RAZIURRAHMAN Vs. RAZIA BANO

JUDGEMENT

(1.) The instant petition is directed against the judgment and decree dated 22.11.2016 passed by the Court of Small Causes in SCC Suit No. 01 of 2012 whereby the suit for recovery of arrears of rent and eviction of the petitioner from the shop in his tenancy has been decreed as well as the judgment and decree dated 26.09.2018 passed by District Judge, Jalaun at Orai in SCC Revision No. 5 of 2016 dismissing the revision.

(2.) Before stating the facts leading to passing of the impugned judgments, it is pertinent to note the facts relating to an earlier litigation between the parties in respect of the same tenement. The plaintiff-respondent instituted a suit on the regular side seeking eviction of the petitioner from the tenement in question claiming that open plot and a tin shed structure was let out to the petitioner, to which provisions of U.P. Act No. 13 of 1972 (for short 'the Act') were not applicable. The suit was contested by the petitioner claiming that infact he was tenant of a shop and not open piece of land. The petitioner further alleged that his shop along with other shops belonging to the plaintiff are duly recorded in the municipal assessment from the year 1993 onwards. The trial court framed a specific issue as to whether the tenancy was in respect of open land or a shop as alleged by the petitioner. The issue was decided in favour of the petitioner after recording a specific finding that the tenancy of the petitioner was in respect of a roofed structure, which falls within the definition of 'building' and therefore it was further held that the suit would not be maintainable before the civil court. While recording the said finding, the trial court recorded a further finding to the effect that provisions of U.P. Act No. 13 of 1972 would be applicable, the subject matter of tenancy being a building and not open piece of land. The finding recorded by the trial court while dismissing the suit by judgment dated 29.01.2010 was affirmed in appeal by judgment dated 26.09.2011 and in Second Appeal No. 911 of 2011 by judgment dated 09.11.2011. However, this court while deciding the second appeal and affirming the judgment passed by courts below clarified that the finding recorded by the trial court relating to applicability of U.P. Act No. 13 of 1972 would not be binding upon the parties as once the trial court arrived at the conclusion that the tenancy was in respect of a building and the suit was not maintainable, it also had no jurisdiction to record any further finding relating to applicability of the Act. Accordingly this court left the said issue open for decision in appropriate proceedings. The relevant observations made in this regard by this court while deciding the second appeal are extracted below:-

(3.) The plaintiff-respondent after decision in second appeal instituted the instant suit for eviction of the petitioner and for recovery of arrears of rent before the Court of Small Causes. It was alleged that the building in the tenancy of the petitioner was subjected to assessment for the first time in the year 1992-93, therefore provisions of the Act would not apply. On the other hand, the petitioner asserted that the shop in his tenancy was an old construction and pleaded that the Act would apply. The trial court as well as the revisional court have returned concurrent findings to the effect that the first assessment of the building was made in the year 1987-88 i.e. after 26 April, 1985, consequently the building would remain exempt from the provision of the Act for a period of forty years, in view of the second proviso to Sec. 2(2) of the Act. The tenancy of the petitioner was found to be validly terminated, accordingly the suit for eviction was decreed and the same has been upheld in revision.