SRI KANT Vs. MOOL CHAND

JUDGEMENT

(1.) Heard Sri Mohd. Sarwar Khan, learned counsel for the defendant-tenant/petitioner and Sri Dharmendra Kumar Dwivedi, learned counsel for the plaintiffs-landlords/respondents.

(2.) Briefly stated facts of the present case are that the plaintiff - Deepchand was the owner and landlord of house bearing Municipal No.246/1 (New No.276/1), Mohalla - Tartala, Pargana - Haveli, District - Jaunpur. There is a shop in the said house in which one Ram Krishna Rokadia (original tenant) was a tenant at a monthly rent of Rs.10/-. After the death of the original tenant, the tenancy was succeeded by his three sons, namely, Purshottam, Ram Niwas and Sri Niwas. The aforesaid original owner and landlord filed a P.A. Case No.16 of 1984 for eviction of the defendant-tenant/petitioner on the ground of his bonafide need of the disputed shop for setting up business. It was stated in paragraph 5 of the Release Application dated 01.08.1984, that the plaintiff No.1 is intermediate pass and trained in electronics and want to do his business, plaintiff nos. 2 and 4 are Karigar (Artisan) of sweetmeat but due to non availability of a shop they are unemployed and plaintiff no.3 is carrying on tea stall on Chabutara (raised platform) of Arya Samaj Mandir. The plaintiff gave details of huge immovable properties and houses owned by the defendant-tenant in Jaunpur City and Malegaon in Nasik. They stated that the defendant no.3 - Sri Niwas is a Government Servant employed as Entertainment Inspector. It has also been stated that the defendants owned a big house at the main road, Mandi Naseeb Khan, Jaunpur, measuring 90 feet x 25 feet in which about 50 shops have been constructed. Thus, briefly on these facts the plaintiffs-landlords/respondents filed the aforesaid P.A. Case No.16 of 1984, under Section 21(1) of the U.P. Act XIII of 1972, which was allowed by the Prescribed Authority by judgment dated 28.07.1986, against which the defendant-tenant/petitioner filed a Rent Appeal No.16 of 1986 which was allowed by judgment and order dated 06.12.2005 and the matter was remanded to the Prescribed Authority. The order of remand was challenged by the plaintiffs in Writ - A No.14687 of 2006, which was dismissed by this Court by Order dated 02.01.2013. During remand proceedings before the Prescribed Authority, the defendant-tenant moved successive applications. One such application was moved for issue of Commission which was ultimately allowed by this Court by order dated 01.10.2015 in Writ Petition No.56071 of 2015 and the Commission submitted his report dated 21.11.2015. In the mean time on 29.07.2015, the defendant-tenant filed an additional written submissions making averment that the Gumti (Kiosk) kept on Chabutara of Arya Samaj for carrying out tea stall by the plaintiff, has been converted in Pakka construction.

(3.) Thereafter on 20.12.2016, the defendant-tenant/petitioner filed an application 380 Ga and also an application 384 Ga for issue of Commission which were rejected by order dated 05.01.2017, passed by the Prescribed Authority/Civil Judge (S.D.), Jaunpur. In the said order the Prescribed Authority observed that earlier a Commission was issued in the year 1985 which submitted its report being paper No.91 Ga and 92 Ga that the plaintiff has kept a Gumti over the Arya Samaj Mandir land/Chabutara to carry on tea stall. The Prescribed Authority also observed about the conduct of the defendant-tenant as under:-