Judgment ( 1. ) THIS is plaintiffs appeal against the judgment and decree dated 23-7-2003 passed in C. S. No. 50-A/2000 decreeing the suit filed by him under Section 12 (1) (N) of M. P. Accommodation Control Act, 1961 (hereinafter called the rent Act) with a condition that he would pay the cost of structure a talkies determined by a Commissioner, before possession. The plaintiff is aggrieved only about this condition. The defendants have also filed appeal challenging the decree of ejectment in F. A No. 522/2003. Both the appeal will be decided by this common judgment because both have arisen against the same judgment. ( 2. ) BRIEF facts of the case are that on 07-06-1923 a land named as chhatri compound was leased out to Narhari Ashley and Manohar Kapadey by a registered lease deed for running a Cinema Theatre at a monthly rent of rs. 60. It was also agreed between the parties that at the time of eviction the vacant possession of the land will be delivered after removing the super structure. Subsequently Narhari and Manohar become insolvent and the property went under the control of Courts of Wards namely Manohar Bhandarkar, surajmal and Mr. B. P. Gupta advocate. The property went under the plaintiff on 11-12-1952 from the Courts of Wards. In the meantime Shri Krishna Cinema was leased out to M/s. Supreme General in 1943 and in 1955 M/s. Govindram sexsaria Charity Trust it was sub let to M/s. Pradeep Pictures in 1955. In the year of 1982 Shree Krishna Cinema came under the possession of defendants no. 1 and No. 2 and after death of Narhari defendant No. 1 his heirs relinquished their rights in favour of Vishnu Kapadey the defendant No. 2. ( 3. ) ON 21-05-1968 plaintiff instituted a suit for eviction under Section 12 (1) F of the rent Act and on 16-12-1997 the plaint was amended and a ground of 12 (l)n of the Act has been added by the plaintiff. ( 4. ) PLAINTIFF pleaded that suit land an open land was leased out to the defendant No. 1 (died) and father of defendant No. 2 along with other persons. After coming into force of the Rent Act the defendants their assignees, receiver unlawfully sub let it the suit land is open land and plaintiff required the same for running a Cinema theatre over it. ( 5. After coming into force of the Rent Act the defendants their assignees, receiver unlawfully sub let it the suit land is open land and plaintiff required the same for running a Cinema theatre over it. ( 5. ) THE one of the defendant challenged the order of grant of permission of amendment in the plaint before the High Court in C. R. No. 242/1979 that has been dismissed vide order dated 02-07-1979. ( 6. ) THE defendants denied the pleadings of the plaintiff and pleaded that he did not require the premises and wanted to enhance the rent, they made substantial investment in building the Cinema talkies Mr. Adsule specifically pleaded in para 8-A of written statement amended on 21-07-1998 that construction of Cinema does not come within the preview of section 12 (l) (n ). ( 7. ) THE plaintiff in Para 9 of his deposition clearly deposed that he wants to construct a Cinema house, a complex including offices and flats, shops. The Trial Court decreed the suit by holding that initially an open land was leased out to the defendants hence as per section 12 (1) (n) of the rent Act plaintiff entitled to a decree for eviction because he wanted to construct a Cinema House over the land and imposed a condition on the ground of equity that a receiver would assess the cost of talkies (constructed after the lease by the defendants and sub lessee) and plaintiff would pay the said cost to the defendant before taking vacant possession of the land. ( 8. ) LEARNED Counsel for the defendants (L. R. s-appellants) in appeal no. 522/2003 and defendants in F. A. 539/2003 submitted that judgment impugned is against the law because no open land was leased out at the time of lease deed hence provisions of section 12 (1) (n) of the rent Act are not attracted. ( 9. ) THE learned senior Counsel for the respondent in appeal No. 522/2003 and appellant in appeal No. 539/2003 submitted that it is clear from the lease deed Ex. D. /l dated 07-06-1923 and pleadings of plaintiff and defendants that an open land was leased out hence it is covered under Section 12 (1) (n) of the rent Act. ( 9. ) THE learned senior Counsel for the respondent in appeal No. 522/2003 and appellant in appeal No. 539/2003 submitted that it is clear from the lease deed Ex. D. /l dated 07-06-1923 and pleadings of plaintiff and defendants that an open land was leased out hence it is covered under Section 12 (1) (n) of the rent Act. He further submitted that the Trial Court committed a error of law by imposing condition of payment of cost of the structure build subsequently by the defendants over the land, by the plaintiff. It is against the provisions of lease deed and also against the provisions of Section 108 of TP. Act. He relied on judgments reported in 1972 JLJ 897 , 1992 JLJ 53 , 1981 