DEVI PRASAD Vs. VIDYAWATI ALIAS BIDDO

JUDGEMENT

(1.) This appeal, preferred under Section 100 of Code of Civil Procedure, 1908, is directed against the judgment and decree dated 14-10-1991, passed by learned Additional Civil Judge, Rorkee, in Civil Appeal No. 22 of 1984, whereby the said appeal has been dismissed and judgment and decree passed on 15-2-1984 in Original Suit No. 143 of 1979 by the trial Court is upheld.

(2.) Brief facts of the case are that the plaintiff (appellant instituted original suit No. 143 of 1979, against Sri Bhagwat Prasad (since deceased) pleading that plaintiff got constructed his shop in the year 1965. Said shop has two doors one opening towards east and another towards the north. Over each of these doors towards outside, there is separate shed to protect from rain and sun. Under the north side door there is a Chabutara (a platform). About two and half years before the institution of suit in 1979, Shri Bhagwat Prasad requested and sought licence to do his business of selling 'Paan' (betel) over 'Chabutara' to which plaintiff agreed on payment of licence fee at the rate of Rupees two per day. The defendant started his business over 'Chabutara', by keeping wooden Almirah measuring 6 ft. x 11 inches x 5 ft. 1 inch. It is further pleaded in the plaint that the defendant stopped paying licence fee since 1-3-1977. Meanwhile plaintiff's son who completed graduation in Medical Science by doing his B.A.M.S. started his practice in the plaintiffs shop, and there was inconvenience to him due to defendant's 'Paan' shop at northern door. When asked to leave, defendant started claiming himself to be tenant, on which plaintiff served notice dated 1-5-1979 on the defendant terminating his license and in alternative tenancy on completion of thirty days from service of notice, and thereafter filed the suit for possession and mesne profits at the rate of Rs. 2/- per day.

(3.) The defendant Bhagwat Prasad (since deceased) tiled his written statement denying the contents of the plaint, as stated and pleaded that the 'Paan' shop in question is not 'Chabutara' but a shop bearing municipal number 65(2). It is further pleaded by the defendant that U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 is applicable to the disputed shop. Disputing the allegation of being licensee, the defendant pleaded that he is tenant on rent at the rate of Rs. 30/- per month. Lastly, it is pleaded that the suit is barred by provisions of U.P. Act 13 of 1972 and also that the notice served under Section 106 of Transfer of Property Act, 1882, is illegal. During pendency of suit, Sri Bhagwat Prasad died and his legal representatives were substituted.