SALIMKHAN Vs. MOHAMMAD IBRAHIMKHAN

JUDGEMENT

(1.) This writ petition by the defendant is directed against the order passed by the District Judge, Amravati, dismissing his appeal from the decree of ejectment and mesne profits passed by the Civil Judge (Senior Division), Achalpur.

(2.) The respondent filed a suit on July 22, 1985 against the petitioner for possession of an open site on the allegation that it had been let out under a rent-note dated September 1, 1982, for a period of 11 months at a monthly rent of Rs. 225/- and that the petitioner had constructed a temporary structure for running hotel on the open site and though thereafter a notice was sent determining the lease, plot was not vacated and he was, therefore, entitled to possession and mesne profits. The petitioner denied that the lease was merely of an open plot, that according to him being of a structure and the rent-note having been executed by describing the property as an open plot merely to circumvent the provisions of the C. P. and Berar Letting of Houses and Rent Control Order ('Rent Control Order for short). The learned trial Judge after considering the evidence, held that the lease was only in respect of an open site, that the provisions of the Rent Control Order did not apply to the premises and as the lease was validly terminated by a notice, the respondent was entitled to possession and mesne profits.

(3.) The petitioner appealed to the District Court and apparently it was not disputed before the learned District Judge, that as the claim was of a nature cognizable by the Court of Small Couses, but had been decided by the trial Court viz., the Court of the Civil Judge (Senior Division), Acbalpur, which had summary powers upto Rs. 1,800/- only, as a regular suit, because the valuation of the suit for the purposes of jurisdiction was Rs. 2,700/-. The District Judge, therefore, held that an appeal lay to it under Section 9^-of the Code of Civil Procedure only on the question of law. In the view of the learned District Judge, the question of law was involved whether the tenancy in question was governed by the provisions of the Rent Control Order and having regard to the evidence, as the lease was only in respect of an open plot, the provisions of the Rent Control Order did not apply to it. He also found that the bar of Section 92 of the Evidence Act, was attracted in view of the execution of the rent-note, but even if that bar was lifted, the material on record showed that the lease was only in respect of , a open plot. He, therefore, dismissed the appeal.