m. P. W. N. Note 89,1984 M. P. W. N. 1984, A. I. R. 1963 M. 369. ( 10. ) WITH regard to contention of the learned Counsel of the defendants that open land was not leased out is not acceptable. The plaintiff in his plaint specifically pleaded that an open portion of the land was leased out originally. It is further clear from the original lease deed Ex. D. /l dated 07-06-1923 that an open land of Chhatri Compound of Juna Topkhana was leased out area was also mentioned for the purpose of Cinema theatre. The defendant manohar D. W. /l in Para 4 of his Cross examination admitted that an open land was taken on rent and subsequently a theatre was constructed over it. No other witness has been examined, hence, in my opinion the Trial Court did not commit any irregularity or illegality in recording finding of fact that an open land was leased out and on the basis of evidence of the plaintiff he is entitled a decree of eviction. ( 11. ) THIS Court in Prabhu Dayal Vs. Savitribai and another, 1972 JLJ page 897 held as under with regard to burden of proof in a case of 12 (1) (N) of the rent Act:-It is enough to satisfy the Court that the landlord wanted to construct over the land. This, of course, does not mean that the defendant cannot show that the landlord had no real desire and only wanted to get the land vacated for some other purpose on that pretext. The burden of proving this fact would be upon the defendant-tenant. (Para 6 ). This, of course, does not mean that the defendant cannot show that the landlord had no real desire and only wanted to get the land vacated for some other purpose on that pretext. The burden of proving this fact would be upon the defendant-tenant. (Para 6 ). It cannot be laid down as a matter of law that the existence of means with the plaintiff is an essential element which the plaintiff must prove in every case. It all depends on an overall picture of the case whether the Court accepts the plaintiffs case that he wants to build over the land or the defendants case that the expression of desire to build is a fraud on the law. It is a finding of fact based on evidence in each case. (Para 9 ). ( 12. ) THE learned Single Judge further held as under with regard to open land in Motilal Vs. Yusuf Ali and others, reported in 1972 M. P. L. J. Page 187: as laid down by Their Lordships of the Supreme Court in krishnapasuba Rao Kundapur Vs. Dattatraya, where the tenant at his own cost builds a shed of corrugated iron sheets on portion of the land leased, the subject-matter of the lease is not altered. The structures, therefore, belong to the defendant and was not the subject-matter of the letting. The land only was subject matter of the lease. No doubt, in Krishnapasuba Raos case, the agreement of lease was in writing which reserved a right to the tenant to remove the structure raised by him. Nevertheless, the principle remains the same and the decision of their Lordships in that case would equally apply to this case. The question as regards the subject-matter of lease was never in dispute. The defendant came with a definite case that a portion of the land was leased. Now, what is the subject- matter of the letting, is a question of fact. In the absence of a plea, the evidence led by the defendant showing that the lease was in respect of the land along with the huts was inadmissible (See, Siddik Mohamed shah Vs. Mt. Saran and others ). Besides, the parties had proceeded to trial on a definite understanding that the lease was of land and the appellant cannot be permitted to make out a new case which was not pleaded by him (See. Raruha Singh Vs. Mt. Saran and others ). Besides, the parties had proceeded to trial on a definite understanding that the lease was of land and the appellant cannot be permitted to make out a new case which was not pleaded by him (See. Raruha Singh Vs. Achat singh and others ). ( 13. ) THIS Court further in Jagdish Pd. Vs. Guru Bux Singh, reported in 1992 JLJ page 53 held as under :-Clause (n) of section 12 (1) of the Act reads as under :-Sec. 12. Restriction on eviction of tenants.- (1) Notwithstanding anything to the contrary contained in any other law or contract, no suit shall be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds only namely:- (n) In the case of accommodation which is open land, that the landlord required it for constructing a house on it; a bare reading of the clause would show that bonafide requirement is not an ingredient of the clause as is the case with other clauses of the section like clauses (e) or (f ). This view would find support from Prabhudayal Vs. Smt. Savitri Devi and another (supra), which held :- "in order to interpret the force of the word requires it is not merely necessary to look to the normal meaning of the word in english language other provisions which depend upon the need of the landlord. For instance, clause (e) requires that the accommodation let for residential purposes is required bonafide by the landlord, in clause (f) the provision is that