Kayasthe Pathshala Trust v. Harish Chandra Verma — 1989 DIGILAW 905 (ALL)

JUDGMENT S.C. Mathur, J. - This is a Defendants' appeal directed against the judgment and decree dated 22nd August, 1987 passed by Sri Jitendra Srivastava, Additional Judge, Small Causes Court, Lucknow exercising powers of Civil Judge decreeing the Respondent's suit No. 149 of 1985 with cost and restraining the appellants from interfering in respondent's peaceful possession of the property in suit and directing the appellants to demolish the structure specified in paragraph 14A of the plaint and to restore status quo ante. The dispute between the parties relates to a portion of the open land situate at No. 3, Bisheshwar Nath Road, Lucknow. The material question for determination is whether the said land is comprised in Respondent's tenancy or not, the respondent asserting in the affirmative and the appellants in the negative. 2. Admittedly the property situate at 3, Bisheshwar Nath Road Lucknow is owned by the defendant No. 1 Kayasthe Pathshala Trust. This property comprises three blocks of buildings and vast open land. One block of building is known as main Kothi and another block is known as the annexe. The third block comprises servant quarters measuring 30'6 X 20,7 and a motor garage measuring 10' 9 X 20'. Each block is separated from the other by an open patch of land. The public road is to the north of this property and is known as Bisheshwar Nath Road. There is only one gate for entry into the property from the public road. The main Kothi was in the tenancy of the plaintiff's father Sri S.B.L. Verma who has since died and is now in the tenancy of the plaintiff and his two brothers. On this there is no dispute between the parties. The parties are however at variance on the question whether any portion of the other two blocks or of the open land was also included in plaintiff's tenancy. On 21st May, 1985 defendant No. 1 through its President executed a lease deed in favour of Sri Nand Kumar Agarwal, defendant No. 2 in respect of a portion of the open land measuring 35' X96'6 comprised in the property situate at 3, Bisheshwar Nath Road. The demised land is delineated on the map annexed to the lease deed paper No. C93. The demised land is delineated on the map annexed to the lease deed paper No. C93. From the map it appears that the demised land is to the east of the main Kothi in the tenancy of the plaintiff and in between the main kothi and the demised land, open land has been left. To the north of the portico which is part of the Kothi, 16'6 wide passage has been carved out. Beyond the passage in the north foot path and drain, 5 feet in width, have been demarcated. Beyond the foot path in the north, is the shoppingcumresidential complex which admittedly belongs to defendant No. 1. The plaintiff's case is that the entire land shown as passage, foot path and drain in the north and the land measuring 35' X 96'9 to the east of the main Kothi, demised to defendant No. 2, is comprised in his tenancy and has not been released therefrom and, therefore, the plaintiff has no right to let out any portion of that land or to carve out any passage, foot path or drain therefrom. The plaintiff approached the trial court with the allegation that defendants 2 and 3 threatened to raise structure over the demised land which constituted unwarranted interference in the peaceful enjoyment of the land by plaintiff and hence defendants were liable to be restrained through a decree of permanent injunction from interfering with plaintiff's peaceful possession over the property in suit. The suit was filed on 29th May, 1985. Later the plaintiff amended the plaint so as to claim a decree for mandatory injunction to command the defendants to demolish the structure put up by the defendants after filing of the suit and to restore status quo ante. 3. At the plaintiff's instance Sri Madhukar Srivastava, Advocate, was appointed Commissioner to inspect the spot and submit report regarding the existing position of the property in suit. The learned Commissioner inspected the spot on 1.6. 1985 and submitted his report, C33. He also prepared site plan which is paper No. C33/4A. Later under directions of the Court he filed supplementary report dated 25th September, 1985, paper No. Ga72, alongwith two site plans, Ga 73/1 and ga 73/2 and the Commissioner's proceedings C74. The plan attached to the plaint, to the lease deed and the plans prepared by the learned Commissioner identify the property in suit. 4. Later under directions of the Court he filed supplementary report dated 25th September, 1985, paper No. Ga72, alongwith two site plans, Ga 73/1 and ga 73/2 and the Commissioner's proceedings C74. The plan attached to the plaint, to the lease deed and the plans prepared by the learned Commissioner identify the property in suit. 4. The plaintiffs case with regard to the property in question is that previously Sri Mohd, Zubair was the tenant thereof and later it was allotted to his father Sri S.B.L. Verma in April, 1953. He has described the property which came in possession of his father by virtue of the said allotment order in paragraphs 1 and 3 of the plaint. Originally his case was that on the death of his father on 3rd March, 1977, the property in question wap allotted in favour of his mother Smt. Dhanwathi Devi and on the death of his mother on 25th November, 1984, tenancy rights devolved on himself and his two brothers Sri A.C. Verma and Sri N.C. Verma. Later the plaintiff amended the plaint and gave up the case of fresh allotment in favour of his mother after the death of his father and asserted that on the death of his father the tenancy rights devolved on his mother. This is how he claimed tenancy rights about which there is no dispute, the dispute being confined to the extent of the property comprised in plaintiff's tenancy, 5. In the original plaint the plaintiff did not mention the rate of rent agreed upon between his father and defendant No. 1. He merely mentioned in paragraph 3 that the present rate of rent was Rs. 148.50. He later amended the plaint to state that originally the entire lind to the north of the main Kothi upto Bisheshwar Noth Road was comprised in the tenancy of his father but later, on the request of defendant No. 1, plaintiff's father surrendered a portion of the said northern land over which defendant No. 1 constructed shopping cumresidential complex and as a result of this surrender, the monthly rent was reduced. The extent to which the rent was reduced was, however, not disclosed, nor the monthly rent which became payable after reduction of rent. 6. The extent to which the rent was reduced was, however, not disclosed, nor the monthly rent which became payable after reduction of rent. 6. Defendant No. 1 in the suit was Kayasthe Pathshala Trust, the owner of the property in question, and defendant No. 2 was Sri N.K. Agarwal, the lessee from defendant No. 1. Sri Rajesh Kumar Agarwal who is the son of defendant No. 2 was impleaded on the ground that he alongwith defendant No. 2 threatened to interfere in plaintiff's possession of the land in suit. Defendant No. 2 and 3 filed their written statement jointly while a separate written statement was filed by defendant No. 1. On material points the defence of all the defendants is identical, all the defendants pleading that the open land surrounding the building was not part of the respondent's tenancy and that the same remained in possession and ownership of defendant No. 1 who had full right to grant lease in favour of defendant No. 2. It was also the case of the defendants that the plaintiff was out of possession and therefore suit for mere injunction was not maintainable. 7. On the basis of the pleadings of the parties the court below framed the following seven issues on 20th February, 1986: 1. Whether the plaintiff is the tenant of the property in suit as prescribed in para 1 and 3 of the plaint, if so its effect? 2. Whether the defendant No. 2 and 3 are illegally threatening to dispossess the plaintiff from the property in suit as alleged in. paras 11, 12 of the plaint? 