JUDGMENT Deoki Nandan, J. - This is a defendant's second appeal in a suit for ejectment, arrears of rent as also damages for unlawful use and occupation after the termination of tenancy. 2. The plaintiff claimed that he had let out an open piece of land at the rate of Rs. 10/- per month. The defendant, on the other hand claimed that the rate of rent was Rs. 4/- per month and what had been let out was not an open piece of land but a building. It was also pleaded in defence that the notice terminating the tenancy was invalid and that arrears of rent had been deposited under Section 30 of U P. Act No. 13 of 1972 on the plaintiffs refusal to accept the same and thus the defendant was not in arrears of rent. 3. The trial court found that what had been let out was not a building and that U. P. Act No. 13 of 1972 was not applicable to the case, but the rate of rent was Rs. 4/- per month only and the notice served by the plaintiff was illegal on account of the wrongful refusal by her to receive the amount tendered at that rate. In the result, the trial court decreed the suit for recovery of rent at the rate of Rs. 4/- per month, directing the plaintiff to withdraw Rs. 28/- deposited in the Court of Munsif, West Allahabad, and directing the defendant to pay the sum of Rs. 175/- to the plaintiff. 4. The plaintiff appealed against the said decree of the trial court. The lower appellate court agreed with the finding of the trial Courts that what had been let out was an open piece of land and not a building and, that therefore U. P Act No. 13 of 1972 was not applicable to the case, but differed on the finding about the validity of the notice. It held that the notice terminating the tenancy under Section 106 of the Transfer of Property Act was valid in law. In the result, it decreed the plaintiffs suit also for ejectment of the defendant, and in addition to the arrears of rent at the rate of Rs. 4/- per month, also for damages for unlawful use and occupation at the same rate from 15th August, 1974 onwards. 5. In the result, it decreed the plaintiffs suit also for ejectment of the defendant, and in addition to the arrears of rent at the rate of Rs. 4/- per month, also for damages for unlawful use and occupation at the same rate from 15th August, 1974 onwards. 5. Unfortunately, the record of the suit appears to have been burnt in the fire on 1st May, 1978 in the civil court buildings at Allahabad and the District Judge has reported that there is little hope of availability of the record. Under the circumstances permitted the appellant to file correct copies of such of die papers on the record as she wished to rely on along with an affidavit verifying then correctness and gave an opportunity to the respondent to point out errors, if any, in the copies so filed. Copies of certain documents have accordingly been filed on behalf of the defendant-appellant with an affidavit of her son Mohan Lal. The plaintiff-respondent Smt. Tara Devi has filed a counter affidavit but has stated thereunder that she was unable to verify the authenticity of the copies fled for want of certified copies with her. The copies of the documents filed were accordingly admitted by me as correct copies of the papers on record for the purposes of hearing of the present second appeal. 6. Mr. K. B. Mathur, learned counsel for the defendant appellant raised two contentions. Firstly, that what was let out to the defendant-appellant was a building and not merely an open piece of the land and secondly that the quit notice was invalid in law on the ground that it was conditional. 7. As to the first contention the learned counsel urged that the evidence showed that there was a structure in the nature of a thatched hut in existence when the contract of tenancy was entered into and that being so it must be held that the tenancy related to a building. 7. As to the first contention the learned counsel urged that the evidence showed that there was a structure in the nature of a thatched hut in existence when the contract of tenancy was entered into and that being so it must be held that the tenancy related to a building. Now what is material to be seen is not only whether a roofed structure was in existence at the time when the contract of tenancy was entered into, but also whether the roofed structure belonged to the landlord, for in this case it has clearly been stated by the plaintiff-respondent that the roofed structure did not belong to her but had been raised by the defendant herself who had been in permissive possession of the land even prior to the letting out of the land to her. I have looked into the oral evidence led by the parties in this case which was placed before me, and having perused the judgments of the two courts below I am unable to find any error in their concurrent finding to the effect that what had been let was an open piece of land and not the thatched hut thereon, much less any error of law. 8. As to the contention that the quit notice was illegal, a copy of that notice has not been placed before me as it was not available with the defendant-appellant. However, the learned counsel referred me to the findings of the learned Munsif on issue No. 5 holding that the notice under Section 106 of the Transfer of Property Act was illegal because the rent paid by the defendant at the rate of Rs. 4/- per month wag refused by the plaintiff. That may be a good ground for holding that a tenant is not liable to ejectment on account of default in a case where Act No. III of 1947 or U. P. Act No. 13 of 1972 is applicable but cannot certainly be a ground for holding that notice under Section 106 of the Transfer of Property Act is bad. The learned counsel, however, wanted me to read the observations of the learned Munsif as indicating that the notice was conditional and not merely a composite notice of demand under Section 3 of Act III of 1947 and a notice terminating the tenancy under Section 106 of the Transfer of Property Act. The learned counsel, however, wanted me to read the observations of the learned Munsif as indicating that the notice was conditional and not merely a composite notice of demand under Section 3 of Act III of 1947 and a notice terminating the tenancy under Section 106 of the Transfer of Property Act. There is no warrant for any such contention, there is no material to hold that the notice was conditional and the condition having been fulfilled the plaintiff could not sue on its basis. On the other hand, the lower appellate court which had the advantage of having the notice Ex. A-l before it has discussed the matter in some detail and held that it was a valid notice under Section 106 of the Transfer of Property Act. 9. Lastly, I must deal with the rather unusual contention raised by the learned counsel He urged, on the basis of Annexures 7, 8 and 9 to the affidavit of Mohan Lal Yadav that in the appeal filed by the plaintiff before the lower appellate court the defendant had filed a cross-objection, praying that the finding of the trial court on the points raised by the grounds of cross-objection may be vacated and the decree may be maintained. As it happened, the cross-objection appears to have been ignored by the lower appellate court while delivering its judgment on the appeal before it and an application was made on behalf of the plaintiff who was the appellant before the lower appellate court praying that the judgment may be corrected by also ordering the dismissal of the cross-objection. The lower appellate court rejected that application and it is now urged by the learned counsel for the defendant-appellant that her cross-objection must be deemed to be still pending in the lower appellate court and that therefore, this Court must set aside the judgment of the lower appellate court and remand the appeal for rehearing. Now, the decree of trial court in so far as the claim for ejectment was dismissed was in favour of the defendant. Even the finding about the rate of rent at which the arrears were decreed against her was in the defendants favour. She did not impugn the correctness of the decree for recovery of the rent which was passed against her. Even the finding about the rate of rent at which the arrears were decreed against her was in the defendants favour. She did not impugn the correctness of the decree for recovery of the rent which was passed against her. In these circumstances there was no occasion for her to file any cross-objection before the lower appellate court in the appeal filed by the plaintiff against the dismissal of her claim for ejectment of the defendant. The defendant could have without filing any cross-objection supported the decree of the trial court dismissing the claim for ejectment and even by challenging the correctness of the findings against her. The correctness of those findings was challenged before the lower appellate court and the challenge was duly considered and decided by it as is clear from the judgment under appeal. The cross-objection was wholly misconceived and the fact that a formal order rejecting it was not incorporated in the judgment does not affect the substance of the matter. I accordingly overrule this contention and take it that the cross-objection must be deemed to have been disposed of by the judgment under appeal. 10. The appeal fails and is dismissed with costs.