the accommodation let for non-residential purposes is required bonafide by the landlord and in clause (h) again the provision is that the accommodation is required bonafide by the landlord for the purpose of building. But in clause (n), which is relevant to this case, the legislature merely provides that the landlord requires it. But in clause (n), which is relevant to this case, the legislature merely provides that the landlord requires it. It is further important to note that sub-section (5) of Section 12 makes it quite clear that the landlord will not be entitled to eject under clause (e) before the expiry of two months from the date of the order; for ejectment under clause (f) further conditions are laid down by sub-section (6); and for ejectment under clause (h)conditions are again provided under sub-section (7); but with regard to clause (n) there is no further provision restricting the right of the landlord to get possession. From this context it appears that the Legislature used the word requires in the simple sense of wishes or wants. The reason appears to be to encourage new constructions for increasing residential accommodation. Restriction to the normal right of the owner to eject a tenant should not be read into the word except on clear expression of legislative intent. " "the Clause (n) came up for consideration before another learned single Judge of this Court in Saffar Sandaow Vs. Laxman (second appeal No. 261 of 1966, decided on the 7th December 1958 ). While dealing with the arguments regarding scope of clause (n)the learned Judge compared it with the other parts of section 12 and approved of the earlier decision in the following passage:-"in the decision reported in S. Bootasingh Vs. Jamnaprasad (1963 m. P. L. J. Notes of cases 134) it was held that the requirement of this clause would be satisfied if the landlord merely says that he wants to build a house on the open land. " Other decisions S. Bootasingh Vs. Jamnaprasad (supra), and sushiladevi Vs. Madanlal (supra) and other cases relied on by the leaned Counsel for the appellant would support the above view. (Para 6 ). The question still surviving for consideration would be whether tin-shed for making furniture proposed to be constructed by the plaintiff-landlord can be said to house within the meaning of clause (n) of Section 12 (1) of the Act. According to Chambers twentieth Century Dictionary 1976 Edition, 1980 reprint house means a building for dwelling in, a building in general, a dwelling-place; an inn, a public house. According to Aiyars Judicial Dictionary 9th Edition word house inter alia would in its ordinary sense, include any building, irrespective of its use. According to Chambers twentieth Century Dictionary 1976 Edition, 1980 reprint house means a building for dwelling in, a building in general, a dwelling-place; an inn, a public house. According to Aiyars Judicial Dictionary 9th Edition word house inter alia would in its ordinary sense, include any building, irrespective of its use. Further it may be stated generally that the word house is a structure of a permanent character. Again the weight of judicial opinion is conclusively in favour of the view that the the word house extends to a building which is used for business and should not be restricted to a mere dwelling house. The dictionary refers to meaning in corpus Juris Secundum (vol. 41, Page 364) wherein it is said that in a legal sense, the word house is more comprehensive, but it is not limited to a structure designed for human habitation, and may mean a building or shed intended or used as a habitation or shelter for animals of any kind. (Emphasis supplied) (sic ). The observations in Prabhudayal Vs. Savitri Devi and another (supra) in para 4 of the judgment: "the reason appears to be to encourage new constructions for increasing residential accommodation. " Is in the nature of obiter and in view of the dictionary meaning as aforesaid the meaning of the word house cannot be read in restrictive sense so as to mean a building for dwelling in. It would also cover tin-shed proposed to be constructed by the plaintiff-appellant-provided it is a permanent structure. (Para 7) ( 14. ) ON the basis of above principle of law, evidence on record of the case and pleadings I do not find any merit in appeal No. 522/2003 filed by the defendant it is hereby dismissed. ( 15. ) WITH regard to appeal filed by the plaintiff No. 539/2003 regarding imposing condition by the Trial Court on the plaintiff for payment of cost of structure before possession it is clear from lease deed Ex. D. /1 that it was the duty of the tenant to remove the structure and hand over vacant possession of the land to the landlord, it is clearly mentioned in registered lease deed dated 07-06-1923 Ex. D. /1 that "after some time it has been agreed to give vacant possession after removing super structure over it. D. /1 that it was the duty of the tenant to remove the structure and hand over vacant possession of the land