3. Whether the plaintiff is in possession over the land in suit? 4. Whether the defendant No. 2 is the lessee in possession over the leased land in suit as alleged in para 21 of the W.S.? 5. Whether the defendant No. 2 and 3 are entitled to damages and special cost as alleged in para 23 of its W.S.? 6. Whether the suit of plaintiff is infructuous as alleged in para 17 of W. S. of defendant 2 and 3? 7. To what other relief ? After the above issues had been framed the plaint was amended and the parties exchanged additional written statement and additional replication and thereafter the following 3 further issues were framed on 22nd October, 1986: 8. 7. To what other relief ? After the above issues had been framed the plaint was amended and the parties exchanged additional written statement and additional replication and thereafter the following 3 further issues were framed on 22nd October, 1986: 8. Whether the defendant No. 3 raised constructions as alleged during the pendency of this suit lawfully ? if so, its effect ? 9. Whether the constructions raised have been undervalued and the court fee paid for demolition is insufficient ? 10. Whether the mandatory relief with regard to demolition is barred by section 41 of the Specific Relief Act ? On 22nd October 1986 itself learned counsel for defendants 2 and 3 at whose instance issue No. 9 had been framed did not press the same and accordingly the same day the trial court recorded the finding on that issue in the negative. Thus only 9 issues are survived on which the parties went to trial. 8. Both parties filed oral and documentary evidence in support of their respective pleas. The contest was mainly between the plaintiff and the defendants 2 and 3, defendant No. 1 supporting the latter. Now the documentary evidence filed by the parties may be noticed. 9. Along with plaint the plaintiff filed original rent receipt dated 27th May, 1985 for Rs. 137.50 issued by Laxman Prasad on behalf of defendant No. 1 in favour of plaintiff's mother Smt. Dhanwathi Devi. This receipt neither contains admission/denial of the defendant's counsel nor any exhibit mark. Through list No. C42 dated 3rd July, 1985 the plaintiff filed 7 papers. None of these papers bears admission/denial of the defendant's counsel and none has been exhibited. The last paper of this list is receipt for payment of fee to the Advocate Commissioner dated 1st June,1985 and the remaining papers are copies of report made by the plaintiff to the police authorities against the defendants. None of these documents is material for resolving the controversy involved in the case. Through list No. C111 dated 10th April, 1986 the plaintiff filed certified extract from the assessment list Nagar Mahapalika, Lucknow for the year 1976 in respect of the house in question. Column No. 4 of the list contains the owner's name as Managep, Kayasthe Pathshala and column No. 5 contains the name of occupants together with the rent payable by each. Column No. 4 of the list contains the owner's name as Managep, Kayasthe Pathshala and column No. 5 contains the name of occupants together with the rent payable by each. At the top is the name of the plaintiff's father Sri S. B. L. Verma with the figure of rent as Rs. 137.50. At serial nos. 2 and 3 are shown Smt. L. N. Tewari and Sri L. N. Srivastava each with the rent of Rs. 25/P. M. Genuineness of the document was admitted on behalf of the defendants. Still the document does not appear to bear any exhibit mark. Through list No. C140 dated 21st August, 1986 the plaintiff filed 15 documents. Papers 1 to 12 are photographs of different portions of the property in question and paper No. 13 is cash memo dated 27th June, 1986 of Photo Art Studio, Lucknow showing payment of Rs. 110.00 as cost of preparing the photographs. Paper No. 14 is another cash memo dated 27th June, 1986 for Rs. 10/ of Sahu Studio, Lucknow; this is also in respect of the photographs. The last paper is certified copy of application dated 27th September, 1985 filed on behalf of defendants 2 and 3 in F. A. F. O. No. 131 of 1985 (Dr. H. C. Verma Vs. Kayasthe Pathshala Trust and others) seeking permission to file supplementary affidavit. Certified copy of the supplementary affidavit together with the annexure B1 to the affidavit is allotment order dated 25th November, 1952 in favour of Sri Mohd. Zubair who was a tenant in the property in question prior to the plaintiff's father. The property allotted is described in the schedule as follows : Main Kothi, servant quarters and one room of the Annexe at 3, Bisheshwar Nath Road, Lucknow. Annexure B2 is allotment order dated 25th November, 1952 in favour of Bireshwar Ghosh. The allotted property is described in the schedule as follows : Annexe except one room on its ground floor 3, Bisheshwar Nath Road, Lucknow. Annexure B3 is allotment order dated 27th January, 1953 in favour of Sri Uma Shanker Srivastava. The allotted property is described in the Schedule as follows: Lower portion of house No. 3, Bisheshwar Nath Road, Lucknow (already in occupation of Sri Uma Shankar Srivastava). Annexure B3 is allotment order dated 27th January, 1953 in favour of Sri Uma Shanker Srivastava. The allotted property is described in the Schedule as follows: Lower portion of house No. 3, Bisheshwar Nath Road, Lucknow (already in occupation of Sri Uma Shankar Srivastava). This portion was comprised in the allotment order dated 25th November, 1952 made in favour of Sri Bireshwar Ghosh reference to which has been made in annexure B3 also. From the supplementary affidavit it appears that apart from annexures B1 to B3 to more papers had been filed as annexures B4 and B5 but their copies are not annexed to the copy of the supplementary affidavit filed in the present case. Annexure B4 is copy of letter dated 29th March, 1954 written by plaintiff's father to President of Defendant No. 1 and annexure B5 is copy of such letter dated 21st December, 1952 written by Sri Mohd. Zubair. Originals of all these 5 annexures have been filed by defendant No. 1 at the instance of plaintiff. The purpose of defendants 2 and 3 in filing the supplementary affidavit and the annexures was to show that an annexe also existed on the property in question and that the entire annexe was not let out along with the main Kothi but only one room thereof was let out. Out of the 15 papers filed with list C140 it is only the annexures to the last paper which can throw some light on the extent of the property comprised in plaintiff's tenancy. Other papers are not relevant for resolving this controversy. The papers filed along with this list also do not bear defendant's admission/denial or exhibit mark. 10. Defendant No. 1 has not filed any paper. 11. Defendants 2 and 3 have filed papers through 3 lists. The first list C16 is dated 26th May, 1985. Through this list 15 papers were filed. Paper No. 1 is photo copy of lease deed dated 21st May, 1985 executed by defendant No. 1 in favour of defendant No. 2 along with the site plan. Papers 2 to 14 are copies of complaints sent by defendant No. 2 against the plaintiff to officers of the District Administration or their acknowledgments, Last paper is original rent receipt dated 23rd May, 1985 for Rs. 225/ issued on behalf of Defendant No. 1 by Sri Laxman Prasad in favour of defendant No. 2. Papers 2 to 14 are copies of complaints sent by defendant No. 2 against the plaintiff to officers of the District Administration or their acknowledgments, Last paper is original rent receipt dated 23rd May, 1985 for Rs. 225/ issued on behalf of Defendant No. 1 by Sri Laxman Prasad in favour of defendant No. 2. All these documents were denied on behalf of plaintiff and they do not bear any exhibit mark. None of these documents is helpful in resolving the main dispute, viz. extent of the property comprised in plaintiff's tenancy. Eleven papers were filed through list C92 dated 20th February, 1986. Paper No. 1 is the original lease deed dated 21st May, 1985 of which photocopy was filed with the earlier list. The rest of the papers relate to Defendant No. 2's complaint against the plaintiff to authorities of the District Administration. Except paper No. 1 the rest of the papers were treated by the court below as public documents and were directed to be marked Ext. A1 to A10. However, these exhibit marks have not been endorsed on the documents. Through last list C123 dated 28th May, 1986 only the plan of the proposed building rejected on 12th January, 1960 by the Prescribed Authority constituted under U. P. Regulation of Building Operations Act was filed. The document does not bear either admission/denial of the counsel opposite or exhibit mark. 12. The plaintiff's oral evidence comprises the depositions of Dr. H.C. Verma plaintiff, Sri Harish Chandra Srivastava, Sri Mohd Zubair and Dr. K.P. Nigam, P.W. 1, 2, 3 and 4 respectively. Defendant No. 1 did not examine any witness. On behalf of defendants 2 and 3, defendant No. 2 was examined. 