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Harish Chandra v. A.D.J. - WRIT - A No. 5880 of 1991  RD-AH 7157 (8 December 2005)
Civil Misc. Writ Petition No.5880 of 1991
Harish Chand Vs. Vth Additional District Judge, Bulandshahar
List revised. No one has appeared for the tenant-respondent no.2- Prem Chand.
This is landlord's writ petition arising out of suit for eviction and recovery of arrears of rent filed by him against tenant-respondent no.2 Prem Chand in the form of SCC suit no.29 of 1986. Plaintiff-petitioner alleged that rate of rent was Rs.110/- per month and tenant had not paid the rent since September 1983. It was further alleged that shop in dispute was constructed in the year 1983 hence U.P. Act No.13 of 1972 was not applicable thereupon. IInd Additional Civil Judge, Bulandshahar accepted all the pleas of the landlord and decreed the suit through judgment and decree dated 16.11.1989. Against the said judgment and decree tenant-respondent no.2 filed SCC revision no.1/90. Revisional court reversed the judgment and decree of the trial court on almost every issue and allowed the revision, set aside the judgment and decree passed by the trial court and dismissed the suit.
In respect of rate of rent and default trial court had recorded a finding of fact after taking the evidence adduced by both the parties in favour of the plaintiff-petitioner. The revisional court had no jurisdiction to interfere in the said finding. Revisional court held that as no rent receipt was issued by the landlord hence version of the tenant should be accepted. In respect of period of default revisional court held that in case rent had been due since September 1983, landlord would not have kept quite for two and half years. Notice was given on 30.1.1986. Tenant had pleaded that he had paid rent and no rent was due. The revisional court accepted version of the tenant. In my opinion revisional court had no jurisdiction to interfere in pure findings of fact.
In respect of date of construction landlord had stated that he purchased the land over which shop in dispute was constructed in the year 1980 and constructed the shop in dispute thereupon in the year 1983. The tenant in his evidence did not deny the fact that land was purchased by the landlord in the year 1980. The revisional court held that in the absence of sale deed the said fact could not be accepted. Revisional court also held that no municipal records were filed to prove the date of construction.
In my opinion when the fact that landlord had purchased the land in the year 1980 was not denied by the tenant, it was not necessary to file the sale deed to prove the said fact. In any case before 1984 when tenant took the shop in dispute on rent, he could not have any specific information regarding date of construction of the shop. Tenant also did not file any municipal records in respect of construction.
In my opinion therefore, the view of the revisional court in respect of date of construction is also erroneous.
Accordingly, writ petition is allowed. Judgment and order passed by the revisional court is set aside. Judgment and decree passed by the trial curt is restored. However, as no one has appeared on behalf of tenant-respondent hence before issuing writ of possession/parwana dakhal on the execution application, which may be filed in pursuance of this judgment, executing court shall ensure service of notice upon tenant respondent no.2 Prem Chand.
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