Jagat Ram Seth v. Rai Bahadur D. D. Jain — 1970 DIGILAW 415 (ALL)

JUDGMENT M.N. Shukla, J. - This is a defendants second appeal against a decree for possession and recovery of arrears of rent and mesne profits in which several important questions of law have arisen for consideration. The suit was decreed by the Courts below and hence this second appeal. 2. The plaintiffs filed the suit with the allegations that one Lala Harbands Lal since dead was the owner of the land detailed at the foot of the plaint, that he let out the land to Mistri Ibrahim on 7.1.1944 on a monthly rent of Rs. 12/- which was later enhanced to Rs. 24/- with effect from 1.2.1948, that in the end of the year 1949 or the beginning of 1950 the defendant colluded with the said tenant mistri Ibrahim and entered in possession of the suit land that later Mistri Ibrahim left the land and Lala Harbans Lal recognised the defendant as his tenant on the same terms and conditions, that Lala Harbans Lal died in November, 1954 and as he had left a will and created a trust the suit was brought by his heirs. The plaintiffs alleged further to have served the defendant with a notice under Section 106 of the Transfer of Property Act on 9.7.1959 but in spite of the expiry of the period of notice the defendant did not vacate the land and hence the suit was brought for recovery of possession of the said land. The plaintiffs also claimed Rs. 775/- as arrears of rent at the rate of Rs. 12/- per month; Rs. 27/- as mesne profits and further manse profit at the rate of Rs. 1/- per day. 3. The defence to the suit was that when the landlord was let out to the defendant it had a roofed verandah and a Kothri that the rate of rent was Rs. 12/- per month and the same had been paid to and accepted by Lala Harbans Lal and his successor. Mistri Ibrahim was said to have his workshop on the disputed site and also he instated some machines. In 1949 the appellant claimed to have acquired the goodwill, workshop and business of Mustri Ibrahim with the consent and permission of Lala Harbans Lal and constructed permanent buildings by investing a sum of Rs. Mistri Ibrahim was said to have his workshop on the disputed site and also he instated some machines. In 1949 the appellant claimed to have acquired the goodwill, workshop and business of Mustri Ibrahim with the consent and permission of Lala Harbans Lal and constructed permanent buildings by investing a sum of Rs. 40,000/- within the knowledge and with the consent of Lala Harbans Lal and as such he and his successors were estopped from ejecting the defendant. An objection was also raised as to the insufficiency of the Court fees and the suit not being cognizable by the Court of the Munsif. It was further pleaded that the suit was barred by Section 3 of U.P. Act No. 3 of 1949. The notice was said to be invalid as the tenancy could not be terminated by a notice of 30 days duration. 4. The first point which was raised before me on behalf of the appellant was that the suit had not been properly valued and on proper valuation the trial Court would not have the jurisdiction to try the same. It was contended that since the relief of vacant possession was asked for in the plaint and the defence was that there were structures existing and a decree had in fact been passed by the trial Court for possession after demolition of the structures, it was incumbent on the plaintiffs to value the suit after taking into consideration the structures worth about Rs. 40,000/- which were alleged to have been made by the appellant. In this view of the matter according to the appellant the jurisdiction on the learned Munsif would have been clearly ousted. The learned counsel relied on the provisions of Section 4 of the suits Valuation Act and submitted that the suit for possession should be valued for the purposes of jurisdiction at the market value of the property involved in or affected by or the title to which is affected by the relief sought in the plaint. It was contended that demolition of the property in the shape of structures existing on the land and consequently the same must be valued for the purposes of jurisdiction. It was contended that demolition of the property in the shape of structures existing on the land and consequently the same must be valued for the purposes of jurisdiction. The learned counsel relied on a decision of this Court in Shanti Prasad v. Mahabir Singh, AIR 1957 Allahabad 402 : A.L.J. 431 for the proposition that a suit had to be valued for two purposes; firstly for payment, of court fees and secondly for determining the pecuniary jurisdiction of the Court in which it is to be filed. The valuation for the purpose of Court fees had to be made according to the provisions of the Court Fees Act and the valuation for the purposes of jurisdiction had to be made under the Suits Valuation Act. It was submitted that in cases the two valuation were likely to be identical but that was by no means necessary. It was possible in some cases that the value of the suit might be different from the value for the purposes of jurisdiction. The learned counsel then referred to Section 3 of the Suit Valuation Act which conferred on the State Government the power to make rules for determining the value of land for the purposes of jurisdiction in the suits mentioned in the Court Fees Act Reliance was placed on rule 3(e) of U.P, Suits Valuation Rules, 1942, which were made in exercise of the aforesaid power. Rule 3 reads as follows :- "In suits for the possession of land, the value of land for purposes of jurisdiction shall be determined as follows :- (e) Where there are also building or a garden on the land the aggregate of the value of the land as determined in accordance with these rules plus the market value of such buildings or garden situated thereon. On the basis of the aforesaid provision it was contended that on a proper valuation of the property