13. Sri Madhukar Srivastava, Advocate, was appointed Commissioner by the trial court to make spot inspection and submit report. His report is C33. He was required to submit supplementary report which he did on 25th September, 1985, Ga 72. 14. Before taking up the contentions of the learned counsel for the appellants, the findings recorded by the court below on the aforementioned surviving issues may be noticed. His report is C33. He was required to submit supplementary report which he did on 25th September, 1985, Ga 72. 14. Before taking up the contentions of the learned counsel for the appellants, the findings recorded by the court below on the aforementioned surviving issues may be noticed. Under issue No. 1 it has been held that the open land has always remained in the use of occupants of the Kothi and it has been in the possession of the plaintiff or his father from inception of the tenancy and has never been in possession of Kayasthe Pathshala Trust or anyone else. Consequently it has been held that the plaintiff is tenant of the land described in paragraphs 1 and 3 of the plaint. As a result of the findings recorded under issue No. 1 it has been held under issue No. 3 that plaintiff is in possession of the land in suit. Under issue No. 4 it has been held that defendants 2 and 3 are undisputedly Patta holders of the lands described in paragraph 2 of their written statement and they are in possession thereof but the Patta having been executed without obtaining release of the said land from the plaintiff's tenancy, the Patta and the possession are illegal. Under issue No. 2 it has been held that defendants 2 and 3 have illegally dispossessed the plaintiff from the land covered by t he Patta but there is no threat of plaintiff's dispossession from the Kothi and the remaining land attached thereto and comprised in his tenancy, Under issue No. 5 the claim of damages and special costs preferred by the defendants 2 and 3 has been rejected. Under issue No. 6 it has been held that the suit has not become infructuous. Under issue No. 8 it has been held that the disputed constructions were made by defendants 2 and 3 prior to filing of the suit as well as subsequent thereto but no construction was made during the subsistence of the Court's interim injunction after the same had been communicated to the defendants. Under issue No. 10 it has been held that the relief of mandatory injunction to demolish the structure is not barred by section 41 of the Specific Relief Act. Under issue No. 7 the plaintiff has been held entitled to the reliefs prayed for. Under issue No. 10 it has been held that the relief of mandatory injunction to demolish the structure is not barred by section 41 of the Specific Relief Act. Under issue No. 7 the plaintiff has been held entitled to the reliefs prayed for. With these findings the suit has been decreed with costs. Extent of tenement 15. The most important question in the case is the extent of the property comprised in plaintiff's tenancy. The question is covered by issue No. 1 which cast the burden of proof on the plaintiff. It has to be seen whether the plaintiff has discharged this burden. 16. In paragraph 1 of the plaint the plaintiff has described the property comprised in his tenancy as building situate at 3, B. N. Road, Lucknow consisting of many rooms, kitchen, latrine, bath room, along with two servant quarters at the south eastern back side and a motor garage and appurtenant land on the front side and the eastern and back side of the said building, bounded as under : North : Back side of the market, shops and flats above them on the main road. South : Boundary wall and beyond it property of the Trust. East : Boundary wall and beyond it property of Nanpara house having office of District Industry Officer. West : Land and house under tenancy of K.C. Srivastava and others on the ground floor and Mrs. N. Tiwari and others on the first floor. In paragraph 3 the plaintiff states that the house was originally let out to his father consisting of all the house and appurtenant land on the front side, eastern side and the back side of the building. 17. From the above pleadings it would appear that the plaintiff claims tenancy rights on the open land on three sides of the house only, namely the front, side, the back side and the eastern side. The frontage of the house is to the north and the back is to the south. Accordingly the claim of tenancy right on the open land is confined to the land on the eastern, northern, and southern sides. There is no claim of tenancy right in respect of the land on the western side. From the Commissioners' map it is apparent that there is open land on the western side also. 18. Tenancy is a matter of contract. There is no claim of tenancy right in respect of the land on the western side. From the Commissioners' map it is apparent that there is open land on the western side also. 18. Tenancy is a matter of contract. The extent of the property comprised in tenancy is also a matter of contract. It is in the back ground of this legal position that the plaintiff's evidence of tenancy in respect of the open land may be examined. 19. Admittedly no lease deed or rent note was executed between the parties. Plaintiff's father who originally became the tenant is not alive. The plaintiff has examined himself as P.W. 1. In his deposition he has not claimed that the contract of tenancy took place in his presence. Therefore, his evidence is not relevant for determining the extent of the property let out to his father. Further his deposition is not consistent with his pleading. As already noticed, according to the plaint, tenancy extended to the open land on three sides of the main Kothi only. In his examination in chief P.W. 1 says that the property which his father got from the previous tenant comprised land on all the four sides (CHARON TARAF KHULEE ZAMEEN THEE). From his deposition it appears that his claim of tenancy extending to the open land on all the four sides is based merely on user of the land. User of land is one thing and inclusion of land in tenancy is quite another. By mere user of land, contract of tenancy cannot be culled out. 20. On recall after close of his earlier deposition, after 7 months, P. W. 1 made fresh statements regarding the extent of tenancy. He stated that in 1953 the tenement extended in the north upto 3, Bisheshwar Nath Road and later, on the request of Dr. Pyarelal, President of Defendant No. 1, a portion of the land was surrendered in favour of the landlord who constructed shops and flats thereon and as a result of this surrender the monthly rent was reduced from Rs. 110/to Rs. 65/. This information is not based on P. W. 1's personal knowledge but is based on the information conveyed to him by his father. It is hearsay. The statement is however falsified by letter dated 29th March, 1954, C170, addressed by plaintiff's father to the President of Defendant No. 1. 