ROSHAN LAL KHANDELWAL Vs. JAGDISH CHAND

JUDGEMENT

(1.) THE instant second appeal has been instituted against the judgment of and decree dated 12. 12. 2007 passed by Addl. District Judge, court No. 9. Ghaziabad in Civil Appeal No. 174 of 1994, Dr. Jagdish Chand and others v. Roshan Lal Khandelwal. By the impugned judgment and decree the Appellate Court allowed the appeal of the plaintiff/ respondent and the judgment and decree of the Trial Court dated 15. 7. 1994 passed in O. S. No. 247 of 1987, Dr. Jagdish Chand v. Roshan Lal Khandelwal, were set asided. And the suit was decreed for ejectment of the respondent from the property in dispute. And decree was also passed for recovery of arrears of rent and expenses for use and occupation.

(2.) THE perusal of the judgment and decree of the Courts below shows that the respondent Dr. Jagdish Chand instituted O. S. No. 247 of 1987 for ejectment of the defendant/appellant from the property in dispute fully described at the foot of the plaint. It has been alleged in the plaint that the defendant/respondent is the landlord/owner of a plot situated at village Chikamberpur, district Ghaziabad and the defendant is the tenant of this property at the monthly rent of Rs. 1400/- that as rent was not paid w. e. f. 1. 8. 1986 inspite of demand of several time and serving the notice. Hence his tenancy was terminated vide notice dated 29. 12. 1986 under section 106 T. P. Act. But after service of notice neither the rent was paid nor the possession of the property was delivered, The arrears of rent and expenses for use and occupation were also claimed, The defendant/appellant contested the suit and filed written statement and denied the allegation of the plaint. It has further been alleged that the defendant had never been the tenant on behalf of the appellant of plot as alleged in the plaint. That the defendant was a tenant of building and the rent was paid upto 1986. But rent receipt were not issued from 1. 8. 1986 to 31. 12. 1986. That the building was let out on rent to the defendant in the year 1974. There were three rooms existing in the property in dispute besides bath room. That in the record of the Nagarpalika this property stand recorded as a building. That the provision of U. P. Act No. 13 of 1972 are applicable to the property. That if it may be presumed that the defendant is the tenant of building then also three rooms are existing on the property in dispute from the very inception of the tenancy. And in view of section 29-A the appellant is entitled for the benefit of act No. 13 of 1972. That the suit is liable to be dismissed. That the learned trial Court framed as many as 8 issues on the basis of the pleadings. Both the parties produced oral as well as documentary evidence in support of their contention. And on the basis of the evidence produced by the parties the suit was dismissed by the Trial Court vide judgment and decree dated 15. 7. 1994. On being aggrieved from the judgment of the Trial Court the plaintiffs/respondents filed C. A. No. 174 of 1994, Dr. Jagdish Chandra and others v. Roshan Lal Khandelwal, in the Court of District Judge, Ghaziabad and the appeal was allowed by the Additional District Judge, Court No. 9. Ghaziabad vide judgment and decree dated 12. 12. 2007. And against the judgment and decree of the appellate Court, the second appeal has been instituted.

(3.) I have heard Sri Jitendra Pal Singh Chauhan, learned Counsel for the appellant and Sri M. K. Gupta, learned Counsel for the respondents at length on the point of admission of second appeal. I have also perused the judgments of the Courts below and other evidence filed by the parties on record. It has been argued by learned Counsel for the appellant that the Trial Court dismissed the suit of the plaintiffs/respondents on the basis of the evidence present before the Trial Court. He also argued that before the Appellate Court additional evidence was produced under Order 41, Rule 27 of C. P. C. The respondents filed the certified copy of the documents of Ghaziabad Development Authority (hereinafter called G. D. A.) and statement of Dr. Jagdish Chandra (P. W. 1)was also recorded before the Appellate Court regarding there documents. And on the basis of the evidence produced before the Appellate Court the appeal was allowed and the suit of the plaintiffs/respondent was decreed for ejectment of the appellant/defendant from the property in dispute. It has been vehemently argued by learned Counsel for the appellant that the Appellate court erred in placing reliance on the alleged certified copy of the documents of g. D. A. That firstly, these documents cannot be called as public document as provided in section 74 of the Evidence Act. He also argued that these documents cannot be treated as secondary evidence as provided under sections 63 and 65 of the Evidence Act. And he also cited certain judgments of Hon'ble Apex Court in support of his contention. The learned Counsel further argued that Appellate court recorded the perverse finding to the effect that the property in dispute was a plot at the time of letting out to the appellant. That overwhelming evidence was present on the record to prove that at the time of letting out the property it was building according to definition of U. P. Act No. 13 of 1972. And the suit for eviction was not maintainable before the Trial Court as a regular suit. And that the appellant was entitled for the benefit of section 20 of the act. And alternative plea has also been raised that if the property in dispute is to be presumed a plot then as construction is existing in the property. Hence in view of section 29-A of the Act, the appellant is entitled for the benefit of that Act.