ORDER S.S. Dhavan, J. - This is a tenant's second appeal from the decree of the Civil Judge of Kanpur reversing that of the Munsif Kanpur and decreeing the landlords' suit for his ejectment from a shop in Kanpur. The only point urged in favour of this appeal is that the suit for ejectment was incompetent as the permission of the District Magistrate u/s 3 of the U.P. Control of Rent and Eviction Act had not been obtained before it was filed. The Plaintiff Respondents' reply to this contention is that the house having been constructed in 1952, the aforesaid Act does not apply to this case and therefore the permission of the District Magistrate was unnecessary. The only point to be decided by me in second appeal is whether the finding of the lower appellate court that the house was constructed in 1952 and therefore no permission from the District Magistrate was required for filing a suit for ejectment is erroneous. But it is necessary to give a brief resume of the essential facts which had led to this suit. There is a building known as No. 48/183 Generalganj Kanpur. It was purchased on 3rd May 1956 by the two Plaintiffs Prabha Devi and Jineshwari Devi who are sisters in law by marriage-their husbands being brothers. The seller was one Shikhir Chand who had purchased it in 1950. The Plaintiffs case is that Shikhir Chand bought the house in a very dilapidated condition and decided to demolish it and reconstruct a new house in its place. They alleged that the construction of the house was completed towards the end of 1952 after which the Defendant Appellant Khiya Ram was admitted by Shikhir Chand as a tenant of the shop in the ground floor of the newly constructed building. Shikhir Chand had to borrow money to build the new house and executed a mortgage of the house in favour of the previous owner. The rate of the interest was heavy, being 1 per cent per month, compound. He was unable to pay off this debt and ultimately compelled to sell the house to the two Plaintiff in May 1956. Within two weeks of the purchase the Plaintiffs served a legal notice on the Appellant Khiya Ram terminating his tenancy and asked him to vacate the shop after paying the arrears of rent. He was unable to pay off this debt and ultimately compelled to sell the house to the two Plaintiff in May 1956. Within two weeks of the purchase the Plaintiffs served a legal notice on the Appellant Khiya Ram terminating his tenancy and asked him to vacate the shop after paying the arrears of rent. The notice plainly stated that the house being new it was not subject to the provisions of the U.P. Control of Rent and Eviction Act and the new landlords were competent to eject the tenant if they so desired. Khiya Ram rejected the notice as invalid and denied that the house was a new construction. He alleged in his reply that the previous owners had merely carried out heavy repairs which did not have the effect of exempting the accommodation from the Control of Rent and Eviction Act. As he refused to quit the landlords filed this suit for his ejectment. 2. Both sides led evidence, oral and documentary. The Plaintiffs produced Shikhir Chand the previous owner who had made the constructions. This witness was examined on commission on the ground that he was stricken with tuberclosis and could not attend court. He deposed that at the time when he bought the building for a sum of Rs. 9000/- it was dilapidated, and after demolishing it and constructing a new one in its place he sold it lor a sum of Rs. 18000/- to the Plaintiffs. The evidence of the other witnesses for the, Plaintiffs is not of much value as, in my opinion, it is either biased or hear-say. The case of the Plaintiff must stand or fall by the testimony of Shikhir Chand and the documents which have been produced in support of it. The important documents are the two mortgage deeds executed by Shikhir Chand in favour of his creditor in 1952 and 1954 respectively. In one of them it was mentioned in the recitals that Shikhir Chand needed money for constructing a new house in the place of the old one which he had demolished because it was in a dilapidated condition. The Defendant also produced several witnesses in support of his allegations that Shikhir Chand did not construct any new house nor did he demolish the old house but merely repaired it at an extensive scale. He also appeared as a witness himself. The Defendant also produced several witnesses in support of his allegations that Shikhir Chand did not construct any new house nor did he demolish the old house but merely repaired it at an extensive scale. He also appeared as a witness himself. It is not necessary for me to consider the evidence of the Defendant's witnesses as, after it was read out before me, learned Counsel for the Defendant-Appellant had to concede that almost all of it was hearsay or irrelevant. The trial court did not believe the Plaintiff's story and held that no new house was constructed and therefore the U.P. Control of Rent and Eviction Act was applicable to the accommodation. As it was common ground that no permission of the District Magistrate was obtained before the suit was filed and the suit did not come within any one of the exceptions specified in Section 3, it dismissed the suit. On appeal the learned Civil Judge disagreed with the trial court's assessment of the Plaintiffs' evidence and held that there was no reason to disbelieve Shikhir Chand's testimony. He held that the Plaintiffs had established that a new house was constructed by Shikhir Chand in 1952 and therefore by virtue of Section 1A of the U.P. Control of Rent and Eviction Act the accommodation was exempt from the operation of the Act. Accordingly he allowed the landlord's appeal and passed a decree for the ejectment of the Appellant who has come to this Court in second appeal. 