Babu Ram v. Awadesh Kumari — 1987 DIGILAW 514 (ALL)

JUDGMENT K.P. Singh, J. - This second appeal has been preferred by the defendant-tenant against the judgment of Shri B. B. Agarwal, 3rd Additional District Judge, Bijnor, in dt. 12-2-1987 Civil Appeal No. 321 of 1983, Smt. Awadhesh Kumari v. Babu Lal. 2. The plaintiff-respondent had filed suit against the defendant on the allegations that the defendant had taken the disputed land on Rs. 50/- monthly rent for putting a Wooden Khoka to run a shop. The defendant failed to pay the rent from 29-1-1976, therefore, his tenancy was terminated through a notice dated 23-12-1977 and since the defendant did not deliver back possession to the plaintiff over the disputed land, hence the suit for arrears of rent, damages and recovery of possession over the disputed land. 3. The defence in the case is to the effect that the defendant was not in arrears of rent and that the provisions of S. 14, U. P. Act No. 13 of 1972 were attracted, therefore, the tenancy of the defendant stood regularised and that the Civil Court had no jurisdiction to try the suit and that in case any arrears of rent is found due the defendant was ready to pay the same and that the plaintiffs suit has been filed with wrong allegations,therefore, it should be dismissed. 4. The trial court through its judgment dated 19-9-1983 accepted the contentions raised on behalf of the defendant and dismissed the suit. According to the trial court the provisions of Act No. 13 of 1972 were attracted to the accommodation in question because on the date of the enforcement of the above mentioned Act, the Khoka existed which answered the description of building contemplated by the Act. It also came to the conclusion that the Civil Court had no jurisdiction to grant requisite relief to the plaintiff. Aggrieved by the judgment of the trial court the plaintiff preferred an appeal which has been allowed by the lower appellate court through its impugned judgment dated 12-2-1987. Against the judgment of the lower appellate court the defendant-tenant has approached this court under S. 100, Civil P. C. 4.A The main grievance of the learned counsel for the appellant before me is that the provisions of S. 29-A, U.P. Act No. 13 of 1972, are attracted and the lower appellate court has acted illegally in granting relief to the plaintiff-respondent. Second contention raised on behalf of the appellant is that the lower appellate court has misunderstood the scope of "the disputed land" in the present case, therefore, it has arrived at incorrect and illegal conclusions which deserve to be set aside. 5. Shri S. C. Budhwar, an Advocate of' this court, has appeared on behalf of the plaintiff-respondent. 6. After hearing learned counsel for the parties, I am unable to accept the contention of the learned counsel for the appellant that the lower appellate Court has misunderstood the scope of "the disputed land" in the present appeal. Annexure attached with the stay application indicates the length and breadth of the disputed land. No doubt Annexures IV and V attached with the stay application indicate a bigger area as disputed land but the disputed land is only that land which is beneath the Khoka indicated in Annexure (Commissioners map). The question under consideration in thus appeal is whether the appellant is entitled to claim benefit under S. 29-A, U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. The aforesaid Section reads as below : "29. A. Protection against eviction to certain class of tenants of land on which building exists. (1) For the purposes of this Section, the expressions "tenant" and "Landlord" shall have the meanings respectively assigned to them in (a) and (j) of S. 3 with the substitution of the word "land" for the word "building". (2) This Section applies only to land let out, either before or after the commend cement of this Section, where the tenant, with the landlords consent as erected any permanent structure and incurred expenses in execution thereof. (3) subject to the provisions hereinafter contained in this section, the provisions of S. 20 shall apply in relation to any land referred to in sub-s. (2) as they apply in relation to any building. (4) The tenant of any land to which this Section applies shall be liable to pay to the landlord such rent as may be mutually agreed upon between the parties, and in the absence of agreement, the rent determined in accordance with sub-s. (5). Other sub-sections of the aforesaid Section are not relevant and material for the purposes of this appeal." 7. Before me it has not been disputed that only 120 sq. Other sub-sections of the aforesaid Section are not relevant and material for the purposes of this appeal." 7. Before me it has not been disputed that only 120 sq. yards land was let out to the defendant-appellant for the purpose of putting up a Khoka. During the course of argument it has been suggested that the plaintiff had let out a larger area to the defendant and had increased the rent but the learned counsellor the appellant has not been able to satisfy me regarding his contention about larger area having been let out to the defendant. In view of the aforesaid facts it is to be seen whether S. 29-A of the Act can help the appellant in any manner. The learned counsel for the appellant has invited my attention to the ruling reported in 1981 All R C 654, Anwar Ahmad v. 4th Addl. District Judge, Saharanpur and has contended that Khoka comes within the meaning of "building", therefore, the provisions of U. P. Act No. 13 of 1972 were attracted and the trial court was right in dismissing the plaintiffs suit whereas the lower appellate court has acted illegally in recording contrary finding. It is noteworthy that the trial court has recorded the following finding in its judgment; "Prativadi Ko Yadyapi Khali Jagah Di Gayi Thi Lekin Woh Khokha Rakhne Ke Li Ye Di Gayi Thi. Jiska Ullekh Ukt Kirayenama Men