Hansraj v. Pt. Inder Dutt — 1978 DIGILAW 759 (ALL)

JUDGMENT J M. L. Sinha, J. :- This is a defendants' second appeal arising out of the judgment and decree dated 28th February, 1974 passed by the Civil and Sessions Judge, Saharanpur, in Civil Appeal No. 128 of 1972. 2. The facts giving rise to this appeal, briefly stated, are as follows: Pt. Inder Dutt, hereinafter called the 'respondent' was the owner-landlord of the land detailed in the plaint. It is alleged that the appellants took the aforesaid land on rent for three years from 1st May, 1962 to 30th April, 1965, on a rental of Rs 13/- per month. The appellants, however, did not pay any rent with effect from 1st August 1962. It was also alleged that the appellants sub-let a portion of the land in suit to the respondent nos. 2 to 6. On these allegations the respondent filed a suit for the eviction of the appellants and of respondent nos. 2 to 6 from the land in suit. 3. The suit was resisted by the appellants, inter alia, on the grounds that they were tenants only of a portion of the land in suit and the remaining portion of the land was in possession of respondent nos. 2 to 6 with the permission of the predecessor-in-interest of the respondent ; that no valid notice was served on the appellants terminating their tenancy and that the suit was bad for misjoinder of causes of action. 4. The trial court held that the appellants were tenants only of a portion of the land in suit and that the remaining part of the land was in possession of respondent nos. 2 to 6 in their own right. However, the objection raised by the appellants regarding the validity of the notice was rejected. Other contentions, which are not more relevant for the disposal of this appeal, were also not upheld. In consequence thereof the trial court decreed the plaintiff's suit for possession over the land, shown by letters ABCDGF in the map, after ejectment of the appellants, together with arrears of rent and mesne profit at the rate of Rs. 13/- per mensem. 5. Feeling aggrieved against the judgment and decree of the trial court, the defendant as well as the appellants preferred appeals in the court of the District Judge. 13/- per mensem. 5. Feeling aggrieved against the judgment and decree of the trial court, the defendant as well as the appellants preferred appeals in the court of the District Judge. Saharanpur, the learned Civil and Sessions Judge, Saharanpur, who heard the appeals, concurred with the findings recorded by the trial court and dismissed both the appeals vide his order dated 28th February, 1974. The present appeal is directed against that judgment. 6. The first contention raised by the learned counsel for the appellant, before me was that the appellants are entitled to the benefit of section 39 read with section 40 of U.P. Act XIII of 1972. It was urged by the learned counsel that the entire amount having already been deposited by the appellants, first in compliance of the order passed by the lower court of appeal and then in compliance of the order passed in the present appeal, nothing remained to be paid by them and, consequently, the decree passed by the courts below regarding ejectment of the appellants must be set aside. 7. The first question that, therefore, falls for consideration is whether the appellants. are entitled to the benefit of section 39 of Act XIII of 1972. The benefit of section 39, in my opinion, is available to the tenant of a 'building' to which the old Act did not apply. According to the rent-deed (Ex. 55) it was open land that was let out to the appellants and not any building. It is true that under the terms of the rent-deed, the appellants had the permission to raise some temporary constructions, but it was expressly stipulated that on vacating the land the appellants will remove those constructions. It was explicitly mentioned in the rent deed that the appellants will not make any permanent construction on the land In suit. The structure raised by the appellant, therefore, belonged to him and he cannot be held to be the tenant thereof. Even after those structures had been raised, the appellants remained tenants of the land only. 8. In the case of Haridaya Narain Shukla v. Smt. Ram Pyari and others, 1971 R.C.J. (S.N. 70) 53 a plot of land was Leased out. Thereafter some structures were raised on that land. A question arose as to whether the land in suit was an 'accommodation' within the meaning of section 2(a) of U.P. Act No. III of 1947. 