RAM BALI PANDEY Vs. II ADDITIONAL JUDGE KANPUR

JUDGEMENT

(1.) This is landlord's petition arising out of the judgment and order dated 31-7-1992 passed by respondent No. 1 in the revision filed against the judgment and decree dated 12-8-1988 passed by Addl. J.C.C. Kanpur. The revisional Court has allowed the revision and dismissed the plaintiff's suit for ejectment.

(2.) A suit for recovery of arrears of rent, damages and ejectment was filed by the petitioner against Sri A. K. Gaur, the tenant, alleging therein that the defendant was tenant at the rate of Rs. 100.00 per month and he was in arrears of rent from 1-10-1965. The premises were post 1951 construction and hence U. P. Act No. III/1947 did not apply. The tenancy was terminated by serving upon the tenant a notice under Section 106 of the Transfer of Property Act on 10-12-1986. During the pendency of the suit Sri A. K. Gaur died before the enforcement of U. P. Act No. 13 of 1972. His heirs wife and others, present respondents No. 3 to 5 were brought on record. The defence was that roof of the second floor was also included in the tenancy of the tenant and the rent was originally agreed at Rs. 60.00 per month and on the assurance of the plaintiff that he would allow the defendant to take water from the tap on the ground floor, the rent was enhanced to Rs. 100.00 per month. However, on 14-9-66 the plaintiff fixed the door in staircase leading to the roof of the second floor and also curtailed the amenity of tenant to have water from the tap in the ground floor and thus the tenant was entitled to reduce the rent at the rate of Rs. 20.00 per month. The notice of ejectment sent by the petitioner was illegal and invalid. The benefit of Section 39 of the U. P. Act No. XIII of 1972 was also claimed. The trial Court framed a number of issues and on examination of evidence it came to the conclusion that the house in suit was a post 1951 construction and U. P. Act No. III/1947 was not applicable. While answering issues No. 3 and 9 the trial Court held that the suit did notrelate to a portion of tenanted accommodation but to the entire tenanted accommodation and the roof was not included in the tenancy of the tenant. In respect of issues No. 4 and 10 the answer of trial Court was that it could not be said that the plaintiff without any lawful authority had deprived the defendant of the amenity of taking water from the tap on the ground floor and on that ground rent could not be reduced or suspended as alleged by the defendant. Issue No. 5 was decided to the effect that the plaintiff was entitled to damages only at the rate of Rs. 100.00 per month and not at the rate of Rs. 5.00 per day. There was no proof that the defendant had made payment of house tax to the plaintiff and thus issues No. 7 and 8 were decided in the negative. Similarly issues No. 11 and 12 were also decided against the defendant.

(3.) The most important issues involved in the present petition were issues No. 13 and 14 framed by the trial Court which were in the following terms :Issue No. 13 :