PHOOL BADAN VERMA Vs. RAM BADHAEE AND ORS.

JUDGEMENT

(1.) THE present revision under Section 25 of Provincial Small Cause Courts Act, 1887 has been filed by the defendant tenant of SCC Suit No.4 of 2000 against the judgment and decree dated 13th of April, 2007 decreeing the suit in part for ejectment of defendant no.2 who is applicant in this revision and for recovery of arrears of rent since April, 1999 to April, 2001 at the rate of Rs.450/- per month, cost of Rs.440/- towards the notice. The decree furthe provides that in addition to the above, the said defendant is liable to pay mesne profit till the actual delivery of possession at the rate of Rs.450/- per month to the plaintiff no.1.

(2.) RAM Badhaee and his mother Smt. Mahesha Devi instituted suit No.4 of 2000 against Ashok Kumar Verma and his father Phool Badan Verma, the defendants no.1 and 2 on the pleas inter alia that the shop situate in house No.227, known as Mahesha Bhawan, Mohalla Sahadatpura, District Maunath Bhanjan was let out on a monthly rent of Rs.2500/-. It was stated that the said shop was taken on rent by Ashok Kumar Verma in pursuance of a Kabuliyatnama executed by him. The building wherein the shop in dispute is situate is a "newly constructed" building and it was assessed to municipal tax for the first time in the year 1999 and as such the provision of the U.P. Act No.13 of 1972, are not applicable. In addition, the rent being more than Rs.2,000/- per month, the provisions of the aforesaid Act are not applicable even otherwise also. The defendants no.1 and 2 being son and father colluded with each other and in spite of expiry of the period as fixed in the Kabuliyatnama dated 15th of January, 1996 and 2nd of January, 1997 has not vacated the disputed accommodation and has set up his father as a tenant. A suit No.1245 of 1999: Phool Badan and others Vs. Mahesha and others was filed for permanent injunction on the allegations that Phool Badan Verma is the tenant of the said shop and in order to prove the tenancy, telephone connections etc. were taken in the name of Phool Badan Verma. Shri Phool Badan Verma is claiming tenancy rights in pursuance of the oral agreement. The tenancy of the defendants has been terminated by giving to them a joint notice dated 31st of August, 2000 which has been served. It was further stated that it is plaintiff no.1, who is the exclusive owner and landlord of the said property, raised the constructions out of his own funds and neither the plaintiff no.2 nor her other sons have any right, title or interest therein. The notice dated 31st of August, 2000 was served on 2nd of September, 2000 but the defendants failed to vacate the disputed accommodation in spite of the expiry of the notice period and as such are entitled to get the pendente lite and future damages at the rate of Rs.2500/- per month till the date of actual delivery of possession.

(3.) THE defendant no.2 in his separate written statement pleaded that the rate of rent was Rs.450/- per month and claims himself as tenant of the disputed shop and also admitted the filing of the suit No.1245 of 1999 for permanent injunction. The plea of the default raised in the plaint was controverted and denied. It was further pleaded that the disputed shop was constructed in the year 1984 and since then he is continuing as tenant as such provisions of the U.P. Act No.13 of 1972 are applicable. The property was purchased by the plaintiff no.2 by means of sale deed dated 31st of August, 1981 and the map for raising the construction was got sanctioned on 23rd of November, 1984 and after making the construction the shop was let out in December, 1984. He claimed that he is tenant on behalf of the plaintiff no.2. Further, it was pleaded that a sum of Rs.50, 000/- was deposited as advance with the plaintiff no.2 with the understanding that the said amount shall be refundable at the time of vacation of the disputed shop.