SHOBHA RAM Vs. IIND ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) TO assail the order of revising authority, decreeing opposite party's suit for ejectment as petitioner in contravention of terms of tenancy raised 'pacca' construction in place of Wooden khoka let out to him in 1970, learned counsel for petitioner made three submissions one that the revising authority had no jurisdiction under Section 25 of Small Causes Courts Act to interfere with finding of fact ; second the construction having been raised with consent of opposite party, petitioner was entitled to protection under Section 29-A of the Act XIII of 1972 and last provision Act XIII of 1972 were not applicable.

(2.) NONE of these submissions have any merit. They have been raised divorced of the facts. It was never claimed by petitioner that pacca construction was raised with consent of opposite party. Learned counsel after reading from uncertified copy of written statement and oral evidence which was produced by him had to concede this lacuna in his case. It was never the case either of landlord or of the petitioner that the constructions were raised with his consent. In the circumstances the trial Court committed a manifest error of law in making out a new case recording a finding in a favour of the petitioner on the assumption that both the parties had not come with full facts. It was open to the trial Court to get the pleadings clarified, but in absence of it, he could not have made out a new case in favour of the petitioner and recorded a finding that the constructions were raised by the petitioner with the consent of the landlord for which as stated earlier, neither there was any pleading nor there was any evidence.

(3.) IT was then vehemently urged that provisions of Act No. XIII of 1972 were applicable and, therefore, the suit filed by the landlord was not maintainable. It was clearly alleged in the plaint that as the petitioner has raised new constructions in place of wooden khoka, the provisions of the new Act were not applicable. No specific plea was taken in the written statement about the applicability of the Act. Even otherwise provisions of sub-section (2) of Section 2 of the Act excludes certain buildings from operation of the Act. Sub-clause (b) of Explanation I to it provides that construction includes new construction in place of an existing building which has been wholly or substantially demolished. In other words it having been established that wooden khoka was demolished and entirely new construction was raised in its place, it shall be deemed to be new construction within these sub-clauses and, therefore, before the provision of Act No. XIII of 1972 could apply period of 10 years should have elapsed. The constructions have been found to have been raised some time in the year 1974-75 and the suit was filed in 1978 it is obvious that provisions of Act No. XIII of 1972 were not applicable.