which was the subject matter of the suit, the learned Munsif could not retain the jurisdiction to try the same." 5. I am unable to accept this contention of the appellant for several reasons. On the basis of the aforesaid provision it was contended that on a proper valuation of the property which was the subject matter of the suit, the learned Munsif could not retain the jurisdiction to try the same." 5. I am unable to accept this contention of the appellant for several reasons. Firstly, the reliance of the appellant, has been on Section 4 of the Suits Valuation Act which says that suits mentioned in the Court Fees Act shall be valued for the purposes of jurisdiction at the market value of the property involved in or affected by or the title to which is affected by the relief sought, and such value shall in the case of land, be deemed to be the value as determinable in accordance with the rules framed under Section 3 the. On the basis of this it was argued that the relief in the present case was evidently going to affect the property i.e. the structure as well, hence the valuation of the property according to the market value was essential for the purposes of determining the jurisdiction. This argument apparently overlooks the preliminary requirement of Section 4 which says that suits mentioned in paragraphs iv(a), iv-A, iv-B, v, v-A, v-B, vi-A, viii and x(d) of Section 7 and articles 17, 18, and 19 of Schedule II of the Court Fees Act, 1870 shall be valued for the purposes of jurisdiction in the manner provided for in that section. Th question therefore, arises as to whether the present suit fell within the category of the suits contemplated by Section 4. The instant suit was a suit for the recovery in immovable property from the tenant and consequently it can be regarded as a suit under Section 7(ii) of the Court Fees Act. It cannot fall under any other provision of the Court Fees Act and consequently the applicability of Section 4 of the Suit Valuation Act with regard to the present suit is ruled out. 6. It cannot fall under any other provision of the Court Fees Act and consequently the applicability of Section 4 of the Suit Valuation Act with regard to the present suit is ruled out. 6. Secondly, the above conclusion is reinforced by a reference to Section 8 of Suits Valuation Act which clearly provides that where in suits other than those referred to in Section 4, Court-fees are payable advalorem and under the Court Fees Act, 1870, as in force for the time being in Uttar Pradesh, the value as determinable for the computation of Court-fees are payable advalorem the value for purpose of jurisdiction shall be the same. From this it follows that Section 4 of the Suit Valuation Act was not applicable to the facts of the present case. 7. Thirdly, as I have already observed, the suit as framed was simply a suit between a landlord and a tenant and as such it was to be governed by Section 7 (xi)(cc) of the Court Fees Act. For the purpose of determining the jurisdiction only the allegation made in the plaint have to be taken into consideration and not the allegation made in the written statement. 8. Fourthly, it was held in Sethappa Chettiar v. Ramanathan Chettiar, AIR 1958 Supreme Court 246 as under :- "The question of Court-fees must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the decision of the suit on the merits." It was further observed :- "The effect of the provisions of Section 8 in to make the value for the purposes of jurisdiction dependent upon the value as determinable for computation of Court-fees. The computation of Court-fees in suits falling under Section 7(iv) of the Court-fees Act depends upon the valuation that the plaintiff makes in respect of his claim. Once the plaintiff exercises his option and values his claim. Once the plaintiff exercises his option and values his claim for the purposes of Court fees, that determines the value for jurisdiction. The value for Court-fees and the value for jurisdiction must no doubt be the same in such cases; but it is the value for Court-fees stated by the plaintiff that is of primary importance. It is from this value that the value for jurisdiction must be determined. The value for Court-fees and the value for jurisdiction must no doubt be the same in such cases; but it is the value for Court-fees stated by the plaintiff that is of primary importance. It is from this value that the value for jurisdiction must be determined. The result is that it is the amount at which the plaintiff has valued the relief sought for the purposes of Court-fees that determines the value of jurisdiction in the suit and not vice-versa." This rule applies with full force to the present suit which was brought by the landlord for the ejectment of the tenant from an immovable property. The learned counsel for the appellant from an immovable property. The learned counsel for the appellant relied on the case of Santi Parsad v. Mohabir Singh (supra). But from a perusal of the facts stated in paragraph 2 of the reports it is clear that it was a suit by a reversioner against the transferee of a Hindi widow treating the transferee as a trespasser and was therefore a suit under Section 7(v) of the U.P. Court Fees Act and consequently it clearly came within the ambit of Section 4 of the Suits Valuation Act. 9. Lastly, the objection of the appellant with regard to the valuation of the suit is also barred by Section 11 of the Suit Valuation Act which is in the following terms :- "11. Notwithstanding anything in Section 578 of the Code of Civil Procedure , an objection that by reason of the over-valuation or under-valuation of a suit or appeal a Court of first instance or lower appellate court which had not jurisdiction with respect to the suit or appeal exercised jurisdiction with respect thereto shall not be entertained by the appellate Court unless - (a) the objection was taken in the