MOHAN Vs. STATE OF U P

JUDGEMENT

(1.) This appeal was taken up as fresh on 19.10.2011. On the said date learned counsel for the appellant was directed to supply a compilation of the appeal to the learned standing counsel for State of U.P., the sale respondent which was accordingly done. Thereafter, on 20.10,2011 learned counsel for the appellant as well as learned standing counsel for the respondent were heard on delay condonation application as well as merit of the appeal. Delay of 7 days in filing appeal was condoned and arguments on the merit of the appeal at admission stage were heard and order was reserved. This is defendant's Second Appeal arising out of O.S. No. 1303 of 1992 filed by respondent State of U.P. through Executive Engineer Irrigation Department, Khand, Moradabd. The suit was filed for possession and was decreed on 13.12.2010 by Civil Judge (J.D.) Nagina, District Bijnor. Against the said judgment and decree defendant appellant filed Civil Appeal No. 23 of 2011 which was dismissed on 28.5.2011 by A.D.J. Court No. 5 Bijnor hence this Second appeal.

(2.) A very large area including land in dispute which is quite small in area was acquired under Land Acquisition Act for constructing colony for employees of the Irrigation Department and a connecting road. Plaintiff was having a wooden shop (khoka) over part of the acquired land adjoining to the road which had been constructed after acquisition. Proceedings for plaintiffs eviction were initiated under U.P. Public Premises Eviction of Unauthorised Occupant Act 1972 (U.P.P.P. Act of 1972). In the said proceedings a compromise was arrived at and plaintiff was permitted to continue to keep his wooden shop/ Khoka over the land in dispute and he was treated to be a tenant of the land over which khoka was placed @ of Rs. 25 paisapersq. meter w.e.f. 12.6.1979. Plaintiff who was opposite party in the proceedings under U.P.P.P. Act (case No. 445, State v. Mohan Singh) filed compromise copy of which is Annexure 5 to the affidavit filed in support of Stay application. This application was signed only by Mohan the opposite party in case No. 445. In the said application it was mentioned that compromise had been arrived at according to which opposite party (Mohan) would pay rent/damages of the land @ of 25 paisa per sq. meter from 12.6.1979 within one month and the department would execute a lease deed (Patta) @ Rs. 25 paisa per sq. meter and opposite party would continue to pay agreed rent to the department. On the said application on behalf of State applicant 'no objection' was written. Accordingly Prescribed Authority/S.D.O. Nagina passed an order on 30.1.1985 in the said case under U.P.P.P. Act to the effect that application of compromise should be included in the file and the case is decided In accordance with the same.

(3.) In the suit giving rise to the instant Second appeal it was contended by the plaintiff State of U.P. that the agreed rent was paid only till March 1986 and that in October 1990 the defendant over the land in dispute ad measuring 11 meter by 7.8 meter constructed two khan (Portion) pukka shop and was intending to make further construction towards south of the said shop in the form of Varanda. The defendant admitted that he had made permanent construction however, he denied that he intended to make further construction of a Varanda. Defendant appellant further pleaded that initially he was doing the business of selling tea etc. from khoka kept over the land in dispute, however, as his goods had been stolen twice or thrice hence he was compelled to make pukka construction for the safety of his goods in the shop. The version of the defendant that he had paid Rs. 1000/-as rent from April 1986 on wards was not found correct by the courts below. In any case mere non-payment of rent does not amount to termination of tenancy automatically and in the suit also it was not made ground of eviction.