3. The question is whether on these facts, the accommodation is exempt from the controls imposed by the Control of Rent and Eviction Act. This in turn depends upon whether the accommodation was constructed after 1st January 1951. Section 1A of the Act provides: "Nothing in this Act shall apply to any building or part of building which was under erection or was constructed on or after 1st of January, 1951.'' Mr. Pratap Kumar who appeared for the Appellant argued that Section 1A does not apply to a house which was repaired, even if the repairs were on an extensive scale, and carried out after the prescribed date. For the purpose of this argument, he assailed the finding of the lower appellate court that the house was demolished and a new house constructed in its place, and contended that the constructions were repairs. For the purpose of this argument, he assailed the finding of the lower appellate court that the house was demolished and a new house constructed in its place, and contended that the constructions were repairs. At the outset, a preliminary objection was made by Mr. Ambika Prasad learned Counsel for the Plaintiff Respondents that the finding of the first appellate court that the old building was demolished in 1952 and a new one constructed in its place is one of fact and can not be reviewed in second appeal. Learned Counsel further argued that if this finding was binding on this Court, as it must be, the question whether the building was constructed after 1st January 1951 was not in controversy. Learned Counsel relied on my own decision Preetam Das v. Satya Narain (1) 1964 AWR 462 in which it was observed that in all cases where portion of the old building were included in a building constructed after 1st of January 1951 the courts in determining whether such a building should be regarded as having been constructed after the prescribed date should decide the question as one of fact and in doing so "it should consider all the relevant and material circumstances such as the expenses incurred in the new construction, the value of the old portion and the saving effected by making it a part of the new, and so on. What are material facts depends upon the circumstances of each case.'' Learned Counsel relied on the words "the courts should decide the question as one of fact," and contended that this observation must govern the controversy in the present suit and the finding of the learned Judge that Shikhir Chand constructed a new house in place of the old must be treated as one of fact. 4. There are two short answers to this preliminary objection. I agree that the question whether a building was constructed after 1st of January 1951 or not is obviously one of fact. But it does not follow that such a finding can never be reviewed in second appeal. 4. There are two short answers to this preliminary objection. I agree that the question whether a building was constructed after 1st of January 1951 or not is obviously one of fact. But it does not follow that such a finding can never be reviewed in second appeal. If a finding relates to what is known as a jurisdictional facts and the appellate court proceeded to exercise, or refused to exercise, jurisdiction on the basis of its own finding, it is open to a party adversely affected by this decision to challenge this finding and contend that the lower court wrongly exercised or refused to exercise jurisdiction. It is well established that no court can exercise jurisdiction or refuse to exercise jurisdiction by giving a wrong verdict of facts. In Chaube Jagdish Prasad v. Ganga Pd. Chaturvedi (2) 1959 ALJ 626 it was held that the High Court can interfere with the decision of the lower court u/s 115 CPC if that court wronly decided a fact and thereby conferred jurisdiction not vested in it or failed to exercise the jurisdiction so vested. That case was under the U.P. Control of Rent and Eviction Act in which the lower court had found that a house was constructed after 30th June 1946 and enhanced the rent u/s 5(4) of the Act. The other side went up in revision u/s 115 CPC to the High Court which held that the finding of the lower court that the construction was made after 30th June 1946 was erroneous and therefore the court below wrongly assumed a jurisdiction which did not vest in it. This view was upheld by the Supreme Court on the ground that a finding on a jurisdictional fact can be reviewed by the High Court. That was a case involving the revisional jurisdiction of the High Court, but the principle enunciated by the Supreme Court will apply a fortiorari in a second appeal u/s 100 Code of Civil Procedure. I am therefore of the opinion that the finding of the lower court that the house was constructed a new in 1952 being a finding on a jurisdictional fact, the Appellant is entitled to show that the lower court usurped a jurisdiction on the basis of an erroneous finding. The preliminary objection fails. 5. I am therefore of the opinion that the finding of the lower court that the house was constructed a new in 1952 being a finding on a jurisdictional fact, the Appellant is entitled to show that the lower court usurped a jurisdiction on the basis of an erroneous finding. The preliminary objection fails. 