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2010 DIGILAW 850 (ALL)

Kalu v. Shyam Lal Agarwal

2010-03-15

RAKESH TIWARI

body2010
JUDGMENT Present second appeal has been filed challenging the judgment and decree dated 2.2.2010 passed by Additional District Judge, court no. 1, Agra in Civil Appeal No. 70 of 2009, Deepu and others Vs. Smt. Shakuntala Agrawal and others, confirming the judgment and order dated 29.4.2009 passed by Additional Civil Judge (J.D.), Agra in original suit No. 678 of 2000, Sri Shyam Lal and others Vs. Sri Om Prakash and others. 2. The appellants have sought relief of setting aside the judgment and order dated 2.2.2010 passed by Additional District Judge, court no. 1, Agra in Civil Appeal No. 70 of 2009 as well as judgment and order dated 29.4.2009 passed by Additional Civil Judge (J.D.), Agra in Original Suit No. 678 of 2000. 3. Heard Sri Maqsood Ahmad, learned counsel for the appellants defendants and Sri V.K. Birla appearing for respondent plaintiffs no. 1 and 1/1 to 1/6. Proforma respondent defendant no. 1/7 and 1/8 are permitted to be corrected by the counsel for appellant as proforma respondent defendant no. 2 and 3. Notice need not be issued to proforma respondent defendant no. 2 and 3 at this stage for the nature of order which is being passed below. 4. Contention of the counsel for appellants is that the courts below had not framed proper issues and that as the plaintiff respondents could not adduce cogent evidence to prove their case beyond reasonable doubts, the impugned judgment and order suffers from surmises and conjectures and are liable to be set aside. 5. It has been argued by Sri Maqsood Ahmad, learned counsel for the appellants that compromise decree passed in suit no. 507 of 1972, on the basis of which contract of tenancy came into existence between Shyam Lal and the heirs of Manohar Lal, is binding on the plaintiff respondents. Under the aforesaid compromise, part of the property was vacated and its possession was given to Shyam Lal, who had agreed that he shall not have a right to seek ejectment of the heirs of Manohar Lal from the remaining portion of the property, and if they are to be ejected, they shall be ejected in accordance with the grounds for ejectment of tenants mentioned in the U.P. Urban Buildings (Regulation of Letting,Rent & Eviction) Act, 1972 ( Hereinafter referred to as the U.P. Act no. 13 of 1972). 6. 13 of 1972). 6. It is argued that the courts below have not appreciated this fact of compromise which was necessary for proper adjudication of the case and that even if the property is not governed by the provisions of U.P. Act no. 13 of 1972, the landlord having entered into an agreement with the tenant that landlord shall not be entitled to seek ejectment of the tenant from the property except on the grounds mentioned in U.P. Act No. 13 of 1972, the findings recorded by the courts below regarding the compromise of the parties in the earlier suit is ignorance of fact and law and the present suit is barred by the principle of resjudicata. 7. It is further urged that not only suit no. 678 of 2000 is barred by section 20 of U.P. Act No. 13 of 1972 for want of any ground for ejectment of the defendant-appellants from the property in dispute but the courts below have wrongly shifted the burden of proof on the defendant/appellants against the law. 8. It is lastly submitted that definition of "Building" as given in U.P. Act No. 13 of 1972 was absolutely irrelevant in the present case and only provisions of the compromise ought to have been seen which have been agreed upon in suit No. 507 of 1972, therefore the plaintiff respondents had no right to seek ejectment of the appellant plaintiffs and their act being in violation of law settled by the Apex Court in A.I.R. 1971 SC-2213 as well as law settled in AIR 1980 Allahabad page 78, the present second appeal is liable to be allowed. 9. Sri V.K. Birla appearing on behalf of respondent plaintiff no. 1 and 1/1 to 1/6, submits that provisions of Act no. 13 of 1972 would not apply in the instant case for the reason that there was no building and that compromise entered between the fathers of two parties before the court was only in respect of tin shed on open piece of land which was given to him for use at the rate of Rs. 5/- per month. 10. 13 of 1972 would not apply in the instant case for the reason that there was no building and that compromise entered between the fathers of two parties before the court was only in respect of tin shed on open piece of land which was given to him for use at the rate of Rs. 5/- per month. 10. It is also stated that the tin shed which had earlier existed there had fallen down during the course of present litigation and was not reconstructed thereafter by the defendant appellants in terms of clause (9) of the compromise dated 18.1.1980, therefore, the compromise in respect of the tin shed frustrated and now cannot be acted. Sri Birla has vehemently argued that in the situation, the appellant defendants have no right either under the compromise as no building now exiss over the land or even under the provisions of U.P. Act No. 13 of 1972 which are not applicable. 11. No ther point has been argued by the counsel for the parties. 12. Having heard learned counsel for the parties and on perusal of the record, it appears that the courts below have considered these facts and concurrent findings of fact have been given against the appellant defendants. On perusal of the record, it is apparent that there was no building existing on the open land when judgments were delivered by the courts below. The appellant defendants have not reconstructed tin shed and have allowed the compromise to be frustrated. The provisions of Act No. 13 of 1972 do not apply to the open land and even otherwise the compromise has been frustrated by the appellants defendants by the inaction to comply with clause 9 of the said compromise. Even otherwise tin shed is not a " building" within the meaning of Act no. 13 of 1972. 13. Learned counsel for the appellants defendants has except placing the facts not been able to satisfy that any substantial question of law is involved in this second appeal. 14. For the reasons stated above, the appeal is dismissed. No order as to costs.