Hai. Aist Isthiti Men Yah Mana Jana Hi Nyayochit Hoga Ki Jaise Khokha Hi Prativadi Ko Diya Gaya Ho. Is Isthiti Men Koi Antar Nahin Utpanna Ho Jata Hai Kl Khokha Kirayedar Ne Banaya Ho Ya Makan Malio Ne." I think that the approach of the trial court is totally incorrect. There would be much difference if a Khokha has been let out to the defendant or only land beneath the Khokna has been let out to him. The trial court has approached the problem from wrong angle, therefore, it has arrived at patently erroneous conclusion that the provisions of U. P. Act No. 13 of 1972 were attracted and it had no jurisdiction to try the suit. 8. The ruling mentioned above and relied upon by the learned counsel for the appellant is distinguishable in the facts and circumstances of the present case. 8. The ruling mentioned above and relied upon by the learned counsel for the appellant is distinguishable in the facts and circumstances of the present case. In the reported ruling the Khokha was let out to the tenant, therefore the learned single Judge took the view that the Khokha answered the term "building" contemplated by the Act. In the present case since only 120 sq. yards land was let out to the defendant for the purpose of putting a Khokha, the appellant cannot derive any benefit out of the ruling cited on his behalf. 9. The provisions of U. P. Act No. 13 of 1972 would not be attracted to the facts and circumstances of the present case. In (1985)2 All Rent Cas 89 : (1985 All L 680) Smt. Riazi Begum v. Adarsh Kumar Jauhari, a learned single Judge of this Court has indicated in para 9 as below ; For the first time, by U. P. Act 28 of 1976 the tenancies in respect of open pieces of land were also brought within the ambit of Rent Act restrictions but it was limited to those specific cases where the tenant had also raised constructions incurring expenses thereon with the permission of the landlord In 1980 All WC 626 : (1980 All L NOC 147) Mahabir Prasad Chhatri v. Madho Prasad Tandon, a learned single Judge of this Court has indicated a as below vide para. 10 : "..............Section 29A of the Act applies to a case where only a land has been let out and where the tenant with the landlords consent has erected any permanent structure and incurred expenses in execution thereof." In 1981 All Rent Cas 278 : (1981 UPLT NOC 47), Om Prakash v. 3rd Addl. District Judge, Meerut a learned single Judge of this court has observed in para 5 as below : " ............In the instant case a temporary wooden Khokha has been kept on the land in suit. The trial Court after examining the Commissioners report has recorded finding that the said wooden Khokha is of a nature which can be removed at any moment without any trouble. The trial Court after examining the Commissioners report has recorded finding that the said wooden Khokha is of a nature which can be removed at any moment without any trouble. The trial court, therefore, recorded a finding that it cannot be treated as a permanent structure as contemplated by S. 29-A of the Act The wooden Khokha which has been built by the petitioner is standing on the wooden legs and according to the Commissioners report it is removable and can be shifted to another place. These are two material facts which determine that the constructions which have been made by the petitioner are not a permanent structure and, therefore, the view which has been taken by the courts below is in accordance with law." In the present case the lower appellate court has recorded the following finding at page 9 of the judgment: - " The question whether the construct ions would amount to building within the meaning of the Act would depend upon the circumstances of each case. In the present case the agreement clearly provides that land was let out to the defendant and the defendant was permitted to place a wooden Khokha over that land for the purposes of carrying on his shop. The wooden Khokha is not of a nature which requires any trouble in its removal. It is not a thing which cannot be removed without any trouble. The wooden Khokha is not of a nature which requires any trouble in its removal. It is not a thing which cannot be removed without any trouble. Therefore, in my opinion, the wooden Khokha does not come within the definition of a permanent structure and hence neither the defendant-respondent in this case has been able to establish the existence of any permanent structure over the disputed land nor he has been able to establish that any permission was given by the landlord plaintiff to raise any permanent structure over the disputed land............The wooden Khokha, is, in my opinion not a permanent structure and, therefore, the existence of this wooden Khokha is not sufficient to attract the provisions of S. 29-A U. P. Act 13 of 1972, and consequently it can be safely said that the provisions of U. P. Act No. 13 of 1972 are not applicable to the disputed land and consequently the finding given by the learned munsif contrary to it is illegal and incorrect." In my opinion, the impugned judgment of the lower appellate court is quite in consonance with the rulings reported in 1981 All Rent Cas 278 : (1981 UPLT NOC 47) and (1985) All Rent Cas 89 : (1985 All U 680): 10. Since both the contentions raised on behalf of the appellant fail, think no substantial questions of law contemplated by the provisions of S. 100, Civil P.C. are involved in this appeal. The lower appellate court has correctly held that the disputed land is only 120 sq. yards over which the Khokha exists and that the provisions of S. 29-A, U. P. Ad No. 13 of 1972 (as amended by the Act of 1976) are not at all attracted to the facts and circumstances involved in the case. 11. In the result, the appeal fails and is accordingly dismissed. As Shri Budhwar has appeared on behalf of the plaintiff respondent he has been heard in support of the impugned judgment. Parties are directed to bear their own costs.