110/to Rs. 65/. This information is not based on P. W. 1's personal knowledge but is based on the information conveyed to him by his father. It is hearsay. The statement is however falsified by letter dated 29th March, 1954, C170, addressed by plaintiff's father to the President of Defendant No. 1. In this letter he has stated that there was no agreement between him and defendant No. 1 regarding the rate of rent and that the rate of Rs. 65/per month had been fixed by the District Magistrate. The theory of surrender has been concocted by the plaintiff to explain construction of the shoppingcumresidential complex by defendant No. 1 on a portion of the land which was claimed by the plaintiff to have been comprised in his father's tenancy. The falsity of this statement goes a long way to discredit plaintiff's claim of tenancy over the open land. Defendant No. 1 could have constructed the said complex only if the land was not comprised in plaintiff's father's tenancy. Construction of complex after commencement of plaintiff's father's tenancy is not disputed by the defendants. This admitted position coupled with the theory of surrender being found false, leads to the conclusion that the open land was not comprised in plaintiff's father's tenancy. The plaintiff claims tenancy rights through his father. He does not claim fresh settlement of tenancy between him and defendant No. 1. Accordingly no portion of the open land to the north of the main Kothi can be said to be comprised in the tenancy of the plaintiff. 21. In his examinationinchief before recall P.W. 1 stated that on the northern open land there were thorny and flowery plants. In his examinationinchief on recall he states that on the said land there was a passage and thereafter garden and trees. In the site plan attached to the lease deed executed in favour of defendant No. 2 also the land to the north of the portico of the main building has been shown as passage. The description of the land in the said plan obtains support from the statement of P. W. 1 on recall. 22. In his cross examination by defendant No.1 after recall P.W. 1 stated that his father got the same property by virtue of allotment as was in the tenancy of the previous tenant Mohd. The description of the land in the said plan obtains support from the statement of P. W. 1 on recall. 22. In his cross examination by defendant No.1 after recall P.W. 1 stated that his father got the same property by virtue of allotment as was in the tenancy of the previous tenant Mohd. Zubair who used to pay monthly rent at the rate of Rs. 110/. He further states that his father paid rent from the very inception of the tenancy at the rate of Rs.65/ per month. This statement runs counter to the plaintiff's pleading contained in paragraph 3/III of the plaint wherein he has introduced the theory of reduction in rent as a result of surrender of a part of the open land in the north. It would thus appear that the plaintiff is not a truthful witness and implicit reliance cannot be placed on his statement. If his statement in respect of northern land cannot be believed he cannot be believed in respect of his claim of tenancy over the eastern and the southern land also. 23. The learned counsel for the plaintiff had strenuously pressed claim of tenancy in respect of the eastern land on the ground that it was through this open land that the plaintiff reached his garage and on account of the structure put up by defendants 2 and 3 there was obstruction in reaching the motor garage. In view of this argument the first question that arises for consideration is whether motor garage is included in the tenancy of the plaintiff. As already noticed motor garage is part of separate complex which comprises the servant quarters and the motor garage. In the allotment order made in favour of the plaintiff's father there is mention of the servant quarters but there is no mention of the motor garage. If one portion of the separate complex is mentioned in the allotment order and the other is not, the only inference that can be drawn is that the motor garage was never intended to be allotted to the plaintiff's father. Apart from the allotment order there is no other contract of tenancy between the plaintiff's father and defendant No. 1. Accordingly the plaintiff's claim of tenancy over the motor garage cannot be up held, plaintiff's possession over the garage is also not established. Apart from the allotment order there is no other contract of tenancy between the plaintiff's father and defendant No. 1. Accordingly the plaintiff's claim of tenancy over the motor garage cannot be up held, plaintiff's possession over the garage is also not established. At time of the visit of the Advocate Commissioner the plaintiff was unable to produce the key of the lock hanging on the gate of the motor garage. The plaintiff's plea was that the key of the motor garage was with his brother. The plaintiff's brother has not entered the witness box and apart from the plaintiff's solitary statement there is no evidence of the key being in possession of the plaintiff's brother. I have already observed hereinabove that the plaintiff is not a truthful witness and therefore I am unable to accept his claim of possession over the garage. Further the Commissioner's report shows that the roof of the garage was broken and there was no car parked inside the garage. Instead of car, only some junk was lying inside the garage. Accordingly the plaintiff's claim of tenancy right in respect of the eastern land cannot be upheld with reference to his claim of being a tenant of the motor garage. It may however be pointed out that between the eastern extremity of the main Kothi and the land let out by defendant No. 1 in favour of defendant No. 2, there is open space which is 14' wide in the north and 9' wide in the south. In my opinion this passage is sufficiently wide for a car to pass. Therefore, it cannot be said that by letting out a portion of the eastern land to defendant No. 2 there has been any encroachment upon the enjoyment of the main Kothi by the plaintiff. The Commissioner' s map indicates that there is open space also on the western side of the Kothi. A car parked in the garage can very conveniently be taken out on the main road through the open space on the southern and western sides. 24. The next witness of fact who may be dealt with is Mohd. Zubair who was admittedly the tenant of Kothi prior to its allotment in favour of the plaintiff's father. He is P. W. 3. 24. The next witness of fact who may be dealt with is Mohd. Zubair who was admittedly the tenant of Kothi prior to its allotment in favour of the plaintiff's father. He is P. W. 3. In his examination in chief he has stated that from 1950 to 1953 he was posted at Lucknow as Additional City Magistrate and from July 1952 to June 1953 he stayed at 3, Bisheshwar Nath Road, Lucknow as a tenant of defendant No. 1 by virtue of allotment order made in his favour. He has claimed that the entire open land on the northern, eastern and western sides was comprised in his tenancy. He has, however, not stated as to how that land was comprised in his tenancy. The allotment order made in his favour is on record. It is dated 25th November, 1952. The property allotted in his favour and mentioned in his allotment order has already been described hereinabove. That allotment order does not make any reference to the open land. The witness could be a tenant of the land either by virtue of allotment order or by virtue of agreement between himself and the landlord. The allotment order, as already mentioned, does not contain the open land. The witness does not speak of any contract with the landlord. Thus his claim of tenancy is apparently based on user of the open land by him. Even if his claim of user is accepted it will not amount to creation of tenancy in his favour in respect of the open land. He has himself stated that his claim of tenancy over the opera land is based on presumption. Accordingly the testimony of this witness does not prove the plaintiff's claim of tenancy right over the open land. 25. Sri Harish Chandra Srivastava, P.W. 2 has claimed himself to be tenant of another building in the same compound at 3, Bisheshwar Nath Road. He has stated that on all the four sides of the building in the tenancy of the plaintiff there is open land which is in the tenancy of the plaintiff. This statement is in excess of the plaintiff's claim made in the plaint as indicated hereinabove. As already pointed out the plaint case is that the plaintiff is tenant of the open land on three sides of the Kothi. This statement is in excess of the plaintiff's claim made in the plaint as indicated hereinabove. As