VINOD KUMAR AND OTHERS Vs. RAHMAT ALI

JUDGEMENT

(1.) SECOND appeal has been filed against the judgement and decree dated 13.03.2006 passed by Additional District Judge, Meerut dismissing First Appeal No. 302 of 2005 affirming the judgment and decree dated 19.01.2005 passed by Civil Judge(Junior Division) Meerut in Original Suit No. 432 of 1990.

(2.) BRIEF background of the case is that plaintiff-respondents filed suit for ejectment and recovery of arrears of rent for the period from 01.01.1987 to 21.04.1990 alongwith the decree of mense profit for the period from 22.04.1990 to 24.04.1990. It was also mentioned in the plaint that land in dispute described at the foot of the plaint was originally let out to deceased father of the defendants-appellants and after his death, the defendants-appellants became joint tenant of the land owned by Waqf at the monthly rent of Rs. 60/- tenancy beginning from first day of English calendar month and ending on the last day of the same month. It was also mentioned that defendant-appellants were arrears in rent and also defendant-appellants used to park their rickshaws during night hours. It has also been mentioned that privity of contract of tenancy was for open land. Notice was sent terminating the tenancy and thereafter suit in question was filed. Said suit was contested by filing written statement wherein it has been contended that it was ahata in which roofed structure in the shape of cemented room and tin shed was constructed. Property in question was used for parking their rickshaws and carrying out repairs work. Notice was denied and it was contended that suit in question is barred by the provision as contained under U.P. Act No. 13 of 1972. It was also contended that lease deed is perpetual lease in their favour with right to continue tenancy. On the pleadings set out in all seven issues were framed. Both oral and documentary evidence have been led in support of their case. From the side of plaintiffs, plaintiffs himself got examined as PW-1, and PW-2 Rais Ahmad, while defendant no. 1 got himself examined as DW-1. Trial court on the basis of oral documentary evidence as well as after taking into account the contents of amin report decided issues no. 1 against the plaintiffs-respondents. Issue no. 2 was decided in favour of the defendants-appellants. Issue no. 6 was decided against appellant. Issue no. 3 was decided against defendant-appellant. Similarly issue nos. 4 and 5 were decided against appellant. Suit in question was decreed with the direction to defendants-appellant to vacate the property in suit within two months and further to pay arrears of rent. Aggrieved against the said order appeal in question was filed and after appeal in question filed, plaintiffs-respondents has preferred cross objections on the ground that mense profit ought to have been included, as such decree in question warrants modification to such extent. Said appeal has been dismissed. Thereafter present second appeal has been filed.

(3.) COUNTERING the said submission Sri Ayub Khan, Advocate, representing respondents contended that the provisions as contained under U.P. Act No. 13 of 1972 are not at all applicable and in the present case after giving notice under Section 106 of Transfer of Property Act suit in question has been instituted and both courts below have rightly decreed the same and as such no interference is required.