Court of the fist instance at or before the hearing at which issues were first framed and recorded, or in the lower appellate Court the memorandum of appeal to that Court or (b) The appellate Court is satisfied, for reasons to be recorded by it in writing, that the suit or appeal was over-valued or under-valued and that the over-valuation or under-valuation thereto has prejudicially affected the disposal of the suit or appeal on it merits. (2) If the objection was taken in the manner mentioned in clause (a) of sub-section (1), but the appellate Court is not satisfied as to both the matters mentioned in clause (b) of that sub-section and has before it the materials necessary for the determination of the other grounds of appeal to itself, it shall dispose of the appeal as if there had been no defect of jurisdiction in the Court of first instance or lower appellate Court. (3) If the objection was taken in that manner and the appellate Court is satisfied as to both those matter ad has not those materials before it, it shall proceed to deal with the appeal under the rule applicable to the Court with respect to the hearing of appeals; but if it remands the suit or appeal or frames and refers issues for trial or requires additional evidence to be taken it shall direct its order to a Court competent to entertain the suit or appeal." Thus the requirements of Section 11 of the Suits Valuation Act are, firstly that the objection must be taken in the Court of first instance or before the hearing etc. or in the lower appellate Court in the memo of appeal, and secondly that the appellate Court must be satisfied that the suit or appeal was over-valued or under-valued and that such over-valuation had prejudicially affected the disposal of the suit or appeal on its merits. The appellant has not been able to point out as to how the disposal of the case on merits was prejudicially affected by the alleged under-valuation of the suit. Thee only circumstance which was pointed out in this regard was that on a proper valuation the suit would have been cognizable by a higher Court. This by itself cannot be regarded as having prejudicially affected the disposal of the suit on merits. The words "unless the over-valuation or under-valuation therefore has prejudicially affected the disposal of the suit or appeal on its merits" were interpreted by the Supreme Court in Kiran Singh v. Chaman Paswan, AIR 1954 Supreme Court 340. This by itself cannot be regarded as having prejudicially affected the disposal of the suit on merits. The words "unless the over-valuation or under-valuation therefore has prejudicially affected the disposal of the suit or appeal on its merits" were interpreted by the Supreme Court in Kiran Singh v. Chaman Paswan, AIR 1954 Supreme Court 340. It was held that the said words in Section 11 clearly showed that the decrees passed in such cases were liable to be interfered within an appellants Court not in all cases and as a matter of course, but only if prejudice such as was mentioned in the section resulted and that the prejudice contemplated by the section was something different from the fact of the appeal having been heard in a forum which would not have been competent to hear it on a correct valuation of the suit as ultimately determined. Their lordships also commented on the object and purpose of Section 11 and the principle underlying Section 21 of the Civil Procedure code and observed :- "The principles that underlies Section 11 Suits Valuation Act, 1887, is that a decree passed by a Court, which would have had no jurisdiction to hear a suit or appeal but for over-valuation, or under valuation, is not to be treated as, what it would be but for the section, null and void and that an objection to jurisdiction based on over-valuation, or under-valuation should be dealt with under that section and not otherwise." 10. The same principle has been adopted in Section 21, Civil P.C., with reference to the objections relating to territorial jurisdiction. Thee policy underlying Section 21 and Section 99 Civil Procedure Code and Section 11 of the Suits Valuation Act, is the same, namely that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless has been a prejudice on the merits." In my opinion the appellant cannot seriously complaint that the trial of the suit on merits has in any manner been prejudiced on account of the alleged under-valuation. Thus, the objection relating to the valuation of the suit must be over-ruled and I am satisfied that the suit was properly valued by the respondent and was cognizable by the learned Munsif. 11. The main contest in the case, however, was on the question as to whether the appellant was liable to be ejected and whether he could claim protection of the U.P. Rent Control and Eviction Act. It is admitted that the suit was filed without obtaining any permission under Section 3 of the Act and therefore the point which has to be decided is as to whether the appellant could in the circumstances of the case claim protection of the U.P. Rent Control Eviction Act. For this purpose the appellant relied on the allotment order dated the 27th February, 1950, (Exhibit 49) which was passed in the appellant's favour and which was in the following terms :- "Under the Meerut Control of letting and subletting order 1949, I hereby order that the accommodation scheduled below shall be let out by the landlord to Shri J.K. Sethi or Sethi and sons with immediate effect of vacation by the present occupant Shri Mohd. Ibrahim. The liability for payment of rent will accrue from the date of occupation by the allottee. The allottee will inform this office the day he takes possession." 