MOHD ZAKARIA Vs. ISHRAT BEGUM

JUDGEMENT

(1.) HEARD learned Counsel for the parties on the point of admission for hearing and perused the judgment of the Courts below, pleadings of the parties and other relevant documents and have perused the original record of the Courts below.

(2.) ENDEAVOUR has been made in order to ascertain whether any substantial question of law is involved in the present second appeal so as to admit for hearing.

(3.) FROM perusal of the record it is evident that the respondent plaintiff smt. Ishrat Begam instituted Original Suit No. 286 of 1981 Smt. Ishrat Begam v. Mohd. Zakaria in the Court of Munsif West, Allahabad for ejectment of the defendant appellant from the plot described at the foot of the plaint. Damages as well as pendente lite and future damages has also been claimed. It has been alleged in the plaint that plaintiff respondent is the sole owner and land lady of plot No. 202/204 situated at Mohalla Mutthiganj, Allahabad and this plot in dispute has no structure and hence does not come in the definition of the building under the provision of U. P. Act No. 13 of 1972 and hence this Act is not applicable to the property in dispute. The defendant was the tenant of this plot at the rate of Rs. 100/- per month on behalf of the plaintiff-respondent. That the defendant appellant is carrying on the business of bans balli in the property in dispute. That by notice dated 3. 1. 1981 the tenancy of the defendant was terminated. The suit was contested by the defendant-appellant and it has been denied that the U. P. Act No. 13 of 1972 is not applicable to the property in dispute. However, it has been admitted that appellant defendant is the tenant of the property in dispute. It has further been alleged that this property in dispute has got structure almirah, shed, pakka bathroom and urinal and in this structure defendant used to store his valuable and stock and also has got the office. In the record of Nagar Mahapalika this property has been recorded as premises and not as plot. That the Act No. 13 of 1972 is fully applicable to the property in dispute. Hence the suit is not maintainable in the Civil Court. That defendant appellant had been regularly paying the rent to the plaintiff respondent and the plaintiff respondent had been trying to fabricate and manipulate ground for ejectment and the plaintiff intentionally and knowingly refused to receive the rent and consequently the rent was deposited in the Court, The notice is also defective. Both the parties produced evidence in the Trial Court and the learned Trial Court vide judgment and order dated 18. 4. 1985 dismissed the suit of the plaintiff-respondent. Being aggrieved from this judgment and decree of the Trial Court, the plaintiff-respondent institued Civil Appeal No. 227 of 1985 Smt. Ishrat Begam v. Mohd. Zakaria and the appeal was decided vide judgment and decree dated 11. 10. 1996 passed by the then IInd Additional district Judge Allahabad and the appeal was allowed and judgment and decree of the Trial Court was set aside and the suit instituted by the plaintiff respondent for ejectment and recovery of arrears of rent and expenses for use and occupation was decreed and being aggrieved from this judgment and decree of the appellate Court the second appeal has been instituted by the appellant-defendant.