate upon the same. The plaintiff had invoked the jurisdiction of Rent Controller and himself admitted that the premises was constructed prior to the year 1976. The trial Court further referred to the record of the Municipality. A reference was made to Exhibit D-1, noting of Ved Pal Gupta, Inspector Municipality, who had made a report that during inspection he found that Mohinder Kumar, resident of Bazar Khazanchian had converted his two rooms into two shops without permission and accordingly, notice dated 11.12.1975, Exhibit P-6 was served upon the plaintiff. The plaintiff submitted reply thereto, Exhibit D-4, stating that while removing encroachment outer wall of his shop got damaged. He got the walls plastered and repaired and did not raise any new construction. He moved another application, Exhibit D-6 dated 24.2.1976 stating that the unauthorised construction may be compounded and notice be filed.
(3.) FROM the above record of Municipality, it is more than evident that the construction of the shop was old and only one wall was repaired and that too prior to the year 1976. The appellant-plaintiff also failed to produce any documentary evidence i.e. vouchers, receipts, etc, of construction material to prove that he had incurred the expenditure for carrying out repair work prior to the year 1976.;