12. It was submitted that the property which was let out to the appellant was "accommodation" within the meaning of the term as used in the U.P. Rent Control and Eviction Act, that the provisions of the said Act were therefore applicable to the present case and the suit for eviction of the appellant was bared. The learned counsel for the respondent impugned the validity of the allotment order and said that it was wholly void and inoperative in law and that it did not confer any right on the appellant, that the U.P. Rent Control and Eviction Act was not applicable to the facts of the present case and the applicant could not claim its benefit. The applicability of the Rent Control Eviction Act was attacked on two grounds, firstly that the premises were not vacant and hence the Rent Control and Eviction Officer had no jurisdiction to pass the allotment order, and secondly that the subject-matter of the allotment was not "accommodation" and consequently the allotment order was null and void. The applicability of the Rent Control Eviction Act was attacked on two grounds, firstly that the premises were not vacant and hence the Rent Control and Eviction Officer had no jurisdiction to pass the allotment order, and secondly that the subject-matter of the allotment was not "accommodation" and consequently the allotment order was null and void. I have therefore, to examine these two contentions which were raised by the respondent in order to challenge the allotment order on which the appellant placed reliance. 13. Section 7 of the U.P. Act 3 of 1947 as it stood in 1950 when the allotment order was passed was worded as follows :- "7 (1)(a) The District Magistrate may by general or special order, require a landlord to give intimation that any accommodation of which he is the landlord is or has fallen vacant, and to let or not to let such accommodation to any person." The appellant argued that the District Magistrate was competent to pass an allotment order in respect of the accommodation which, even though not actually vacant, was about to fall vacant. Reliance was placed on the express direction in the allotment order that it would come into effect of 'vacation by the present occupant Sri Ibrahim. This contention would have been perfectly sound if Section 7 of the U.P. Rent Control and Eviction Act had contemplated the passing of an allotment order or allotting of an accommodation in case of prospective vacancy. That provision was for the first time introduced in the U.P. Rent and Eviction Act by the U.P. Temporary Control of Rent and Eviction (Amendment) Act, 1954, (U.P. Act XVII of 1954) which added a definition of the term "vacant" by inserting a new clause (h) in Section 2 of the Rent Control and Eviction Act in the following terms :- "(h) 'vacant' where used with reference to any accommodation, includes an accommodation about to fall vacant an intimation whereof has been sent by the tenant or the landlord to the District Magistrate." Thus the Act as it stood in 1950 did not confer any jurisdiction on the District Magistrate to pass an order of allotment in respect of accommodation which was about to fall vacant. 14. 14. In the alternative it was contended on behalf of the appellant that even in the absence of the words "about to fall vacant" Section 7 of the Act as it originally stood was construed by a decision of this Court as including a power to pass an allotment order in respect of accommodation which was about or likely to fall vacant. Reliance was placed on Rex v. Nain Sukh Das, AIR 1949 Allahabad 345 (DB), wherein it was held :- "Expression "falling vacant of any accommodation" though not very happily worded, is capable of both the interpretation (i) that the accommodation is about to fall vacant, and (ii) that it has actually fallen vacant." It would be evident that the section which was construed in the above case was differently worded and read as under :- 7. Control of Letting :- (1)(a) The District Magistrate may, by general or special order, require a landlord to give intimation of the falling vacant of any accommodation of which he is the landlord and let such accommodation to any person." This was the language of Section 7 of the U.P. Rent Control and Eviction Act as it was originally enacted by U.P. Act No. 3 of 1947. This however, was again amended by U.P. Act XIV of 1948 and for sub-section (1) of Section 7 as it formerly stood the following was substituted :- "7(1)(a) The District Magistrate may by general or special order, require a landlord to give intimation that any accommodation of which he is the landlord is or has fallen vacant, and to let or not to let such accommodation to any person." The main meaning of the words used in the section quoted above are that no jurisdiction accrues to the District Magistrate to order an accommodation to be let or not to let unless it is or has fallen vacant. That section was interpreted in several decisions of this Court and it was held that if the Rent Control and Eviction Officer passed an order of allotment under Section 7 of the Act before the whole accommodation had actually fallen vacant, the order would be clearly invalid, See Shri Badri Prasad v. The District Magistrate, 1952 A.L.J. 213. That section was interpreted in several decisions of this Court and it was held that if the Rent Control and Eviction Officer passed an order of allotment under Section 7 of the Act before the whole accommodation had actually fallen vacant, the order would be clearly invalid, See Shri Badri Prasad v. The District Magistrate, 1952 A.L.J. 213. It cannot be doubted that at the time when the allotment order was passed in the present case Mistri Ibrahim who was the original lessee has not vacated the premises. By his notice dated the 21st April, 1950, (Exhibit 3) the appellant had informed Lala Harbans Lal the owner that the former had started businesses over the disputed property in partnership with M/s R. Sethi and Sons. According to the contents of the notice both Mistri Ibrahim and the present appellant were in possession of the property in suit on 21.4.1950 though the property had already been allotted to