ANANT LAL GOEL Vs. PREM SHANKER AGARWAL

JUDGEMENT

(1.) THE plaintiff-appellant, Anant Lal Goel is the owner of the premises numbered 85-D and 85-E, K. P. Kakkar Road, Allahabad. The upper portion of the bonding, 85-D, is used by the appellant for residential purposes. 85-E consists of three shops on the ground floor. One out of the three shops on the ground floor was let out by him to the respondent under a registered lease deed dated 30-8-1951 for a period of three years with effect from 1-9-1951 on a monthly rent of Rs. 75/-. Admittedly, the respondent continued to remain in occupation of the shop as a month to month tenant on the same rent after the expiry of the period of three years. The landlord by notice dated 10-4-1961 (Ex. 1) terminated the tenancy and filed a suit for ejectment, arrears of rent and damages for use and occupation at the rate of Rs. 75/-. This suit was decreed by the trial court in to. The trial court's decree has been reversed by the lower appellate court and the entire suit has been dismissed. The landlord has filed this second appeal praying that the trial court's decree be restor ed.

(2.) ACCORDING to the appellant, the shop in question was under erection on 1-1-1951 and, the construction-work having been completed after that date, the provisions of the U. P. (Temporary) Control of Rent and Eviction Act, 1947 (hereinafter called the Act) are not applicable to the case by virtue of Section 1-A thereof. The trial court accepted this plea. The lower appellate court has, however, held that the shop was not under erection on 1-1-1951 and that all the material construction work had been com pleted before that date. It is, therefore, an accommodation to which the Act applied. The main point for decision in this appeal is whether the provisions of the Act apply to the case or not.

(3.) THE learned Solicitor General, however, submitted on appellant's behalf that the finding being in respect of a jurisdictional fact its correctness can be questioned even in second appeal. The appellant according to the learned counsel, had otherwise fully esta blished his legal right to the reliefs sought by him; the lower appellate court by record ing an erroneous finding held that the provi sions of the Act applied to the shop and failed to exercise its jurisdiction and power as a civil court by mis-applying Section 3 of the Act to the case. In support of this con tention, reliance was placed on two Supreme Court decisions: (1) Chaubey Jagdish Prasad v. Ganga Prasad Chaturvedi, AIR 1959 SC 492; (2) Roshan Lal v. Ishwar Dass, AIR 1962 SC 646. Reliance was also placed on two deci sions of Dhavan, J., - (1) Jai Narain Tandon v. Ram Kishan Das, 1965 All LJ 794 and (2) Khiya Ram v. Prabha Devi, 1965 AH LJR 1045 - in which the learned Judge expressly held that a finding on a question whether a building was constructed before or after January 1, 1951 being a finding in respect of jurisdictional fact can be interfered with even in second appeal.