8. In the case of Haridaya Narain Shukla v. Smt. Ram Pyari and others, 1971 R.C.J. (S.N. 70) 53 a plot of land was Leased out. Thereafter some structures were raised on that land. A question arose as to whether the land in suit was an 'accommodation' within the meaning of section 2(a) of U.P. Act No. III of 1947. It was observed : "It is true that there is nothing is the definition of accommodation' (as given in the Act) to indicate that the residential accommodation shall be owned by the landlord or by the tenant, but the Act is a statute framed for controlling the letting and the rent of buildings and prevent the eviction of tenants therefrom. The definition of accommodation as given in section 2(a) of the Act can no account include a building owned by the tenant himself, because he cannot himself be the landlord and the tenant of the same premises. The constructions in the present case were found to be of a temporary nature but assuming that the constructions were of a permanent nature and were constructed by the tenant himself then also as between the landlord and the tenant the existence of the buildings cannot be taken into account for determining the rights of the landlord." 9. In the case of Narayan Chand Das v. Panna Lal, 1969 R.C.J. 392 again an open piece of land was let out to the defendant. The document of lease permitted the defendant to build tin-shed on the land. A question arose whether the premises in suit constituted an 'accommodation' so as to attract the provisions of U. P. Act No. III of 1947. It was held : "In view of the terms of the lease the tin-shed constructed by the defendant could not vest in the landlord. It would remain the property of the tenant. The tenant was entitled to take it away while vacating the land. It cannot, therefore, be said that the tin-shed over became the subject matter of the contract of tenancy. It could not be treated to be an accretion to the tenancy between the parties. It was an addition made by the defendant under an express agreement with the plaintiffs for his own benefit and enjoyment. It cannot, therefore, be said that the tin-shed over became the subject matter of the contract of tenancy. It could not be treated to be an accretion to the tenancy between the parties. It was an addition made by the defendant under an express agreement with the plaintiffs for his own benefit and enjoyment. If the construction did not constitute the subject matter of the tenancy, it could not be said that the defendant was a tenant of thereof. If the defendant was not a tenant of the construction, he could not be a deemed to be a tenant of an accommodation by including that construction as if it were the subject matter of the tenancy, and thereafter applying the definition of the term "accommodation" as given in the Control of Rent and Eviction Act." 10. In the case Jagat Ram Sethi v. Rai Bahadur D.D. Jain, 1972 R.C.J. 518 one Harbans Lal deceased leased out an open land to one Mistri Ebrahim, who raised some structures thereon. Mistri Ebrahim left for Pakistan allowing the appellant to take possession of the property Harbans Lal recognised him as his tenant. Harbans Lal died after creating a trust. Thereafter after a suit was filed for the ejectment of the appellant after a termination of this tenancy. A contention was raised on behalf of the appellant that, since the land had roofed structure, it was an accommodation with in the meaning of section 2(9) of U.P. Act III of 1947 and hence the suit was barred by section 3 of U.P. Act III of 1947. The court held : "Since Mistri Ibrahim did not put the landlord in possession and transferred the land together with the structure put up by him to the appellant the transferee stepped into the shoes of the lessee. Thus so far as the appellant and Harbans Lal were concerned the former was tenant only of the land and no accommodation had been rented out to him by the latter. As such the provisions of section 3 of the Act would not be attracted. The High Court also considered this point and expressed the opinion that the structures never became the property of the landlord. (Underlining by me). 11. As such the provisions of section 3 of the Act would not be attracted. The High Court also considered this point and expressed the opinion that the structures never became the property of the landlord. (Underlining by me). 11. Now, since the appellants cannot be treated to be the tenants of the structures but only of the land, section 39 of the Act XIII of 1972 can have no application. 