the appellant on 27.2.1950. Thus, it is clearly established by the evidence in this case that the lessee namely Mistri Ibrahim not vacated the premises on 27.2.1950 when the allotment order was passed. Even if it be assumed for a moment that it was expected that he would vacate the premises, as I have already indicated, on the terms of Section 7 as it stood at the relevant time no allotment order could have been passed by the Rent Control and Eviction Officer expectation of such vacancy. It must, therefore, be held that the allotment order was void and the appellant could not derive any benefit from the same. 15. The other ground on which the validity of the allotment order has been challenged is that the property which formed the subject matter of allotment was not 'accommodation'. There is no doubt that the present appellant merely stepped into the shoes of Mistry Ibrahim, the original lessee. The case pleaded in paragraph 15 of the written statement was that the appellant acquired the good will business and the workshop of Mistri Ibrahim and settled on the land with the consent of Lala Harbans Lal. In other words, he was the assignee of the original lessee and he could not claim any higher rights then him. The allotment order must necessarily be construed in terms of those conditions which attached to the very property which was the subject matter of the original lease. In other words, he was the assignee of the original lessee and he could not claim any higher rights then him. The allotment order must necessarily be construed in terms of those conditions which attached to the very property which was the subject matter of the original lease. In this connection the appellant relied on a letter (Exhibit 25) which was the draft of the objection proposed to be filed (but which perhaps never filed) by Harbans Lal against the allotment order. It contained some remarks as to the terms and conditions o which the property was originally let out. It was the plaintiff's own document and the appellant relied on this for the purposes of supporting his contention. The letter recited that by means of the original agreement dated 7.1.1941 by which the property was let out to Mistri Ibrahim the lessee was authorised to make temporary construction. He was to vacate on a notice of 15 days and remove his material. The said document contained an allegation that "in accordance with it he has constructed a shed at his own cost which he is liable to remove whenever the land is required by him." It is thus clear that according to the terms of the lease was only authorised to make temporary constructions which also he was liable to remove on service of 15 days notice to him. It is admitted that the only structures which where raised by Mistri Ibrahim consisted of a Kothri and mud-roofed verandah. 16. The question therefore arises as to whether on the date of the allotment order if the structures stood on the land, could it be said that they had the effect of converting the land into "accommodation" so as to make it amenable to an allotment order. The lower appellate Court has recorded a categorical finding that only land was lease to Mistri Ibrahim. It appears that the other constructions on the site were made by the appellant, may be at considerable expense, at some later point of time. It is not alleged that they also existed at the time when the allotment order was passed. Therefore, in determining the legal effect and implication of the allotment order I have to take into consideration only the structures consisting of the Kothri and the verandah which existed at that time. It is not alleged that they also existed at the time when the allotment order was passed. Therefore, in determining the legal effect and implication of the allotment order I have to take into consideration only the structures consisting of the Kothri and the verandah which existed at that time. As a matter of fact, the unambiguous finding recorded by the lower appellate Court that the lease was only in respect of land clinches the point against the appellant. Nevertheless, since the various questions of law have been vigorously argued before me it would not be out of place to enter into a discussion of the legal aspect of he controversy. The contention of the appellant was that irrespective of the fact as to whether the aforesaid constructions were made by the lessee the result was that on the date of the allotment order there was constructions this satisfied the requirements of the term 'accommodation as defined in the U.P. Control of Rent and Eviction Act and consequently the allotment order was valid. I am unable to accede to this submission. An allotment order is nothing but a direction to the landlord to let or not to let a certain property. Obviously such a direction cannot be addressed to the landlord in respect of a property of which he is not the owner or of which he cannot claim to be the landlord. Therefore, it is not possible to accept the wide proposition that in all circumstances whenever ostensibly there are structures at the time when the allotment order is passed it is conclusive of the fact that there is an 'accommodation' in respect of which an allotment can be validity made. Many factors have to be taken into consideration before deciding as to whether an accommodation did actually exist so as to form the subject-matter of an order of allotment. The crucial question which would arise in such a situation would be as to whether those structures belonged to the landlord. In my opinion so long as an allottee is not able to establish the title of the landlord with respect to the structures, he cannot avail himself merely of their physical existence and argue that an 'accommodation' entitling him to an allotment did exist in law. In my opinion so long as an allottee is not able to establish the title of the landlord with respect to the structures, he