KHIYA RAM Vs. PRABHA DEVI AND ANOTHER

JUDGEMENT

(1.) This is a tenant's second appeal from the decree of the Civil Judge of Kanpur reversing that of the Munsif Kanpur and decreeing the landlords' suit for his ejectment from a shop in Kanpur. The only point urged in favour of this appeal is that the suit for ejectment was incompetent as the permission of the District Magistrate under Section 3 of the U.P. Control of Rent and Eviction Act had not been obtained before it was filed. The Plaintiff Respondents' reply to this contention is that the house having been constructed in 1952, the aforesaid Act does not apply to this case and therefore the permission of the District Magistrate was unnecessary. The only point to be decided by me in second appeal is whether the finding of the lower appellate court that the house was constructed in 1952 and therefore no permission from the District Magistrate was required for filing a suit for ejectment is erroneous. But it is necessary to give a brief resume of the essential facts which had led to this suit. There is a building known as No. 48/183 Generalganj Kanpur. It was purchased on 3rd May 1956 by the two Plaintiffs Prabha Devi and Jineshwari Devi who are sisters in law by marriage-their husbands being brothers. The seller was one Shikhir Chand who had purchased it in 1950. The Plaintiffs case is that Shikhir Chand bought the house in a very dilapidated condition and decided to demolish it and reconstruct a new house in its place. They alleged that the construction of the house was completed towards the end of 1952 after which the Defendant Appellant Khiya Ram was admitted by Shikhir Chand as a tenant of the shop in the ground floor of the newly constructed building. Shikhir Chand had to borrow money to build the new house and executed a mortgage of the house in favour of the previous owner. The rate of the interest was heavy, being 1 per cent per month, compound. He was unable to pay off this debt and ultimately compelled to sell the house to the two Plaintiff in May 1956. Within two weeks of the purchase the Plaintiffs served a legal notice on the Appellant Khiya Ram terminating his tenancy and asked him to vacate the shop after paying the arrears of rent. The notice plainly stated that the house being new it was not subject to the provisions of the U.P. Control of Rent and Eviction Act and the new landlords were competent to eject the tenant if they so desired. Khiya Ram rejected the notice as invalid and denied that the house was a new construction. He alleged in his reply that the previous owners had merely carried out heavy repairs which did not have the effect of exempting the accommodation from the Control of Rent and Eviction Act. As he refused to quit the landlords filed this suit for his ejectment.

(2.) Both sides led evidence, oral and documentary. The Plaintiffs produced Shikhir Chand the previous owner who had made the constructions. This witness was examined on commission on the ground that he was stricken with tuberclosis and could not attend court. He deposed that at the time when he bought the building for a sum of Rs. 9000/- it was dilapidated, and after demolishing it and constructing a new one in its place he sold it lor a sum of Rs. 18000/- to the Plaintiffs. The evidence of the other witnesses for the, Plaintiffs is not of much value as, in my opinion, it is either biased or hear-say. The case of the Plaintiff must stand or fall by the testimony of Shikhir Chand and the documents which have been produced in support of it. The important documents are the two mortgage deeds executed by Shikhir Chand in favour of his creditor in 1952 and 1954 respectively. In one of them it was mentioned in the recitals that Shikhir Chand needed money for constructing a new house in the place of the old one which he had demolished because it was in a dilapidated condition. The Defendant also produced several witnesses in support of his allegations that Shikhir Chand did not construct any new house nor did he demolish the old house but merely repaired it at an extensive scale. He also appeared as a witness himself. It is not necessary for me to consider the evidence of the Defendant's witnesses as, after it was read out before me, learned Counsel for the Defendant-Appellant had to concede that almost all of it was hearsay or irrelevant. The trial court did not believe the Plaintiff's story and held that no new house was constructed and therefore the U.P. Control of Rent and Eviction Act was applicable to the accommodation. As it was common ground that no permission of the District Magistrate was obtained before the suit was filed and the suit did not come within any one of the exceptions specified in Section 3, it dismissed the suit. On appeal the learned Civil Judge disagreed with the trial court's assessment of the Plaintiffs' evidence and held that there was no reason to disbelieve Shikhir Chand's testimony. He held that the Plaintiffs had established that a new house was constructed by Shikhir Chand in 1952 and therefore by virtue of Section 1A of the U.P. Control of Rent and Eviction Act the accommodation was exempt from the operation of the Act. Accordingly he allowed the landlord's appeal and passed a decree for the ejectment of the Appellant who has come to this Court in second appeal.

(3.) The question is whether on these facts, the accommodation is exempt from the controls imposed by the Control of Rent and Eviction Act. This in turn depends upon whether the accommodation was constructed after 1st January 1951. Section 1A of the Act provides: "Nothing in this Act shall apply to any building or part of building which was under erection or was constructed on or after 1st of January, 1951.'' Mr. Pratap Kumar who appeared for the Appellant argued that Section 1A does not apply to a house which was repaired, even if the repairs were on an extensive scale, and carried out after the prescribed date. For the purpose of this argument, he assailed the finding of the lower appellate court that the house was demolished and a new house constructed in its place, and contended that the constructions were repairs. At the outset, a preliminary objection was made by Mr. Ambika Prasad learned Counsel for the Plaintiff Respondents that the finding of the first appellate court that the old building was demolished in 1952 and a new one constructed in its place is one of fact and can not be reviewed in second appeal. Learned Counsel further argued that if this finding was binding on this Court, as it must be, the question whether the building was constructed after 1st January 1951 was not in controversy. Learned Counsel relied on my own decision Preetam Das v. Satya Narain,1964 AndhWR 462 in which it was observed that in all cases where portion of the old building were included in a building constructed after 1st of January 1951 the courts in determining whether such a building should be regarded as having been constructed after the prescribed date should decide the question as one of fact and in doing so "it should consider all the relevant and material circumstances such as the expenses incurred in the new construction, the value of the old portion and the saving effected by making it a part of the new, and so on. What are material facts depends upon the circumstances of each case.'' Learned Counsel relied on the words "the courts should decide the question as one of fact," and contended that this observation must govern the controversy in the present suit and the finding of the learned Judge that Shikhir Chand constructed a new house in place of the old must be treated as one of fact.