12. Learned counsel for the appellants referred me to the definition of the word 'building' as contained in section 3(1) of U.P. Act No. XIII of 1972 which reads as follows : "(i) 'building' means residential or non-residential roofed structure and includes : (i) any land (Including any garden) garages and out-houses, appurtenant to such building ; (ii) any furniture supplied by the landlord for use in such building; (iii) any fittings and fixtures affixed to such building for the more beneficial enjoyment thereof ;" It was pointed out that there is nothing in the definition of the word 'building' to indicate that structures on the land being erected by a tenant should not be taken into account in order to determine whether it is a building or not. True it is so, but we are here concerned with section 39 of the Act. The word 'building' occurring in section 3(i) has to be interpreted in the context in which it has been used in section 39. As already stated by me earlier, section 39 will apply only when a suit is filed for eviction of a 'tenant' of a 'building' to which the old Act did not apply. The word 'building' is thus relatable to the word 'tenant' and has to be constructed in that context. 13. As already stated by me earlier, section 39 will apply only when a suit is filed for eviction of a 'tenant' of a 'building' to which the old Act did not apply. The word 'building' is thus relatable to the word 'tenant' and has to be constructed in that context. 13. The conclusion reached above by me also stands fortified by the fact that in regard to a land let out to a tenant on which permanent structure is raised by tenant, either before or after the commencement of Act XXVIII of 1976 (by which Act XIII of 1972 has been amended), the legislature has made separate provisions in Section 29-A. If section 39 was intended to apply even to those case where the premises let out consisted of open land upon which structure were raised by the tenant, there was hardly any need for enacting section 29-A. Subsection (6)(a) of section 29-A provides that in any suit or appeal or other proceeding pending immediately before the date of commencement of section 29-A no decree for eviction of a tenant from any land to which section 29-A applies, shall be passed or executed except on one or more of the grounds mentioned in sub-section (2) of section 20, provided the tenant, within a period of three months from the commencement of section 29-A by, an application to the Court, unconditionally offers to pay to the landlord, the enhanced rent of the land for the entire period in suit and onwards at the rate of ten percent per annum of the prevailing market value of the land together with costs of the suit. It was not argued before me that the appellants have complied with the provisions contained in subsection (6) of section 29-A. 14. In the result, I conclude that the appellants are not entitled to the benefit of section 39 read with section 40 of U.P. Act No. XIII of 1972. 15. Learned counsel for the appellants next contended that, in any, case, the notice served notice the appellants was not a valid notice. A copy of the notice is Ex. 63 on record. 15. Learned counsel for the appellants next contended that, in any, case, the notice served notice the appellants was not a valid notice. A copy of the notice is Ex. 63 on record. It was pointed out by the learned counsel for the appellants that, while this notice called upon the appellants to vacate the premises in suit on the expiry of the period of 30 days from the date of the receipt of the notice, it did not state that the tenancy of the appellants was terminated. Reference in this connection was made to a Division Bench decision of this Court in the case of Ahmad Ali v. Mohammad Jamal Uddin, AIR 1963 Allahabad 581. It was no doubt observed in that case that the notice terminating the tenancy may include a demand for possession, but a notice only demanding possession cannot be interpreted as a notice terminating the tenancy. 16. Learned counsel for respondent no. 1, however, pointed out that in the instant case no notice under section 106 of the Transfer of Property Act was necessary because the lease was for a fixed period commencing from 1st May, 1962 and ending on 30th April, 1965. Learned counsel painted out that there is no evidence to indicate that any rent was accepted by respondent no. 1 subsequent to 30th April, 1965 to lead an inference that the appellants were tenants holding over. It was also pointed out by the learned counsel for respondent no 1 that a concurrent finding has been recorded by both the courts that the lease in question was a fixed term lease. 17. The argument raised by the learned counsel for respondent no. 1 finds support from the contents of the lease deed (Ex. 55). In the preamble of the document it is mentioned that the lease was for a period of three years commencing from 1st May, 1962 and ending on 30th of April, 1965. In clause 14 of the lease deed it is mentioned that on the expiry of the period of the lease, the appellants shall vacate the land and deliver its possession to the landlord. Since the lease in the instant case was for a fixed period, it came to an end by efflux of time and did not beg a notice for termination thereof. 