cannot avail himself merely of their physical existence and argue that an 'accommodation' entitling him to an allotment did exist in law. It is possible that a landlord may have authorised the making of constructions or such structures may have been built by a lessee entirely on his own costs and may, be within the knowledge or without the knowledge of the landlord and without his consent. Where the construction had been authorised by the landlord and continued to exist pursuant to his consent or agreement in that behalf it can legitimately be inferred that these were constructions made with the consent or in accordance with an agreement with the landlord, it is not possible to attribute ownership of the structures to the landlord can they cannot be said to form part of the property which was the subject matter of the original lease and which alone was available for allotment at the time when orders were passed under Section 7 of the U.P. Rent Control Act. The learned counsel for the appellant relied on a decision of Dhavan. J. in J.N. Tandon v. R.K. Dass, 1965 A.L.J. 79 and Municipal Board Meerut v. Bir Singh, AIR 1965 Allahabad 527, which contained the following dictum :- "The words 'any building or part of building which was under erection or was constructed on or after the 1st January, 1951' in Section 1 A of the U.P. (Temporary) Control of Ret and Eviction Act, 1947, were intended to include any building which was constructed on after this date irrespective of whether it was constructed by the landlord, or the tenant, or any one else with the landlord's permission." Relying on that passage the appellant argued that the Kothri and the verandah having been admittedly constructed before the allotment, it followed that the property was 'accommodation'. The facts in J.N. Tandon's (supra) case, are however, clearly distinguishable. Firstly, that case was concerned with the interpretation of Section 1-A of the Rent Control and Eviction Act, which is wholly outside the controversy in the case before me. Further, the above dictum was founded on the essential condition that the construction had been made with the landlord's permission. The facts in J.N. Tandon's (supra) case, are however, clearly distinguishable. Firstly, that case was concerned with the interpretation of Section 1-A of the Rent Control and Eviction Act, which is wholly outside the controversy in the case before me. Further, the above dictum was founded on the essential condition that the construction had been made with the landlord's permission. That was the dominating circumstance which was regarded as justifying the conclusion on the facts of that case that the constructions were made on behalf of the landlord himself. In the case before me, on the other hand, the agreement to which there was a reference in Exhibit 25 clearly provided for a construction of a temporary nature alone and that too was liable to be removed on 15 day's notice. Thus, there was not the least intention to permit the lessee to make any constructions which were either of a permanent nature or which were not liable to be removed. More over, it is made clear at page 108 of the reports in J.N. Tandons (supra) case that the tenant did not erect the building gratis but for valuable consideration. In that view of the matter there was justification for treating the structures as being those of the landlord himself. Therefore, the above case cannot be regarded as an authority for the proposition that whenever on the date of the allotment order any constructions made by erstwhile lessee are found to exist on open land which alone was the property originally leased, it is converted into 'accommodation' so as to bring it within the purview of the Rent Control and Eviction Act. 17. Some assistance was also sought by the appellant for his contention by referring to the provisions of Section 108(h) of the Transfer of Property Act which runs as follows :- "108. In the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one another, respectively posses the right and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased :- (a) ............. (b) ............. (c)............. (d)............. (e)............. (f)............. (g)............. (b) ............. (c)............. (d)............. (e)............. (f)............. (g)............. (h) the lessee may even after the determination of the lease removes, at any time whilst he is in possession of the property leased but not afterwards all things which he has attached to the earth, provided he leaves the property in the state in which he received it". It was submitted that since Mistri Ibrahim had not removed the structures while he was in possession of the property, his rights came to an end and the property must be held to belong to Lala Harbans Lal. This contention in my opinion is not warranted by the provisions of Section 108 (h) of the Transfer of Property Act. The effect of removal of such structures put up by a lessee who is actually in possession of the property is not necessarily the extinction of his ownership or title and much less the vesting of the same in the owner of the property. The above provision came in for interpretation before a division Bench of this Court in Municipal Board Meerut v. Bir Singh (supra). The ratio of the case was summed up by Oak, J. (as he then was) in paragraph 16 of the reports in the following words :- "With respect, we agree the view taken by Calcutta High Court in the case of India Electric Works. Clause (h) appears under part (B) of Section 108, Transfer of Property Act dealing with right and liabilities of the lessee. Clause (h) does not lay down that, if a lessee leaves an article on the land either deliberately or through inadvertence, the lessor becomes owner of the article." Therefore, the contention of the appellant that Mistri Ibrahim having failed to remove construction while he was in possession it must be presumed that the lessor became the owner, must be rejected. 