PAWAN KUMAR Vs. BRIJ BHUSHAN

JUDGEMENT

(1.) THIS is un-successful defendant's regular second appeal.

(2.) PLAINTIFF filed a suit for possession of a shop and for recovery of rent for the period from 15. 12. 85 to 2. 1. 1996 at the rate of Rs. 175/- per month and mesne profits at the fate of Rs. 175/per month from 3. 1. 1986 to 20. 1. 1996. As per the averments made in the plaint, plaintiff took the shop in dispute from Siri Kishan Dass, father of the plaintiff, vide rent note dated 19. 7. 1977 at the rate of Rs. 175/- per month. The shop fell to the share of the plaintiff in a family settlement as decreed by the Civil Court vide judgment and decree dated 16. 1. 1984. Shop was constructed in the year 1977 and so the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 are not applicable. Plaintiff terminated the tenancy of the defendant vide registered notice dated 14. 12. 1985 and thereafter filed the suit claiming possession as well as the rent due and mesne profits.

(3.) FEELING aggrieved by the aforesaid concurrent findings recorded by the Courts below, appellant has termed these to be wholly un-warranted on proved facts and otherwise legally un-sustainable. Elaborating, the counsel argued that primarily it is the duty of the plaintiff to prove beyond an element of doubt that the building infact was constructed in the year 1977 and so can hardly derive any benefit from such a stipulation in the rent note. Otherwise too, there is ample evidence on record which prove that the building infact was in existence long before its alleged construction in the year 1977. Counsel made reference to documents, exhibits D-3, D-4, D-5 and D-6 and argued that infact there existed 8 different shops prior to the induction of the defendant as a tenant in the shop in dispute. Since it is the case of the plaintiff that the shops were demolished during the emergency and thereafter constructed new, the newly constructed shops at best would relate to the 6 shops only and not 8 shops. Thus, one can infer that shop in occupation of the defendant-appellant infact had not been raised to the ground during the emergency and only some modification in structure was undertaken before letting it out to the defendant. Both the Courts have not examined in light of this factual position which has resulted in failure of justice. The Courts below have also not properly construed the alleged notice issued by the Municipal Committee restraining the plaintiff from raising construction without seeking approval of the site plan.