already pointed out the plaint case is that the plaintiff is tenant of the open land on three sides of the Kothi. The witness claims tenancy rights in favour of the plaintiff in respect of open land on four sides of the building. The witness does not claim to have been present at the time of settlement of tenancy between the plaintiff's father and defendant no, 1. He has specifically stated in cross examination on behalf of defendant No. 2 that he was not present at the time of settlement of tenancy. His claim of tenancy in favour of the plaintiff appears to be based on user of the land. His testimony, however, does not establish even user of the land. The witness stated that on the eastern open land badminton was being played. However, in cross examination on behalf of defendant No. 2 he stated that no badminton was being played for the last seven years. In respect of the motor garage he stated that the plaintiff had a car at one time but he did not have any car at the time of recording of his statement. He further admitted that there was no car in the possession of the plaintiff for the last seven or eight years. Although on the basis of mere alleged user of the land by the plaintiff the witness vests the plaintiff with tenancy rights but he does not claim similar tenancy rights in his favour in respect of the land in front of the accommodation alleged to be in his tenancy. Regarding the land in front of his accommodation he merely says that he uses the same. As already pointed out, tenancy is a matter of contract and tenancy rights cannot be inferred from mere user of open land. 26. P.W. 4, K. P. Nigam has claimed to be tenant of a house situate about 500 steps away from 3, Bisheshwar Nath Road. According to him he had been visiting 3, Bisheshwar Nath Road for the last 3035 years. He has mentioned the occupants of the Kothi prior to its occupation by the plaintiff's father. The previous occupant named by him are Mutual Insurance Company and Sri Mohd. Zubair. According to him he had been visiting 3, Bisheshwar Nath Road for the last 3035 years. He has mentioned the occupants of the Kothi prior to its occupation by the plaintiff's father. The previous occupant named by him are Mutual Insurance Company and Sri Mohd. Zubair. He has stated that the land on the northern, southern and eastern sides of the Kothi had been in the use of the tenant of the Kothi. He claims to have been the tenant of the Kothi using the eastern land by sitting thereon. According to him there were two poles fixed on this land on account of which he inferred that badminton was played on the said land. The witness states about the construction of the shopping cum residential complex on the northern land. Like P.W. 1 he also states about reduction in monthly rent on account of surrender of a portion of the northern land. This theory propounded by P.W. 1 has already been held to be false and concocted. It P. W. 1 cannot be believed on that account P.W.4 also cannot be believed. This witness has gone a step further in making false statement regarding reduction in rent. He claims to be a witness to the talk at which the rent was agreed to be reduced. According to him the talk took place in the year 1953 in the Kothi in question and he had accompanied there the then president of Defendant No. 1. Dr. Pyare Lal Srivastava. The letter of the plaintiff's father gives a complete lie to the theory of reduction in rent as a result of surrender of a portion of the land. He has also introduced the presence of an employee of the trust namely, Munshi Hriday Narain. He has claimed himself to be a Trustee of defendant No. 1. He claims to have been taken to the residence of plaintiff's father by the President of the trust, Dr. Pyare Lal Srivastava, but this claim does not appear to be correct as the witness admits that for the last 26 25 years he has not attended any meeting of the Trust. There could be no occasion for the President of the Trust to take such a person to the tenant with whom he was going to negotiate surrender of a part of the tenement. There could be no occasion for the President of the Trust to take such a person to the tenant with whom he was going to negotiate surrender of a part of the tenement. This witness appears to be entirely a got up witness, Be that as it my, he does not claim to be present at the time of settlement of tenancy of either Mohd. Zubair or Sri Shyam Bihari Lal Verma, plaintiff's father. Therefore, he cannot be a competent witness to depose about the extent of property let out to plaintiff's father. The extent of property deposed to by him conflicts with the plaint allegation. Accordingly the deposition of this witness is also not helpful in identifying the property let out to the plaintiff's father. 27. The result of the above discussion is that the oral evidence led by the plaintiff is either unreliable or insufficient to hold that the open land on three or four sides of the main Kothi was also included in the tenancy of the plaintiff's father or the plaintiff. 28. Documentary evidence which could throw some light on the extent of tenement consisted of allotment orders issued in favour of Sri Mohd. Zubair and plaintiff's father. The schedule of property mentioned in the allotment order of Mohd. Zubair has been mentioned hereinabove. The allotment order in favour of plaintiff's father describes the allotted property as follows : Main Kothi, Servant Quarters and one room of the annexe at No. 3, Bisheshwar Nath Road, Lucknow. Vacated by Sri Mohd. Zubair. But for the last sentence, description of allotted property in both the allotment orders is identical. Copy of the allotment order in favour of plaintiff's father is annexed to defendant No.2's counter affidavit dated 2561985 filed in the court below. In neither allotment order there is mention of any land. Therefore, on the basis of this documentary evidence also, plaintiff's claim of tenancy over the open land cannot be upheld. 29. Apart from above allotment orders, there are two more allotment orders on records. One is dated 25111952 issued in favour of Sri Bireshwar Ghosh. In this allotment order, the allotted property is described as Annexe except one room on its ground floor, 3, Bisheshwar Nath Road, Lucknow In this allotment order also there is no reference to any portion of the open land. One is dated 25111952 issued in favour of Sri Bireshwar Ghosh. In this allotment order, the allotted property is described as Annexe except one room on its ground floor, 3, Bisheshwar Nath Road, Lucknow In this allotment order also there is no reference to any portion of the open land. It may be mentioned that this allotment order was made on the same date on which allotment order was issued in favour of Sri Mohd. Zubair. 30. The other allotment order is dated 2711953 in favour of Sri Uma Shanker Srivastava. It describes the allotted property as Lower portion of house No. 3, Bisheshwar Nath Road, Lucknow. Already in occupation of Sri Uma Shanker Srivastava. This order was issued in supersession of the allotment order dated 25111952 made in favour of Sri Bireshwar Ghosh. From this it appears that order relates to the same property which was previously allotted to Ghosh. This allotment order also does not make reference to any open land. 31. Plaintiff's plea of tenancy of the open land is not substantiated even by the documentary evidence on record. 