18. In my opinion the question as to whether a property fulfils the ingredients of an "accommodation" given in the U.P. Control of Rent and Eviction Act is inextricably linked with the fact as to what was the subject-matter of the lease itself. Any structure physically existing cannot always be pressed into service for holding either that such a structure included in the lease or that it formed part of the property which was allotted. In Mohd. Any structure physically existing cannot always be pressed into service for holding either that such a structure included in the lease or that it formed part of the property which was allotted. In Mohd. Sami v. Smt. Savitri Devi, 1957 A.L.J. 435, it was held :- "An open land cannot come under the definition of "accommodation" given in Section 2(a) of U.P. (Temporary) Control of Rent and Eviction Act 1947. Therefore where the lease was of an open land and the building was constructed subsequently the U.P. (Temporary) Control Rent and Eviction Act would apply". 19. The same question came up for consideration in Sri Hari Kishan v. Lala Data Ram Gupta, First Appeal No. 172 of 1964 decided by Katju and Kirty. JJ on 7.9.1968. Briefly stated that facts of the case were that by a rent note dated 10.3.1939. Exhibit 1 the plaintiff Lala Ram Chandra Das had leased certain property to Lala Data Ram. Under the deed the right of occupation was given to Lala Data Ram for a period of 20 years and he had further been given the right to demolish the existing construction and to make constructions of his own for occupation or for letting them out to whomsoever he liked. After the expiry of the stipulated period of 24 years the tenancy of Lala Data Ram was to come to an end and Lala Ram Chandra Das was given a right to get the shops and houses etc. vacated by Lala Data Ram, who would not be entitled to get any compensation for the new constructions, which were put up by him. It was pleaded in the plaint that after the expiry of the stipulated period of 24 years the defendant had been called upon to vacate and to hand over possession of the premises including the newly constructed building etc. to the plaintiffs and he having refused to do so and having asserted that under the provision of the U.P. Rent Control and Eviction Act he was not liable to be ejected, the plaintiffs had to come to Court to seek the reliefs mentioned in the plaint. It was urged on behalf of the appellant that the latter conduct of the lessor unmistakably proved that the respondent had admitted the appellant to be the tenant in respect of constructions and not merely the site on which they stood. It was urged on behalf of the appellant that the latter conduct of the lessor unmistakably proved that the respondent had admitted the appellant to be the tenant in respect of constructions and not merely the site on which they stood. That contention was based on the existence of the structures on the land and the landlord permitting the appellant to continue as tenant and use those structures. 20. The above argument was repelled and it was held that the lease was in respect of the land only and did not satisfy the definition of "accommodation" as contained in the U.P. Rent Control and Eviction Act. It was held :- "In so far as this Court is concerned it is now settled law that there was a lease of land only and if on such land the lessee had put up construction or erected building the lessee would not be entitled to the protection provided under section 3 of the U.P. Act. Therefore, in the instant case, the plaintiffs would be entitled to a decree for ejectment" The learned Judges who decided First Appeal No. 172 of 1964 relied on a decision of the Supreme Court in Dr. A.K. Dhairyawan v. J.R. Thakur, AIR 1958 Supreme Court 789, from which the following passage was cited :- "Normally, under Section 108 of the Transfer of Property Act, before the expiry of the lease a lessee can remove all structures and buildings erected by him on the demised land. All that was necessary for him to do was to give back the land to the lessor, on the termination of the lease, in the same condition as he found it. The ownership, therefore, of the building in this case was not with the lessors but was with the lessee. Under Section 108 of the Transfer of Property Act there was nothing to prevent the lessees contracting to hand over any building or structures erected on the land by them to the lessors without receiving any compensation. In other words, although under Section 108 the lessees had the right to remove the building, by the contract they had agreed to hand over the same to the lessor without the right to receive compensation at the end of the lease, the matter being entirely one of contract between the parties. In other words, although under Section 108 the lessees had the right to remove the building, by the contract they had agreed to hand over the same to the lessor without the right to receive compensation at the end of the lease, the matter being entirely one of contract between the parties. Such a contract, however, did not transfer the ownership in the building to the lessors while the lease subsisted." 