JUDGMENT

1. Heard Mr. Mr. Anil Kumar Joshi, the learned counsel for the petitioners, Mr. Suyash Pant, the learned Standing Counsel for the State, and Mr. Ravi Babulkar, the learned counsel for respondent no. 3.

2. In this writ petition, filed under Article 227 of the Constitution of India, the petitioners being defendants in SCC Suit No. 1 of 1992 of the Court of Judge, Small Causes (Munsif), Pithoragarh, has assailed the order passed by the Judge, SCC on 14.06.2005, giving directions to the petitioners to vacate the property and hand it over to respondent no. 3 which was partially modified by the revisional court.

3. The facts of the case may be summarized as follows:

Plaintiff/respondent no. 3 filed a suit under the Small Causes Court Act before the Judge, SCC, Pithoragarh, registered as SCC No. 1 of 1992. He sought for decree of eviction, arrears of rent and damages mainly on the ground that late Narendra Singh Bisht, Moti Devi and Chanchal Singh Bisht are the members of Hindu Joint Family and plaintiff/respondent no. 3 is managing the property of the family as manager in charge. The plaintiff further averred that occupier of the property, namely, Lashkaria Bhawan, and the petitioners are the tenant of the property and the defendants have not paid the rent since 01.04.1985, and, denied the ownership of the plaintiff over the property in question. It is further stated that the defendants has also encroached some vacant area by constructing one room in violation of the terms of tenancy and has also constructed kitchen and cow shed on land passage which is common to all tenants. The plaintiff further averred that the defendants constructed two rooms by occupying two washrooms, front yard which was in the common use of six tenants. The further case of the plaintiff is that defendant with collusion of the legal administrator got the property in his name by auction belonging to the passage, front yard and washroom.

A notice was sent on 21.06.1991 through registered post, acknowledgment due, to the defendants but notices were returned. Hence, the plaintiff prayed for recovery of damages, possession of the disputed property as per Section 20 (2) clause (A) of the U.P. Urban building (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as Rent Control Act for the brevity).

The petitioners, being the defendants, filed their written statements denying in general the averments made by the plaintiffs. Additionally, they plead that the disputed house was allotted by the Rent Control Officer, Pithoragarh in the year 1965 and the defendants has paid the rent as fixed in the allotment order. The plaintiffs, since 1986-87 refused to accept the rent and money order of the rent was also returned, therefore, the rent was deposited in rent control case no. 12 of 1987 from the year 1986 to 1992. It is further contended that land adjacent to the disputed land was purchased by the defendants measuring 900 square feet in an auction conducted by the Nagar Palika Parishad, Pithoragar. On such pleas, the learned Judge, Presiding the Small Causes Courts framed the following questions as points of determination:-

1- D;k oknh ,oa izfroknh ds eè; Hkou ,oa fdjk;nkjh ds lEcU/k gSa\
2- D;k oknh fo"k;xr laifRr dk yS.MykSMZ gS\
3- D;k izfroknh us oknh dks dksbZ fdjk;k vnk ugh fd;k\
4- vuqrks"k\

Two witnesses including plaintiff were examined on behalf of the plaintiff and several documents were relied on. One of the defendants examined himself as DW1 on behalf of the defendant.

The learned Trial Judge, vide judgment and order dated 14.06.2005 decreed the suit, granted decree of eviction and also directed the defendants to pay rent @ 12.50 per month, from the date of the suit. Being aggrieved of the aforesaid judgment, the legal heirs of the defendants filed revision in the court of District Judge, Pithoragarh, which was registered as Revision No. 4 of 2005. The revision was partly allowed vide judgment and order dated 22.12.2010. The revi