32. Now the legal plea raised by the plaintiff's learned counsel may be considered. According to him in view of the definition of the term accommodation contained in section 2(a) of the U. P. Control of Rent and Eviction Act, 1947 (U. P. Act No. III of 1947) the open land will be deemed to be included in the tenancy of the building as appurtenant land. The definition runs as under: accommodation means residential and nonresidential accommodation in any building or part of a building and includes : (i) gardens, grounds and outhouses, if any, appurtenant to such building or part of a building ; (ii) any furniture supplied by the landlord for use in such building or part of a building ; (iii) any fittings affixed to such building or part of a Building for the more beneficial enjoyment thereof; In clause (i) of the above definition three significant expressions have been used, viz. gardens grounds and appurtenant to such building or part of building. In view of the last expression not all gardens and grounds adjoining a building go along with the accommodation. Only those gardens and grounds go with it as are appurtenant to the building. The question now is what gardens and grounds are to be treated as appurtenant to the building. In view of the last expression not all gardens and grounds adjoining a building go along with the accommodation. Only those gardens and grounds go with it as are appurtenant to the building. The question now is what gardens and grounds are to be treated as appurtenant to the building. The word appurtenant has been used in section 9 of the U. P. Zamindari Abolition and Land Reforms Act, 1950 (U.P. Act 1 of 1951) also and has been subject matter of interpretation by this Court as well as by their Lordships of the Supreme Court. In State of U.P. Vs. Srimati Ram Sri and another AIR 1976 Allahabad 121 a Division Bench of this Court has observed as follows in paragraph 38 of the report : Secondly, the purpose of the land being appurtenant can only be one for the useful or beneficial enjoyment of the building. The word 'appurtenant' has not been defined in the Act. The dictionary meaning of the word 'appurtenant' is usefully occupied. In Tomlin's Law Dictionary, it has been said that the word can import nothing more than the words strictly appertaining to the subjectmatter of the devise or grant and which would in truth pass without being specially mentioned. Another meaning of this word is pertaining or belonging. In Webster's III New International Dictionary, the meaning of this word given is annexed or belonging legally to some more important thing, incident to and passing in possession. The word appertaining means something which is usually occupied with the main building. All these meanings, therefore, show that the land appurtenant should be something which is needed for the enjoyment of the main building and is enjoyed with it, being part of the same. From the above observations it follows that appurtenant is not equivalent to adjoining, A land may adjoin a building but thereby alone it will not be appurtenant thereto. For being appurtenant, an element of need should exist. 35. In Maharaj Singh Vs. State of U. P. 1977 Revenue Decisions 7 their Lordships of the Supreme Court have observed at page 16 thus ............the large open spaces cannot be regarded as appurtenant to the terraces, stands and structures. What is integral is not necessarily appurtenant. A position of subordination, something incidental or ancillary or depending is implied in appurtenance. In Maharaj Singh Vs. State of U. P. 1977 Revenue Decisions 7 their Lordships of the Supreme Court have observed at page 16 thus ............the large open spaces cannot be regarded as appurtenant to the terraces, stands and structures. What is integral is not necessarily appurtenant. A position of subordination, something incidental or ancillary or depending is implied in appurtenance. Can we say that the large spaces are subsidiary or ancillary to or inevitably implied in the enjoyment of the buildings qua buildings..........A hundred acres may spread out in front of a club house for various games like golf. But all these abundant acres are unnecessary for nor incidental to the enjoyment of the house in any reasonable manner. It is confusion to miss the distinction, fine but real. After referring to the meaning of 'appurtenance' given in Butteresrths' Words and Phrases Judicially Defined, 2nd Edition their Lordships observed at page 17 as follows : In short, the touchstone of 'appurtenance' is dependence of the building on what appurtains to it for its use as a building. With the above observations the judgment of the High Court which had treated only 5 yards of land surrounding a structure as appurtenant thereto under section 9 was affirmed. 36. In view of the above, as a matter of law, only that land can be treated as appurtenant and, therefore, comprised in plaintiff's tenancy of the main Kothi as is needed for the beneficial enjoyment thereof. From the Commissioner's map, C33/4, it appears that on the northern side the main Kothi ends with a portico. On either side of the portico there is open land measuring 26' 6 X 19' 6. All this open land is available to the plaintiff for purpose of sitting etc. On the eastern side, after excluding the land demised to defendant No. 2, there is open land still available to the plaintiff through out the eastern boundary of the Kothi which is 14 feet wide in the north and narrows down to 9 feet in the south. There are doors of the Kothi opening on this land. Therefore, this land is needed by the plaintiff for the beneficial enjoyment of the Kothi. There are doors of the Kothi opening on this land. Therefore, this land is needed by the plaintiff for the beneficial enjoyment of the Kothi. In fact this land has been conceded to the plaintiff by defendants 2 and 3 who have stated in paragraph 22 of their written statement that on the east of the main Kothi there exists an open land for the beneficial enjoyment of the main Kothi. On the southern side also a door opens on the open land, Therefore, some land will have to be treated as appurtenant to Kothi on the south also. To the south of the land demised to defendant No. 2 are the servant quarters which are comprised in the tenancy of the plaintiff. The entire land to the south of the main Kothi extending upto the southern extremity of the servant quarters will be required for beneficial enjoyment of the Kothi and the servant quarters. All this land will, therefore, have to be treated as appurtenant to the main Kothi. From the Commissioner's map, Ga73/1, the length of the servant quarters northsouth appears to be 30' 6. In between the land demised to defendant No. 2 and the northern extremity of the servant quarters there is open land. Thus on the south the plaintiff will be having more than 30 feet of open land for the beneficial enjoyment of the Kothi and the servant quarters. The Commissioner's map does not show any door opening on the land to the west of the Kothi. Therefore, there is no question of that land or any portion thereof being needed by the plaintiff for the beneficial enjoyment of the Kothi. In fact, as already noticed, the plaintiff himself has not claimed any land to the west of the Kothi as comprised in his tenancy. Accordingly the land on north, south and east mentioned herein and no more, can be said to be comprised in plaintiff's tenancy. There does not appear to be any threat from the defendants to the enjoyment of this land by the plaintiff. Accordingly the plaintiff's suit will have to be dismissed. 37. Accordingly the land on north, south and east mentioned herein and no more, can be said to be comprised in plaintiff's tenancy. There does not appear to be any threat from the defendants to the enjoyment of this land by the plaintiff. Accordingly the plaintiff's suit will have to be dismissed. 37. The net result is that the plaintiff's claim of tenancy over the entire open land on the northern, southern and eastern sides of the main Kothi cannot be upheld either on the basis of contract or on the basis of the documentary evidence on record but it has to he upheld to the extent indicated hereinabove on the, basis of the law contained in the U.P. (Temporary) Control of Rent & Eviction Act, 1947. 