RAJ KUMAR Vs. GOPI NATH VARMAN

JUDGEMENT

(1.) THIS is a defendants' appeal from the appellate judgment and decree of the learned Additional Civil Judge, Mirzapur, by which he reversed the decree of dismissal of the plaintiff's suit by the learned Additional Munsif Mirzapur, by al lowing the appeal and decreeing the plain tiff's suit for dispossession of the defendants from a small shop situate in the town of Chunar.

(2.) THE disputed shop admittedly is a portion in the north west corner of the larger building of which the plaintiff-res pondent is the owner. It appears that the plaintiff acquired the premises in the year 1956 by a gift from his father Raghunath. At that time the premises were kachcha covered by khaparail. The defendants' grand-father and grand uncle were the te nants in a portion of the said premises and in the north west corner thereof carried on a betel shop. Sometime in 1956 the pre mises being in a bad state of repairs fell down and the plaintiff re-constructed the premises as pucca. It further appears that when the premises fell down the betel shop carried on by the defendant's predecessor was shifted to a temporary gumati nearby and when the re-construction had suffi ciently been completed the defendants' father Panna Lal occupied the north west portion of the freshly constructed premises and carried on the usual betel shop. It has come on record that the plaintiff had made an application to the Municipal Board of Chunar in the year 1955 for permission to re-construct the premises. The sanction was granted by the Municipal Board in Decem ber, 1955. The plaintiff on 11-1-1957 brought a suit against the predecessor of the defendants in the court of Small Cause, Mirzapur for recovery of arrears of rent with effect from 7-10-1955 to 6-10-1956. He alleged in that suit that the defendants were the tenants in occupation of the shop and were in arrears.' The defendants in that suit, the predecessors of the present defendants, raised a contest in that suit and pleaded that they were not liable to pay any rent after 8-7-1955 as they had to vacate the shop it having fallen down and the plaintiff having not carried out the terms of the agreement that he will re-erect the shop and will give possession of it to them. It is not disputed that when the above suit was filed the fallen shop had not been re-constructed. This suit was decreed to the extent of admission by the defendants of that suit, that is, for recovery of rent up to 8-7-1956. The plaintiff thereafter ap pears to have carried the re-construction operations and it is not known from the record when the same were really complet ed. In fact the plaintiff alleged in his plaint in the instant suit that on 1-9-1964 when the shop had not been completely re-cons tructed Pannalal, father of the defendants-appellants, trespassed and took forcible pos session. It is also found on the record in the shape of certified copies of the orders that between Pannalal and the plaintiff there were proceedings in the court of the Mun-sif for the deposit of rent under Section 7-C of U. P. Act III of 1947 and for directions for repairs under Section 7-E of the said Act. These proceedings are from the years 1964 to 1966. The last order which was passed by the learned Munsif under Section 7-E of the said Act is dated 10-12-1966 directing Pannalal as the tenant to carry on repairs by incurring costs to be recoverable from the plaintiff as the landlord. Soon after the plaintiff commenced the suit which has given rise to this appeal against Pannalal as by that time Pannalal's father and uncle had died and prayed for a decree of possession. He alleged that in July 1956 when the premises had fallen down the tenants, that is, father and uncle of Pannalal left, and then the plaintiff started re-constructions but before they could be completed Pannalal took forcible possession of the north-west corner without any right and he was liable to be ejected. Certain sum of money as mesne profits for wrongful use and occupation was also claim ed. During the pendency of this suit Panna Lal died and his two minor sons who are the appellants before me were substituted as defendants.

(3.) IN the pleading of the plaintiff to the effect that in July 1956 when the shop or the premises fell down the predecessors of the defendants left the shop, the words used were: "Chhor diya". The plaintiff was rightly asked to clarify his pleading. On 11-9-1967 the plaintiff made a statement under Order X of the C. P. Code. There in he stated that in July 1956 when the shop fell down Vishwanath, the father of the defendant Panna Lal, approached the plaintiff when nobody else was present and told him that he was surrendering the tenancy and no rent be charged from him after that date. It is clear from this statement of tho plaintiff that he pleaded an express sur render of the tenancy by the predecessors of the defendants in July 1956. On the plead ings of the parties the learned Additional Munsif as best he could, struck certain issues. I am constrained to observe that had the learned Munsif applied his mind with certain amount of precision expected from him and had he received efficient as sistance from the lawyers, better and more specific issues could have been framed which would have been conducive to a more satis factory disposal of the suit.