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2005 DIGILAW 477 (UTT)

Brij Rani v. Tulsi Loshali

2005-11-17

J.C.S.RAWAT

body2005
JUDGMENT J.C.S. Rawat, .I.-The present second appeal has been filed against the judgment and decree passed by the District Judge. Nainital on 29.09.2005 in Civil Appeal No. 14 or 2005 arising out of the judgment and decree dated 27.05.2005 passed by the learned Civil Judge (Junior Division). Haldwani in suit No. 17 of 2003 by which the appellant court as well as the trial court has decreed the suit of the respondents/plaintiffs and passed the eviction order against the petitioners. 2. The petitioners are the tenant in the disputed premises and it is alleged in the plaint before the court below that Mohan Chandra Losani let out the disputed plot to Chote Lal @ Rs. 175/- p.m. It is also averred in the plaint that Chote Lal constructed a temporary fur over the land and he started his Atta Chakki over the land. Shri Chote Lal died and his legal heirs started the business over the disputed land. It was further alleged that the defendants/petitioners had not paid any rent from July, 2000 to the date or notice. A notice terminating the tenancy u/s 106 T.P. Act was given by the respondents/plaintiffs on 22.02.2002 which was served upon the defendants on 26.02.2002. Inspite of the notice the defendant/appellants had not vacated the premises and the respondents filed a suit before the competent court for the eviction and arrears of rent. The suit was contested by the defendants/appellants. It was admitted in the written statement that the said plot was taken on lease from Mohan Chandra Losali and they have purchased the 'MALWP: of the temporary fur from the Raj Bahadur Singh. It was alleged that the defendant Nos. 4 to 7 were not the tenants of the said premises. It was alleged that they had deposited the entire claimed amount under Section 30 of the Act No. 13 or 1972. It was further alleged that a suit was filed by the appellants against the Mohan Chandra Losali for the injunction which was decreed by the competent court. 3. The trial court after perusal of the pleadings framed the necessary issues. The trial court came to the conclusion that the defendants/appellants and respondent No.4 to 7 were the tenants or the said premises and it was further held that the said fur was not purchased by the defendants/appellants from Raj Bahadur Singh and it was further. 3. The trial court after perusal of the pleadings framed the necessary issues. The trial court came to the conclusion that the defendants/appellants and respondent No.4 to 7 were the tenants or the said premises and it was further held that the said fur was not purchased by the defendants/appellants from Raj Bahadur Singh and it was further. held that the court had got jurisdiction to hear the suit and the learned Trial court decreed the suit for the rent and ejectment of the appellants and the learned trial court has also held that the defendant/appellants were the defaulter and had to pay the 'arrears of rent from July. 2000. It was further held that the plaintiffs/respondents are entitled to get 7,195/-. Ultimately the suit was decreed for eviction. 4. Feeling aggrieved by the said order, this appeal was preferred before the learned District Judge. While dismissing the appeal by the learned District Judge, the learned District Judge held that there was a issue in the said suit as to whether the appellant/defendants were the tenant of the said premises of the plaintiffs/respondents or not. It was held by the learned District Judge that in Suit No. 7/2000, it was held that the defendants/petitioners were the tenants of the respondents/plaintiffs. The learned District Judge also observed in the said suit that the appellant/defendants would only be evicted without due process of law. It was further held that the earlier suit filed by the appellant/defendants against the respondent/plaintiffs was suit for injunction. The present suit is for the eviction of the defendant/appellants hence suit was not barred by the principle of ros-judicata. It was further held that the said plea was not raised in the pleading by the petitioners. The plea cannot be taken by the defendants at the appeal without seeking proper amendment in the pleadings. 5. The second point was raised before the learned District Judge that Act No. 13 of 1972 was applicable in the said premises. The premises are covered under Section 3 (1) of the said Act. The said premise is buildings within the definition of the buildings defined under Section 3 (1) of the said Act. Learned District Judge held that the Act No. 13 of 1972 is not applicable to the said premises. The premises are covered under Section 3 (1) of the said Act. The said premise is buildings within the definition of the buildings defined under Section 3 (1) of the said Act. Learned District Judge held that the Act No. 13 of 1972 is not applicable to the said premises. The learned District Judge further held that the said premises are not covered, within the definition of the buildings under Section 3 (1). He has further held that the respondents/plain tills only lease out the vacant plot to the petitioners/defendants and the defendants/petitioners raise the temporary shed over the said land after the creation of the tenancy with the consent of the landlord. The said premises are not covered within the