38. Before closing on the subject it may be clarified that the need to determine appurtenant land as comprised in the tenancy under the provisions of U. P. Act No. Ill of 1947 or under the successor Act, U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 will arise only when the open land has not been established to be normally going with the building. I must also clarify that I am not holding that in tenancies of Urban buildings also the extent of the open land comprised in the tenancy of a building would be 5 yards only around that building. Where there is a single building let out to a single tenant with spacious open space, much in excess of 5 yards, the entire open space, in the absence of contract to the contrary, would be comprised in the tenancy of the building. The intention of the parties may in a given case be gathered from their conduct. In the present case plaintiff's silence at the time of construction of the shoppingcumresidential complex on the northern land by defendant No. 1, is a conduct of the parties which negatives plaintiff's claim that all the open space adjoining the Kothi was comprised in his tenancy. Problems of the nature raised in this case arise when in a single compound there are several buildings let out to different persons or different portions of a building are let out to several tenants. 39. It has been held by a full Bench of this Court in Abdul Rashid and others Vs. Problems of the nature raised in this case arise when in a single compound there are several buildings let out to different persons or different portions of a building are let out to several tenants. 39. It has been held by a full Bench of this Court in Abdul Rashid and others Vs. B. Braham Saran, AIR 1938 Allahabad 293 that a lessee cannot acquire easementary rights over the other land of his lessor. Accordingly by mere user of land adjoining the Kothi, tenancy rights cannot be held in favour of the plaintiff over any portion of that land. Plaintiff's evidence of user, therefore, apart from being unreliable, is irrelevant also. 40. Learned counsel for the plaintiffrespondent lays great stress on the fact that noone entered the witness box on behalf of the owner of the building, namely, defendant No. 1. According to him the plaintiff's evidence thus remains unrequited. The occasion to rebut would arise when there is evidence of the plaintiff establishing his claim, If the plaintiff had named any representative of the owner with whom the contract of tenancy took place and the extent of tenement was settled, it would have been necessary for defendant No. 1 to examine that person in order to rebut the plaintiff's evidence. As it is, the plaintiff does not name any such person. The allegation of talk between plaintiff's father and Dr. Pyare Lal Srivastava in the alleged presence of P. W. 4 and Munshi Hriday Narain of the Trust has been found to be falsified by the plaintiff's father's own letter. Thus even for rebutting the allegation of talk of surrender of a portion of the land and consequent reduction in rent it did not become necessary for the Trust to examine either Dr. Pyare Lal Srivastava or Munshi Hriday Narain. I am, therefore, of the opinion that the failure of defendant No. 1 to lead oral evidence does not improve plaintiff's position. 41. It is also the submission of the learned counsel for the plaintiffrespondent that the written statements of defendants do not contain specific denial of plaintiff's claim of tenancy over the land and, therefore, the plaintiff's claim is to be deemed to be accepted and accordingly the plaintiff was not required to lead any oral evidence on the extent of the property comprised in his tenancy. Obviously the learned counsel relies upon Order VIII Rule 5(1), Code of Civil Procedure, 1908. The submission does not bear factual scrutiny. The plaintiff has given the extent of the property comprised in his tenancy in paragraphs 1 and 3 of the plaint, relevant portions of which have been extracted hereinabove. In paragraph1 of the written statement defendant No. 1 has stated that the description of the tenement given in paragraph 1 of the plaint, including the boundaries, is wrong. The same averment has been repeated in paragraph 3 of the written statement with the addition that the extent of the tenement will be clear from the allotment order. Thus the plea is that the tenement is not as described in paragraphs 1 and 3 of the plaint but is as described in the allotment order. This, in my opinion, is sufficient denial of the plaintiff's allegation or claim. The mere fact that counter boundaries have not been given in the written statement is not sufficient for holding that there is no specific denial of the plaint allegation. 42. The learned counsel for the plaintiff, however, submits that the denial contained in paragraphs 1 and 3 of the written statement of defendant No. 1 is of no consequence as the written statement has been verified by a person who could have no knowledge of the facts pertaining to the extent of the property let out. It is pointed out that the written statement has been verified from knowledge by Sri Chandra Mool Srivastava, General Agent of the Trust. The submission of the learned counsel is that Sri Srivastava was not in employment of the Trust at the time the tenancy in question was created between the Trust and plaintiff's father and, therefore, he is incompetent to verify from knowledge. There is no evidence on record that Sri Srivastava was not in employment of the Trust at the time the tenancy in question was created and, therefore, the argument is untenable. 43. So far as defendants 2 and 3 are concerned, they have made a more detailed denial of the plaintiff's claim. In paragraph 1 of the written statement they have given counter boundaries of the property comprised in plaintiff's tenancy. The charge of evasive denial cannot, therefore, be levelled against these defendants. 43. So far as defendants 2 and 3 are concerned, they have made a more detailed denial of the plaintiff's claim. In paragraph 1 of the written statement they have given counter boundaries of the property comprised in plaintiff's tenancy. The charge of evasive denial cannot, therefore, be levelled against these defendants. It may be mentioned that the plaintiff was required to prove his case not only against defendant No. 1 but also defendants 2 and 3. 44. Legally also the plea is not tenable. The Proviso to Order VIII Rule 5 lays down that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission. When despite the so called admission, the court below framed issue No. 1 placing burden of proof upon the plaintiff, it obviously required the plaintiff to prove the facts covered by the said issue. The action of the trial court is fully covered by the proviso of Order VIII Rule 5. Accordingly at this stage the plaintiff cannot invoke clause (i) of Order VIII Rule 5. It may be mentioned that the plaintiffrespondent did not invoke Order VIII Rule 5(1) before the trial court. He cannot, therefore, invoke it for the first time in the present appeal, see (1981) 1 Supreme Court Cases 564, Shipping Corporation of India Ltd. and another Vs. Nissar Export Corporation, paragraph 9. 45. 1970 (3) Supreme Court Cases 845, Sheikh Abdul Sattar Vs. Union of India was cited by the learned counsel for the defendants in support of the proposition that the denial contained in additional pleas is also Sufficient compliance of Order VIII Rule 3 CPC which requires the denial of the plaint case to be specific and not merely general. It is not necessary to pursue the matter further as I am of the opinion that parawise denial of paragraphs 1 and 3 of the plaint is specific and there is no generality about it. Defendants' written statements, therefore, do not contravene Order VIII Rule 3 CPC. 46. It is next submitted that in paragraph 22 of their written statement defendants 2 and 3 have admitted that to the east of the Kothi there is open land which is comprised in plaintiff's tenancy and therefore, it cannot be said that no open land is comprised in plaintiff's tenancy. 46. It is next submitted that in paragraph 22 of their written statement defendants 2 and 3 have admitted that to the east of the Kothi there is open land which is comprised in plaintiff's tenancy and therefore, it cannot be said that no open land is comprised in plaintiff's tenancy. In view of this admission, the learned counsel submits, the only dispute between the parties is regarding the extent of the eastern land comprised in plaintiff's tenancy. After giving topography of the place, defendants 2 and 3 state in paragraph 22 of the written statement thus similarly on the east, there exists an open land for the beneficial enjoyment of the main Kothi and only thereafter lies a vast piece of open land leased out to the answering defendant No. 2. In my opinion this is not an admission of plaintiff's tenancy right over the entire eastern land. Admission relates to the open land between the Kothi in the tenancy of the plaintiff and the land let out to defendant No. 2 which, as noticed earlier, is 14 feet wide in the north and 9 feet wide in the south. The admission has been dealt with hereinabove and no further comments are required thereon. 