5. On merits, after hearing both counsel at considerable length reviewing the entire evidence on record, I am of opinion that the finding of the learned Judge appears to be correct. Mr. S.P. Kumar relied on the reasoning of the trial court which was of the opinion that the testimony of Shikhir Chand was not reliable. The learned appellate Judge disagreed with this view, and I am inclined to concur. There is no reason why Shikhir Chand should have sided with the Plaintiffs Respondents. After having sold the house, he had no interest in the controversy between the parties in this suit. The documentary evidence tends to confirm his statement that he demolished the house and constructed a new one in its place. In the mortgage deed the recitals contain a statement that he had constructed a new house. The deed was executed in 1954 when he had no motive to make a wrong statement. The trial court made an adverse inference against Shikhir Chand because he was unable to give details of where he got the material, who was the architect, and so on. But the court ignored the fact that Shikhir Chand was a sick man at that time-a tuberclosis patient who had to be examined on commission. Moreover, after he had sold the house, it was not unnatural that he should not be interested in preserving account books relating to the construction of the house. The learned Munsif was also prejudiced by the failure of the Plaintiff to produce the sale deed by which they had purchased the house and thought that it had been withheld because it might contain statements unfavourable to the Plaintiffs case. But the court was not entitled to draw this inference because the Plaintiff had not withheld any fact within the special knowledge, and the Defendants could easily have obtained a certified copy of the sale deed and produced it. Moreover, the Plaintiffs tendered the original sale deed before the appellate court but the Defendants objected to its production and the court was compelled to reject it. Moreover, the Plaintiffs tendered the original sale deed before the appellate court but the Defendants objected to its production and the court was compelled to reject it. However, to be fair to both sides I asked the Plaintiffs to produce the sale deed before this Court. It contains a clear statement by Shikhir Chand that he had demolished the old house and built a new one in its place. The document read as a whole strongly supports the case of the Plaintiffs, and negatives the adverse inference of the trial court. After a review of the entire evidence I am of opinion that the finding of the lower appellate court that the house was constructed as a new building in 1952 should not be disturbed. It must follow that the U.P. Control of Rent and Eviction Act does not apply to this accommodation, and it was not necessary to obtain the permission of the District Magistrate u/s 3(1) (a) before filing the suit for ejectment. 6. The appeal must fail and is dismissed with costs. Mr. S.P. Kumar urged that this Court should give the Appellant at least a year to vacate the accommodation. He pointed out that the Appellant is a trader and will be ruined if he is thrown on the street before he can secure alternative accommodation. I think there is some substance in this appeal to the indulgence of the Court, and I am prepared to give the Appellant a year provided he gives an undertaking that at the end of the year he will vacate the accommodation voluntarily and not compell the Plaintiff Respondents to execute the decree. In fact Mr. Ambika Prasad learned Counsel for the Respondents stated that if the Appellant gives the undertaking he will have no objection to his being allowed one year. Mr. S.P. Kumar after consulting the Appellant in court gave an undertaking that the Appellant will voluntarily vacate this accommodation on or before the 31st of December 1965. On the faith of this undertaking. I grant the Appellant time till the 31st of December 1965 to vacate the accommodation. The implications of this undertaking were explained to the Appellant in court and he was warned that a breach of this undertaking will render him liable for contempt. 7. On the faith of this undertaking. I grant the Appellant time till the 31st of December 1965 to vacate the accommodation. The implications of this undertaking were explained to the Appellant in court and he was warned that a breach of this undertaking will render him liable for contempt. 7. It appears that the Plaintiffs Respondents are occupying another shop in another locality in which they carry on a cloth business. Mr. Ambika Prasad has stated that he has no objection to exchange that shop with the Appellant who is occupying the Plaintiff's accommodation at present. Mr. S.P. Kumar has given an undertaking that if the shop at present occupied by the Plaintiff Respondents in the same mohalla is "allotted" to the Appellant he Will vacate the accommodation in dispute as soon as he is able to occupy the other shop. The "allotment" of that shop to the Appellant is within the discretion of Rent Control Officer but I have no doubt that that officer will consider any application for allotment of that shop for any other shop; by the Appellant. Learned counsel for the Plaintiff-Respondents has drawn my attention to the fact that the Appellant has not paid arrears of rent for a substantial period. Mr. S.P. Kumar admits that some rent may not have been paid but agrees that the order granting the Appellant time till 31st December 1965 to vacate the accommodation may be made subject to the condition that the entire rent in arrears, if any, will be paid off within two months. Accordingly time is granted on this condition. If it is not paid within two months of today the indulgence will be withdrawn and the decree shall become executable forthwith. 8. The Plaintiffs-Respondents have filed a cross objection but this was not seriously pressed. I do not see any merit in it, and dismiss it with costs.