RAKESH KUMAR JAIN, J. - (1.) THIS appeal is directed by the plaintiff against the judgment and decree of the Courts below whereby his suit for possession by way of ejectment of the defendants has been dismissed.
(2.) BRIEFLY stated the facts of the case are that the plaintiff filed a suit for possession on 19.3.1984 alleging himself to be the owner/landlord of the shop with a verandah and stair case built on plot No. 106, situated in New Sabzi Mandi Palwal. It was alleged in the plaint that the said shop was taken on rent by defendant No. 1 on a monthly rent of Rs. 300/- including house tax about five years back but defendant No. 1 has ceased to occupy the shop and has placed defendant Nos. 2 and 3 in possession as sub tenants. The plaintiff alleged that he requires the shop in dispute for his personal use and occupation and does not want to keep defendant No. 1 as his tenant and for that purposes, he has terminated the tenancy of defendant No. 1 by a registered notice dated 26.12.1983 giving him one month's time to vacate the shop and the said notice was served upon defendant No. 1 on 27.12.1983. It was alleged that defendant Nos. 2 and 3 were also issued registered notices to vacate the shop which was illegally and unauthorisedly occupied by them. The said notice was given on 26.12.1983, which was received by the sub tenants defendant Nos. 2 and 3 on 28.12.1983 and on 2.1. 1984 respectively. Plaintiff also alleged that since the construction of the shop had been completed in the year 1977-78, therefore, the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short, 'the Act') are not applicable to the tenancy of defendant No. 1 in respect of the shop in dispute, therefore, only Civil Court has got the jurisdiction to try the suit. Defendant Nos. 1 to 3 filed the written statement in which it was alleged that the building in question was constructed and completed on 07.9.1972 in view of notice dated 6.6.1972 issued to Arhu Ram son of Chela Ram of Palwal by Market Committee, Palwal, therefore, the provisions of the Act, are applicable to this case and the Civil Court has no jurisdiction to try the present suit. It was further alleged that defendant No. 1 has not ceased to occupy the shop in question and denied that defendant Nos. 2 and 3 are in possession as sub- tenants. It was categorically denied that the shop in question was constructed and completed in the year 1977-78 as alleged in the plaint. Rather, it was averred that the shop was constructed and completed by the previous owner Arhu Ram on or before 07.9.1972 and the sale deed or agreement regarding mentioning of plot No. 106 is false, frivolous and in-admissible as the same has been created in order to save stamp and to deceive the government. Notice dated 26.12.1983 was also denied to be false,frivolous and illegal.
(3.) IN the replication, the preliminary objections raised by the defendants were denied. On the pleadings of the parties, following issues were framed by the trial Court :- 1. Whether the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 are not applicable ? OPP 2. Whether defendant No. 1. has ceased to occupy the shop in dispute and whether he has handed over the possession to defendant No. 2 and 3 as sub tenants without the consent of the plaintiff ? OPP 3. Whether the plaintiff requires the shop in question for his personal use ? OPP 4. Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction ? OPD 5. Whether the plaintiff has no cause of action ? OPD 6. Whether the suit is bad for mis-joinder of parties ? OPD Additional Issue was also framed which is as under :- 1-A Whether the notice has been waived, if so to what Effect ? OPD 7. Relief Both the parties led oral as well as documentary evidence in support of their respective pleas. ;