47. AIR 1974 Allahabad 376 D. N. Gupta Vs. Smt. Sarla Khandelwal and others (FB) has been relied upon by the learned counsel for the plaintiff in support of claim of tenancy over the garage even though the same is not mentioned in the allotment order. This case has no application to the facts of the present case. The question before the Full Bench of this Court was whether a garage which was not appurtenant to any accommodation, was an accommodation within the 'meaning of Section 2(a) of 1947 Act so as to be covered by the Act or was it exempt from the Act. The Full Bench held that it would be an accommodation and covered by the Act even though it is not appurtenant to any accommodation or building. The question for consideration before me in the present case is whether a garage which is part of the complex which contains servant quarters also would be deemed to be included in the tenancy of the main building even though the allotment order in pursuance of which tenancy was created specifically mentions the servant quarters but does not mention the garage. 48. 48. A few observations may be made on the finding recorded by the court below on the question under consideration. The court below has upheld the plaintiff's claim on the basis of section 3(i) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, for short 1972 Act and on the acceptance of the plaintiff's evidence that the entire open land on three sides of the main Kothi came in the possession of the plaintiff's father and later a portion thereof to the north was surrendered in favour of the owner in pursuance of contract whereby the monthly rent was reduced to Rs. 65/ from Rs. 110/. Reference to 1972 Act is misconceived as the tenancy admittedly commenced much prior to the commencement of that Act. In 1953 when the tenancy commenced, U.P. (Temporary Control of Rent and Eviction Act, 1947, was in force. Section 2(a) of this Act which defines the term accommodation has been referred to hereinabove. 1972 Act uses the term building and defines it in section 3(1) as follows: building, means a residential or nonresidential roofed structure and includes (i) any land (including any garden), garages and outhouse appurtenant to such building ; (ii) ............................................................................... (iii) .............................................................................. The above definition is not identical to the definition of accommodation in 1947 Act but is substantially similar so far as the open land is concerned. Therefore, reference to 1972 Act by the court below does not materially affect the position. The court below was of the opinion that the open land and the garage will be deemed to be part of the building in view of the above definition. For the reasons already recorded, I am of the opinion that on the facts of the present case the garage and the open space cannot be said to be appurtenant to the accommodation allotted to the plaintiff's father. 49. It appears that the court below applied section 3(i) of 1972 Act after being satisfied with the plaintiff's claim that the garage and the open space came in the possession of plaintiff's father and were in his use and after his death, in plaintiff's use. The plaintiff's oral evidence of possession and user has been accepted because in the opinion of the court below the same finds corroboration from the factum of reduction in monthly rent from Rs/110/ to Rs. 65/. The plaintiff's oral evidence of possession and user has been accepted because in the opinion of the court below the same finds corroboration from the factum of reduction in monthly rent from Rs/110/ to Rs. 65/. The plaintiff's oral evidence of reduction of rent has been accepted because in the opinion of the court below the same finds corroboration from plaintiff's father's letter dated 29th March, 1954 addressed to the President of the Trust, C170. In my opinion, this letter instead of corroborating the plaintiff's plea demolishes it. If the plaintiff's plea is correct, rent of Rs. 65/ per month came to be fixed as a result of agreement. Plaintiff's father, in paragraph1 of the letter, says there has never been any agreement between you and me regarding the rent. Earlier he states in the same letter please find herewith a cheque No.........dated 29th March, 1954, for Rs. 585/only in lieu of the rent of 3, Bisheshwar Nath Road for the period from 1st June, 1953 to 28th February, 1954, at the rate of Rs. 65/ per month as fixed by the District Magistrate in his letter No.........dated 21st December, 1953. If the rate of Rs. 65/per month was fixed by mutual agreement there was no occasion to refer to the order of the District Magistrate. In the face of these contents of the letter, I am unable to appreciate how the letter corroborates the plaintiff's plea of surrender of a portion of the tenement consequent to which, according to the plaintiff, rate of rent was reduced to Rs. 65/per month from Rs. 110/per month. The wrong interpretation of this letter by the court below vitiates its finding of possession and user of the open land by the plaintiff and his father. 50. Once the plaintiff's basic claim of tenancy of open land is found to be false, it is not necessary to consider the other pleas canvassed by the learned counsel for the parties. Reference may be made only to the pleas raised by the learned counsel for the defendantappellants that the plaintiff's suit for injunction was not maintainable as from the evidence on record it was apparent that at the time of the institution of the suit the plaintiff was out of possession. It is pressed that the plaintiff's remedy lay in filing suit for possession. It is pressed that the plaintiff's remedy lay in filing suit for possession. In this respect it is also pointed out that the court below had recorded contradictory findings on the question of possession, observing at one place that defendants 2 and 3 were in possession of the land in dispute, and at another, that the plaintiff was in possession. If properly analysed the findings will not be found to be contradictory. The plaintiff was claiming tenancy rights over the entire open space to the north, south and east of the main Kothi. The finding of possession in favour of defendants 2 and 3 has been recorded in respect of a portion of the land, namely, the land covered by the lease deed executed by defendant No. 1 in favour of defendant No. 2. Neither defendants 2 and 3 claimed to be in possession of the remaining land nor finding of possession has been recorded by the court below in their favour in respect of the said remaining land. 51. So far as the claim of proper relief is concerned, that need not detain me long. Once the relevant facts have been placed before the Court, it is for the court to grant appropriate relief. Once the court comes to the conclusion that decree for possession, instead of decree for demolition, is required to be passed, the court can proceed to pass that decree even though that decree may not have been claimed. In the present case the question does not arise as the suit has to be dismissed as observed hereinabove. 52. AIR 1976 Allahabad 399 Brij Kishore vs. Mushtari Khatoon was cited by the plaintiff's learned counsel for submitting that the Court must take the pleadings as they stand after amendment and leave out of consideration the unamended one. My judgment is not based on plaintiff's unamended pleadings. Therefore, this authority has no relevance to the present case. 53. In view of the above the appeal is allowed, the judgment and decree of the court below is set aside, and the plaintiffrespondent's suit is dismissed. The parties shall bear their own costs in this Court as Well as in the Court below.