1. This revision under Section 25 of Provincial Small Cause Courts Act has been field by the defendant tenant against the judgment and decree dated 2-2-1999 passed by 9th Additional District Judge, Ghaziabad in S.C.C suit No. 33 of 1992 decreeing the suit of respondent for ejectment and pendente lite and future damages at the rate of Rs. 600/- per month.

2. The respondent landlord filed S.C.C suit No. 33 of 1992 against the applicant tenant, for his ejectment from the shop in suit for recovery of arrears of rent from 1-11-1989 till the date of suit at the rate of Rs. 1,500/- per month and for pendente lite and future damages at the rate of Rs. 2,000/- per month. The case of the plaintiff, in brief, was that he was owner landlord of premises in question and defendant was its tenant on monthly rental of Rs. 1,500/- The defendant was carrying on furnitue shop in the premises in question. The shop in question was cnstructed in the year 1986 after demolition of old one and therefore the provisions of U.P Act No. 13 of 1972 were not applicable to it. The defendant fell in arrears of rent since 1-11-1989 and the plaintiff landlord accordingly terminated his tenncy by serving a registered notice dated 22-3-1992 under Section 106 of Transfer of Property Act. The above notice was returned un-served. Therefore he again sent another notice dated 13-4-1992, which was served on the defendant tenant by refusal. The tenancy of the defendant accordingly stood terminated with effect from 13-10-1992. The defendant neither paid the rent nor vacated the premises in question; hence the suit.

3. The defendant tenant contested the above suit on the ground that rate of rent was only Rs. 600/- per month. The shop in question was not reconstructed in the year 1986, but it was a part of old building. The provisions of U.P Act No. 13 of 1972 were applicable to the premises in question. No notice was served on him and he never refused to take any notice. The defendant tenant had gone to Ajmer Sharif on 11-4-1992 and returned from there on 16-4-1992. He was not at his residence on 13-4-1992 and the endorsement of the Postman regarding refusal was forged one. He further contended that he had paid rent of the pemises in question till December, 1992.

4. The learned Judge Small Causes Court framed necessary issues arising out of above pleadings of the parties and on consideration of the evidence of the parties held that the shop in question was reconstructed in the year 1986 after getting sanction plan passed from the Nagar Palika concerned and its first assessment was made with effect from 1991-1992 and therefore provisions of U.P Act No. 13 of 1972 was not applicable to it. The plaintiff landlord proved by examining Postman concerned that the defendant tenant refused to take notice and defendant could not establish that he was in Ajmer Sharif from 11-4-1992 to 16-4-1992. He further held that rate of rent of the premises in question was only Rs. 600/- per month and the defendant tenant had paid rent upto December, 1992. He further held Page: 354that the tenancy was terminated through simple notice under Section 106 of Transfer of Property Act and the tenant was not entitled to any protection under the provisions of U.P Act No. 13 of 1972. With the above findings the trial Court decreed the suit for ejectment of the tenant from the premises in question and for pendente lite and future damages at the rate of Rs. 600/- per month.

5. Dissatisfied with the above judgment and decree the tenant has preferred this revision.

6. Parties have exchanged their affidavits. The revision was admitted, vide order dated 18-2-1999. The respondent filed counter-affidavit. Sri K.S Yadava, Advocate who had originally filed the revision for applicant stated before the Court on 21-1-2000 that he had no further instructions to press the revision. The office was directed to submit a report regarding filing of fresh vakalatnama on behalf of revisionist. The office reported on 25-1-2001 that Sri Shahid Masood, Advocate had filed vakalatnama on behalf of revisionist. His vakalatnama dated 3-8-1999 is also on record. None appeared on behalf of revisionist on the date of hearing. Heard Sri M.K Gupta, learned counsel for the respondent landlord and perused the record.

7. The landlord respondent filed suit for ejectment of applicant tenant and for recovery of arrears of rent and damages claiming that rate of rent was Rs. 1,500/- per month and tenant was in arrears of rent since 1-11-1989. The trial Court held that rate of rent was only Rs. 600/- per month and defendant had paid rent upto December, 1992. The landlord thereafter did not file any revision and submited to the above judgment of the trial Court.

8. However, the suit of the landlord opposite party was decreed for ejectment on the ground that premises in question was constructed in the year 1986 and provisions of U.P Act No. 13 of 1972 were not applicable to it and that the tenancy of the tenant applicant has been terminated by notice under Section 106 of Transfer of Property Act, which was served on tenant applicant by refusal.

9. The judgment and decree of the Trial Court to that extent was challenged in this revision.

10. After having gone through the judgment of the trial Court I find that the finding of the trial Court that premises in question was constructed in the year 1986 is a pure finding of fact and is based on documentary as well as oral evidene on record. The Trial Court has considered the date of sanctioned plan for construction of the shop in question as well as the year of first assessment recorded in the Municipal records as well as the evidence of Jai Bhagwan (D.W 2). The defendant tenant could not produce any document in rebuttal to above documentary evidence regarding year of construction and first assessment of the shop in question by the Nagar Palika authorities. Therefore, there is no perversity in the above finding of fact and that finding of fact cannot be interfered with in this revision.

11. The trial Court has further recorded a finding of fact based on evidence on record that registered notice under Section 106 of Transfer of Property Act was duly tendered to the defendant tenant on 13-4-1992, but he refused to accept the same, therefore, the Postman concerned returned the same with an endorsement of refusal. He has duly considered the statement of Postman, who had gone to the address of the defendant on 10, 11 and 12th April, 1992. But the defendant tenant did not meet and he again went there on 13-4-1992 when the defendant met and he tendered the notice but he refused to take notice. The trial Court had also considered the evidence of defendant and his witness Alimuddin in this regard and further recorded a finding of fact that defendant could not establish that he was not present at his residence from 11-4-1992 to 16-4-1992 as he had gone to Ajmer Sharif during said period. This finding of fact is also based on evidence on record and does not suffer from perversity. Therefore, there is no ground for interference in the above finding of fact in this revision.

12. Since the premises in question was not governed by U.P Act No. 13 of 1972, it was a case of simple tenancy terminable on the notice under Section 106 of Transfer of Property Act and the defendant tenant had nowhere challenged the validity of the notice, the tenancy of the tenant applicant stood validly terminated. So far the pendente lite and future damages are concerned, the trial Court has allowed the same at the rate of monthly rent i.e Rs. 600/- Page: 355per month.

13. I find no illegality or irregularity or jurisdictional error in the revision in question. The revision having no force is accordingly, dismissed with costs.

14. Petition dismissed.