to the landlord, it is clearly mentioned in registered lease deed dated 07-06-1923 Ex. D. /1 that "after some time it has been agreed to give vacant possession after removing super structure over it. Apart from it the provisions of section 108 (h) of transfer of property Act is very clear which is quoted here under:- (h) the leasee may (even after the determination of the lease)remove, at any time (whilst he is in possession of the property leased but not afterwards) all things which he has attached to the earth; provided he leaves the property in the state in which he received it; (q) on the determination of the lease, the lessee is bound to put the lessor into possession of the properly. ( 16. ) A Division Bench of Madras High Court after analysing the aforesaid provision held as under. Shree Sidhi Budhi Vinayakagar and another vs. V. Marimuthu, reported in A. I. R. 1963 Madras Page 369 : both under the common law as well as under the transfer of property Act, the right of a tenant who had put up a superstructure on a lease-hold land which was taken on a terminable lease, will only to remove the superstructure at the time of delivery of possession on the termination of the lease. There would be no right to compel the landlord, unless the latter agrees to do so, to pay compensation for unwanted super structure. The landlord who had obtained possession of the land cannot be compelled to surrender back the land because the tenant had failed to remove the superstructure at the time he vacated the property. If it is proved that the landlord had appropriated the materials which formed part of the superstructure, the tenant can only have the value thereof assessed and recover the same. (Para 8 ). ( 17. ) IN my opinion learned Trial Judge wrongly applied principle of equity in favour of defendant granting compensation to them of removal of super structure by the plaintiff before delivery of possession. It is well established principle of law that equity does not operate against the statutory provision of law. (Para 8 ). ( 17. ) IN my opinion learned Trial Judge wrongly applied principle of equity in favour of defendant granting compensation to them of removal of super structure by the plaintiff before delivery of possession. It is well established principle of law that equity does not operate against the statutory provision of law. The condition is also contrary to principles of equity, it is a misplaced sympathy it is admitted fact that defendants and their assignees have been enjoying the benefit of 24,000 square feet of land of heart of the city of indore at the rent of Rs. 550 per month for the last 30 years. However the rent of the Raj Talkies area 30,000 square feet is stated Rs. 10,000/- per month, the trial Court has completely overlooked this fact. ( 18. ) THE Honble Supreme Court reported in (2005)1 S. C. Cases 705 in Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd. , held as under with regard to benefit of tenants and power of the Court:-That apart, it is to be noted that the appellate Court while exercising jurisdiction under Order 41 Rule 5 of the Code did have power to put the appellant tenant on terms. The tenant having suffered an order for eviction must comply and vacate the premises. His right of appeal is statutory but his prayer for grant of stay is dealt with in exercise of equitable discretionary jurisdiction of the appellate Court. While ordering stay the appellate Court has to be alive to the fact that it is depriving the successful landlord of the fruits of the decree and is postponing the execution of the order for eviction. There is every justification for the appellate court to put the appellant tenant on terms and direct the appellant to compensate the landlord by payment of a reasonable amount which is not necessarily the same as the contractual rate of rent. In Marshall sons and Co. (I) Ltd. Vs. Sahi Oretrans (P) Ltd. this Court has held that once a decree for possession has been passed and execution is delayed depriving the judgment-creditor of the fruits of decree, it is necessary for the court to pass appropriate orders so that reasonable mesne profits which may be equivalent to the market rent is paid by a person who is holding over the property. ( 19. ( 19. ) ON the basis of above facts and circumstances of the case the appeal filed by the landlord No. F. A. 539/2003 is allowed, condition No. 2 imposed by the Trial Judge in Para 16 and 18 of the judgment and decree is hereby deleted. The suit filed by the plaintiff is decreed with regard to eviction. The defendant/respondent is directed to hand over the vacant possession of the suit premises to the plaintiff/appellant immediately. ( 20. ) CONSEQUENTLY the F. A. No. 539/2003 is allowed with cost. Respondent has to pay the cost to the appellant throughout both the Court. F. A No. 522/2003 filed by the defendants is dismissed with cost. The defendants/appellant would pay the cost to the respondent of the appeal. First Appeal allowed.