21. As I have already observed, the mere existence of structures does not lead to the conclusion that the lease which was expressly confined to the land embraced at a later stage the structures as well Notwithstanding the existence of constructions it may be true on the facts of a particular case that the property forming the subject-matter of the lease was land alone. I have already adverted to the finding recorded by the Court below in the instant case that only the land was the subject-matter of the lease. Even where such constructions are made with the consent of the landlord and are stipulated to be removed on the expiry of the lease it has been held that the lease pertained to the land only and not to the building to be constructed by the tenant. Thus, in Krishnapasuba v. Dattaraya, AIR 1966 Supreme Court 1024, the facts were that on a portion of the land the tenant had build a shed of corrugated iron sheets at his own cost. Clause 5 of the rent note stated that on termination of the tenancy the tenant would remove the structures raised by him. On an interpretation of the lease it was held that the subject-matter of the letting was open land and the rent was payable in respect of the open land only and not in respect of the structures raised by the defendant. It was observed :- "It is a question of construction of a building lease whether the lease is a demise of the land only, or whether it is a demise of the land together with building to be constructed by the tenant.......In this case we are not concerned with a building lease. The building on the land was constructed by the tenant at his own cost before the execution of the rent note. The building belonged to the tenant and was not the subject-matter of the letting. The building on the land was constructed by the tenant at his own cost before the execution of the rent note. The building belonged to the tenant and was not the subject-matter of the letting. The land only was the subject-matter of the letting." 22. Thus, in any view of the matter the subject-matter of the lease in the present case was land only and not the structures. It follows that the property which was available for the purpose of passing the allotment order was precisely the property which was the subject-matter of the lease. If constructions were made on the site either by the original lessee or by his successor i.e. the appellant, they were made by them at their own risk. The rights and liabilities of the appellant were co-extensive with those of the previous lessee Mistri Ibrahim and if he was according to the original agreement liable to remove the constructions on notice by lessor the appellant could not claim any higher rights in respect of whatever structures they might have added. As I have already pointed out, those structures could not either on facts or in law be deemed to have become the property of the landlord or the owner and, therefore, the property which was dealt with by the appellant and by the original lessee was only land and not "accommodation" within the meaning of that terms as used in the U.P. Control of Rent and Eviction Act. Thus the appellant could not claim the benefit of the provisions of U.P. Act No. 3 of the 1947 and the allotment order dated 27.2.1960 passed in his favour did not confer any right upon him as it was void and ineffective in law. The appellant could have succeeded in his contention only if he could satisfy the Court that either factually or by fiction of law the title in the structures admittedly existing on the site passed to the landlord so that it could be attributed to him and he could under Section 7 let or sub-let the same. The appellant having failed to satisfy that this condition existed in the present case the whole transaction related to a bare piece of land and the lease could not be said to be a lease in respect of any "accommodation". 23. Two other points were urged by the learned counsel for the appellant. The appellant having failed to satisfy that this condition existed in the present case the whole transaction related to a bare piece of land and the lease could not be said to be a lease in respect of any "accommodation". 23. Two other points were urged by the learned counsel for the appellant. Firstly, it was urged that no valid notice was saved on the appellant for termination to tenancy. It was argued that as the tenancy was for manufacturing purpose the lease should be deemed to be one from year to year. The finding of the Courts below however is that it had not been proved that at the inception of tenancy the land was taken for manufacturing purposes. On the other hand, the appellant himself had deposed that he was a tenant of the land on a rent of Rs. 12/- per month. Under Section 106 of the Transfer of Property Act there was a presumption that the tenancy was from month to month subject to a contract to the contrary. The documentary evidence consisting of rent receipts clearly proved that the rent was being actually paid on monthly basis and it suggested that the parties had agreed that the tenancy would be from month to month. I, therefore, find no force in this contention and there is no reason to disturb the finding recorded by the Courts below. 24. Lastly, it was contended that the plaintiff's suit was barred by estoppel. The learned counsel for the appellant referred to the finding recorded by the lower appellate Court that the construction were made within the knowledge of the plaintiffs. However, the principle of estoppel cannot be invoked by the appellant as the necessary ingredient of the principle of estoppel is that a party should have been led to certain course of conduct on the representation of another party. The Courts below have found no action of the plaintiffs on the basis of which it could be stated that the appellant altered there conduct. Hence, if the lessee chooses to make unauthorised constructions even though at his risk own and the lessor does not take any action, the latter cannot on that account be estopped from challenging the action of the lessee in a suit brought for his ejectment. Hence, if the lessee chooses to make unauthorised constructions even though at his risk own and the lessor does not take any action, the latter cannot on that account be estopped from challenging the action of the lessee in a suit brought for his ejectment. Thus, on the facts of the present case the principle of estoppel was not applicable and the respondents' suit was not barred. 25. In the result this appeal has no force and is dismissed with costs.