JAI DUTT JOSHI Vs. LAXMI DUTT BHATT

JUDGEMENT

(1.) The only question involved in this appeal is whether the finding recorded by the court below that the accommodation in dispute was a part of the building constructed after the year 1951, which admittedly is a finding of fact, is vitiated by any error of law or procedure. The appellant was the tenant of the plaintiff in the disputed accommodation in the ground -floor of the building and carried on a sweetmeat shop. The plaintiff sued for the eviction of the defendant tenant after serving upon him a notice to quit. It was alleged by the plaintiff, inter alia, in his plaint that the shop in dispute was a part of the building constructed by the plaintiff in the year 1953. The defendant tenant, amongst others, raised a plea that the accommodation in dispute being a pre -1951 construction was subject to the provisions of UP (Temp.) Control of Rent and Eviction Act, 1947 and the suit of the plaintiff was barred. One of the issues tried in the court below was whether the accommodation in question was a post -1951 construction. The parties led oral and documentary evidence. The trial court found on the evidence on record that only some alterations were made in the building of which the shop was a part, in the ground -floor and these alterations were not such as to amount to altogether a new construction, hence to the accommodation the provisions of Rent Control Act were attracted and the plaintiff's suit was barred. The appellate court reversed this finding and on other issues having found in favour of the plaintiff decreed the suit for eviction. Sri L.M. Pant, learned counsel for the defendant appellant, contended that the plaintiff having come to Court with the plea that the old building in which the shop of the defendant was carried on having been razed to the ground and in its place altogether a new building, four -storeyed house, was constructed, ought to have proved his case before the suit could be decreed and the court below on a case which was not set up by the plaintiff erred in decreeing the suit. The submission was that it having been found that the old foundations were not dug up and one of the walls of the old building remained standing, the case of the plaintiff as set up in the plaint was not made out. No doubt taking a pedantic view of the pleadings in the plaint, the argument raised on behalf of the defendant appellant certainly appears to be plausible, but I do not think I should take so strict and narrow a view of the pleading for non suiting the plaintiff. The parties knew what the case of each other was and adduced evidence. The oral and documentary evidence of the plaintiff was believed by the court below. The plan Ext. 9 on record clearly shows that unless the whole of the old building was demolished the building as it stood after 1953 could not have been constructed. It is not a case where two more floors can be said to have been added to a pre -existing building. Merely one of the walls which on the evidence on record appears to be a joint wall was not demolished and was part of the building will not, to my mind, affect the situation when it has been found that in its plan, in its details and in the technique of its construction it is a new structure which has come into existence. As to the shop in dispute it has been found that now it has only one door, the height of the plinth has been reduced, its three walls have been newly constructed and a new ceiling has been constructed at a higher level. I agree with the finding of the learned Judge of the court below that the shop in dispute is wholly a new constriction. Further there is evidence, which has been believed, that in 1953 the defendant who had been a tenant of the plaintiff from sometime earlier in the shop in the old building left and then again in the year 1957 became a tenant in the disputed shop. That will also show that there was a fresh tenancy in 1957 in a building which was constructed in 1957.

(2.) * * * I do not find any merits in this appeal and dismiss it. In the circumstances of the case, I make no order for costs.