SUBHASH CHANDRA Vs. KHAIR KRAYA VIKRAY SAHKARI SAMITI

JUDGEMENT

(1.) Heard learned Counsel for the Appellant.

(2.) This is the Defendant's second appeal. A suit was filed by the Plaintiff/Respondent on the ground that Plaintiff is a Cooperative Society and in Kasba-Khair, District-Aligarh, there are various properties. It appears that the land in dispute, which is open in nature, was given on rent to the Defendant/Appellant in the year 1977 for a monthly rent of Rs. 75/-. The Defendant was always a defaulter and has not paid rent timely, in spite of repeated demand. Further case in the plaint was that without permission of the Plaintiff, a construction has been raised, though open land was given on rent. Then, a notice under Section 106 of the Transfer of Properties Act was given, but in spite of the aforesaid notice, Defendant/Appellant has not handed over the possession, therefore, the suit for arrears of rent and ejectment was filed.

(3.) After receipt of notice, a written statement was filed on behalf of Appellant stating therein that the aforesaid land was given on rent in the year 1977 for a monthly rent of Rs. 75/-and he is doing business of coal. Further, he has not raised construction with the permission of the Plaintiff. The Defendant/Appellant has further stated that he has paid the rent upto September 1985 and rent from October, 1985 to February, 1986, was sent by money order, that was refused by the Plaintiff/Respondent. One of the issue, which was framed was whether the suit is not maintainable under Section 29-A of the U.P. Urban Buildings Act, 1972 in view of the fact that a construction has been made with the permission of the Plaintiff. Issue Nos. 1 & 2 were framed to the effect that whether the suit is hit by Section 29-A of the Act or not and the construction has been made with the permission of the Plaintiff/Respondent or not. The trial court after considering the issues has recorded a specific finding that no document has been submitted by the Defendant/Appellant to the effect that any permission was granted by the Plaintiff for the purpose of raising any construction. The Plaintiff has specifically denied this allegation that the open land was given to the Defendant/Appellant for the purpose of carrying the business of coal, therefore, if any construction has been made, that is illegal and without consent of the Plaintiff/Respondent. As regards the payment of rent, a finding has been recorded that the Defendant/Appellant is a defaulter. As regards the question of consideration of Section 29-A of the Act, a finding has been recorded that suit is not barred in view of the fact that the Defendant has not established the fact regarding permission for raising any construction. Admittedly, the land was an open land, therefore, if any construction has been made, that will be treated to be illegal. The suit was decreed by judgment dated 10.10.2005. The appeal filed by the Defendant/Appellant has been dismissed confirming the findings recorded by the trial court.