18. Since the lease in the instant case was for a fixed period, it came to an end by efflux of time and did not beg a notice for termination thereof. 18. Learned counsel for the appellants at this stage invited my attention to para 9 of the plaint. The relevant part reads as follows : "That the rent (is) due from the defendants nos. 1 and 2 from 1 8.62 to 23.6.66 is Rs. 607.75 ps. at the rate of 13/- per month and compensation for use and occupation from 24th June, 1966 to 8th September, 1966 at the same rate is Rs. 32.50 ps. while the land and building tax is Rs. 32.45 ps......" 19. According to the learned counsel for the appellants, the contents of para 9 constituted an admission of the fact that the appellants continued as tenants even after 30th April, 1965. I do not, however, think that the pleadings should be read and construed in a pedantic manner. In pars 7 of the plaint it is stated "That the plaintiff served the defendants with the notice in May 1966 received by the defendants on 24.5.1966 to pay the rent etc. due from 1.8.1962 within a period of one month from the date of the notice......" Then in para (b) of the relief clause it is stated: "decree for Rs. 672/- as rent and compensation for use and occupation from 1.8.1962 to 8.9.1966 at the rate of Rs. 13/ -per month including Rs. 32.45 Land and Building Tax be passed in favour of the plaintiff against defendant nos. 1 and 2. 20. A cumulative reading of the different paras of the plaint thus shows that the word 'rent' in para 9 has been used in loose sense also to include what is technically called 'means profits' or damages for use and occupation. I have also looked into the notice and I fail to find any thing the rein on the basis of which it may be urged that respondent no. 1 treated the appellants to be his tenants after 30th April 1965. 21. The contention raised is, accordingly rejected. 22. Learned counsel for the appellants lastly urged that the suit was bad for misjoinder of causes of action. It was pointed out that the respondent no. 1 in addition to the appellants also impleaded respondent nos. 1 treated the appellants to be his tenants after 30th April 1965. 21. The contention raised is, accordingly rejected. 22. Learned counsel for the appellants lastly urged that the suit was bad for misjoinder of causes of action. It was pointed out that the respondent no. 1 in addition to the appellants also impleaded respondent nos. 2 to 6 on the allegation that appellants were the tenants of the land in suit and that they had sub-let portions thereof to respondent nos. 2 to 6. It was pointed out by the learned counsel for the appellants that, according to the concurrent findings recorded by the courts below, the appellants were tenants only of a portion of the land in suit and that the remaining portion thereof was in possession of respondent nos. 2 to 6 in their own right. It was urged that it is thus obvious that the suit was bad for misjoinder of causes of action. 23. It is true that, according to the finding recorded by the courts below, the appellants were tenants only of a portion of the land in suit, while the remaining portion thereof was in possession of respondent nos. 2 to 6 in their own rights. It cannot, however, be ignored that the plaintiff-respondent came to the court on the allegations That the appellants were tenants of the entire land in suit and that they had sub let a portion thereof to respondent nos. 2 to 6. On the pleadings contained in the plaint, therefore, there was no misjoinder of cause of action. 24. The mere fact that the case set up in the plaint has not been accepted by the courts below cannot, in my opinion, led to an argument that the case suffered from misjoinder of cause of action to an extent that the decree passed against the present appellants should be set aside. It Is not shown that by the alleged misjoinder of cause of action, any prejudice whatsoever was caused to the appellants in their defence. Under the circumstances, even assuming that there was some misjoinder of cause of action, no advantage therefor can accrue to the appellants. 25. No other contention having been raised, I find that this appeal is devoid of substance and must fail. 26. The appeal, accordingly, fails and is hereby dismissed with costs. Under the circumstances, even assuming that there was some misjoinder of cause of action, no advantage therefor can accrue to the appellants. 25. No other contention having been raised, I find that this appeal is devoid of substance and must fail. 26. The appeal, accordingly, fails and is hereby dismissed with costs. The appellants are, however, granted three months time to vacate the premises in suit. On the expiry of the said period, the appellants shall deliver the possession of the premises to the plaintiff-respondents.