NARAIN KUMAR Vs. ONKAR NATH AGARWAL

JUDGEMENT

(1.) THE defendant appel lant, Narain Kumar, took on rent a power machinery run by electricity fixed in a building at Rs. 70/- per month for a period of eleven months from the plaintiff respon dent who was the owner of the said machine and building. The defendant signed a docu ment on a stamp-paper of rupees twelve which is a 'Kabuliyat' containing the terms on which he took the power machine and the building on lease. It shows that the de fendant agreed to pay Rs. 70/- per month as the rent for the power machine and the building in which it was installed. The de fendant was to pay for the electricity con sumed for running the machine and was permitted to make necessary additions and alterations in the walls of the building and internal structure and when quitting was to restore the machinery and the building in the same condition as when they were leased. The lease was for a period of ele ven months and at the option of the defen dant he could continue to be a lessee on payment of enhanced rent of Rs. 90/- per month. The defendant was at liberty to give up the tenancy rights whenever he wished and leave the premises after handing over possession of the machine and the building in its original shape. The defen dant paid Rs. 210/- as three months' rent in advance. The plaintiff delivered posses sion of the machine and the building to the defendant on 6-12-1958. On the expiry of eleven months in November, 1959 the defendant continued to operate the machine and retain the building on payment of Rupees 90 per month. On 18-11-1967 the plaintiff served a notice on the defendant demanding from him arrears of rent from 6-8-1967 to 5-11-1967 and terminated the tenancy. The defendant in December 1967 remitted a sum of Rs. 180/- towards the arrears of rent by money order which was refused by the plaintiff. It appears that the plaintiff did not take any further action on the basis of said notice. Then on 27-1-1968 a second notice was caused to be serv ed on the defendant by the plaintiff de manding arrears from 6-8-1967 to 27-1-1968 and terminating the tenancy on the expiry of six months from the date of the receipt thereof. The defendant was asked to hand over possession of the machine and the building. The defendant not having complied with the said notice, the suit giv ing rise to this appeal for his eviction and for recovery of the arrears of rent and damages was instituted by the plaintiff.

(2.) IT was alleged by the plaintiff that the building in which the machine was installed was constructed in 1956, hence the provisions of U. P. Act in of 1947 were not applicable and the suit for eviction would be filed without obtaining any permis sion from the District Magistrate. It was also alleged that the defendant defaulted in paying the arrears and a legal notice under Section 106 of the Transfer of Property Act was duly served on him terminating the tenancy.

(3.) BOTH the courts below have re corded a concurrent finding that Rs. 210/-paid in advance as three months rent under the terms of the lease was to be accounted for when the defendant vacated the premises, hence that sum could not be treated at that stage towards payment of rent, thus the defendant was in arrears. A concurrent finding has also been recorded to the effect that the Kabullyat which is a unilateral document signed by the defendant was not a document of lease and there being no registered document of lease creating a ten ancy for a period of more than one year, the plaintiff was entitled to determine the tenancy by a notice to quit.