CHANDRA PRAKASH BHATT Vs. GALIB KHAN

JUDGEMENT

(1.) LANDLORD has filed present writ petition assailing the judgment and decree dated 28.05.2004, passed by the Civil Jude, Senior Division, Pauri Garhwal whereby J.S.C.C. No. 10 of 2001, Chandra Prakash Bhatt Vs. Ghalib Khan and another was dismissed as well as judgment and decree dated 21.07.2005, passed by the District Judge, Pauri Garhwal whereby S.C.C. Revision No. 11 of 2004 was dismissed.

(2.) BRIEF facts of the present case, inter alia, are that admittedly plaintiff/petitioner herein is the landlord of the shop in question. It is also admitted that defendant /respondent No.1 herein was inducted by the plaintiff/petitioner as tenant in the shop in question initially @ Rs.800/ - p.m., however, with the consent of both the parties, it was later on enhanced to Rs.1,200/ - p.m.. Undisputedly, plaintiff petitioner issued one notice on 02.05.2001 to the tenant respondent No.1 herein under Section 106 of the Transfer of Property Act terminating the tenancy of the tenant / respondent No.1 herein on expiry of 30 days from the date of receipt of the notice specifically stating therein that shop in question was constructed in the year 1989, therefore, it was not covered by the provision of U.P. Act No. 13 of 1972. Service of notice is not denied by the tenant. Plaintiff/petitioner herein thereafter filed Suit No. 10 of 2001 in the Court of J.S.C.C./Civil Judge (J.D.), Pauri Garhwal for the recovery of arrears of rent as well as for the eviction of the tenant wherein defendant filed his written statement. Suit so filed was dismissed by the Trial Court and thereafter revision was preferred which also came to be dismissed. Therefore, present writ petition.

(3.) UNDISPUTEDLY , plaintiff in his notice under Section 106 of the Transfer of Property Act dated 02.05.2001 specifically stated that shop in question was constructed in the year 1989 and having received such notice, defendant/tenants did not care to deny that that building was constructed in the year 1989. Plaintiff has taken a specific plea in paragraph No. 7 of the plaint that shop in question was constructed in the year 1989. Defendant in his written statement in paragraph no. 26 pleaded that it was wrong to say that building was constructed in the year 1989 rather building was constructed twenty years before, therefore, provisions of U.P. Act No. 13 of 1972 were applicable on the building in question. It is important to mention herein that defendant did not plead in which year building was constructed. On the other hand, plaintiff has taken a specific stand that building was constructed in the year 1989.