RAJESH KUMAR ALIAS KALLU Vs. RAKESH KUMAR

JUDGEMENT

(1.) PRESENT JSCC Revision has been filed against the judgment and decree dated 22. 11. 2008 passed by IInd Additional District Judge, Jalaun at Orai in JSCC Suit No. 8 of 2004 (Rakesh Kumar and others Vs. Rajesh Kumar) decreeing suit for ejectment.

(2.) BRIEF background of the case is that Rakesh Kumar and others who are landlords of premises in question namely shop no. 70/04 situated at Mohhalla Baldau, Chowk (Sarafa Bazar) Qasba Orai District Jalaun instituted suit mentioning therein that premises in question is not at all covered under the provision as contained under U. P. No. XIII of 1972 and shop in question had been taken on rent at the rate of Rs. 600/- per month apart from water tax which was to be paid separately and w. e. f. 01. 05. 2007 no rent was paid and in spite of service of notice on 01. 09. 2004 amount in question was not paid and thereafter suit has been filed for arrears of rent and ejectment. Said suit was contested by defendant-tenant-revisionist by contending therein that notice which sent was illegal rate of rent was Rs. 450/- per month and water tax was not the liability of tenant and further provision of U. P. Act No. XIII of 1972 are not applicable and further suit in question has been filed on totally unsustainable ground. Thereafter from both the respective sides evidence has been led and Principal issue which arose is as to whether provision of U. P. Act No. XIII of 1972 are applicable or not ? Judge Small Causes Court has concluded that provision of U. P. Act No. XIII of 1972 are applicable and tenancy in question has been terminated and based on the same arrears of rent has been found and the suit has been accordingly decreed. At this juncture present JSCC Revision has been filed. Sri Alok Kumar Yadav, appearing for defendant-tenant-revisionist contended with vehemence that in the present case Judge Small Causes Court has clearly erred in law qua the applicability of the provision as contained under U. P. Act No. XIII of 1972 where as defendant-tenant-revisionist has brought on record the assessment from year 1978 till 1992 of the building and it was also proved by certain assessments filed by plaintiff/respondent wherein it was indicated that prior to 1985 the building in question was recorded as Khandar was also manipulated and ignoring all these important circumstances perverse finding has been recorded, as such on this score said finding of fact are liable to be reversed that that provision of U. P. Act No. XIII of 1972 are not applicable and protection envisaged under U. P. Act No. XIII of 1972 be extended then by notice simplicitor under Section 106 of Transfer of Properties Act suit cannot be decreed, as such Revision in question deserves to be allowed.

(3.) COUNTERING said submission Sri Sharad Malviya, Advocate appearing on behalf of landlord contended that as per provision as contained under proviso of Section 2 (2) of U. P. Act No. XIII of 1972, map in question was sanctioned in the year 1986 and assessment of the same was done after year 1985, in this background once after appreciation of evidence rightful decision has been taken qua the applicability of U. P. Act No. XIII of 1972 then in exercise of Revisional authority this Court should not act as appellate authority, in this background present JSCC Revision as it has been framed and drawn is liable to be dismissed.