definition of the buildings. The third point which was raised before the learned District Judge that the defendants/appellants are entitled to get the benefit of Section 29 'P\ of U.P. Act. No. 13 of 1972. The learned District Judge held that Section 29-A (2) clearly reveals that the said section apply to the rent let out either before or after the commencement of this Act where the tenant with the consent of landlord's has erected any permanent structure and incurred expenses in execution thereof. Learned District Judge held that the tin shed which has been said to be constructed by the defendant/appellants is only a temporary structure as such the provisions of Section 29-A (2) are not applicable in this case. The next point was raised before the learned District Judge that the Judge Small Causes Court has got the jurisdiction to hear the suit under Article 4, Schedule 2 of Section 15 of S.C.C. The learned District Judge held that the said provisions are only applicable where the eviction is made from the building. The said premises are not covered by the definition of t:1l: buildings, as such, the suit is cognizable by the competent Civil Court. 6. I have heard learned counsel for the appellants and also perused the substantial point framed by the appellant. I have also gone through the entire record of the case. The learned trial court as well as the appellate court has held that the said premises were let out to defendants by the plaintiffs and also held that the said premises at the time of the creation of tenancy was vacant land. I have also gone through the entire record of the case. The learned trial court as well as the appellate court has held that the said premises were let out to defendants by the plaintiffs and also held that the said premises at the time of the creation of tenancy was vacant land. It was further held that the petitioners/defendants raised the temporary shed with the consent of the landlord/respondents after the creation of the tenancy. Both the courts below concluded their findings on the evidencc, adduced by the• parties. There is admission on behalf of the appellant/defendants in the plaint of said suit bearing No. 7/2000. which was filed before the Civil Judge that the vacant land was leased out to her husband and the defendant/appellants raised the temporary shed with the consent of the plaintiffs/respondents after the creation of the tenancy. Apart this both the trial courts has relied upon the statement of DW-l who has also stated the above fact. The premises cannot be termed as building under Section 3 of the said Act. In view of the above evidence, the trial court as well as the appellate court were justified in giving the findings in favour of the plaintiffs/respondents. I do not find any perversity in the evidence recorded by the courts below. . 7. Perusal of Section 15 Judge Small Cause Courts Act read with Schedule 2. Article 4 clearly reveals that the eviction of the tenants from the building would lie before the Judge Small Cause Court. Schedule II. Art. 4 of Small Cause Courts Act is as follows :- . "(4) a suit for the possession of immovable property or for the recovery of an interest in such property but not including a suit by a lessor for the eviction of a lessee from a building after the determination of case and for the recovery from him of compensation for the use and occupation of that building after such determination of lease." 8. . The eviction of the tenants from the vacant land cannot be filed before the Judge Small Cause Court. If the plaintiffs seek eviction .of a person from a vacant land over which a temporary construction has been made the suit will lie before ~he competent Civil Court. The said premises cannot be said to be a building. . The eviction of the tenants from the vacant land cannot be filed before the Judge Small Cause Court. If the plaintiffs seek eviction .of a person from a vacant land over which a temporary construction has been made the suit will lie before ~he competent Civil Court. The said premises cannot be said to be a building. The temporary construction over the said premises is not covered within the meaning of the building, as such, the civil court has got jurisdiction to try the suit. . 9. Under Section 29-A (2) it is provided that the said section is only applicable to the premises let out either be for or after the commencement of this Section where the tenant with the consent of landlord's has erected any permanent structure and incurred expenses in execution thereof. Perusal of the Section clearly reveals that the appellant will have to show that the tenant had erected with the consent of the landlord a permanent structure over the land let out to him. The appellants will have to further show that he had incurred sufficient expenditure in execution thereof. In the instant case there is no evidence that there was a permanent structure over the said premises. It is concurrent finding of both the courts that the vacant land was let out to the appellant/defendants and later the appellant/defendants erected the temporary structure over the said land with the consent of the landlord. There is no evidence that the permanent structure was made over the said land. A" such. the said provision is not attracted in this case. 10. It was further pointed out that principle or resjudicata is applicable in this case. Learned counsel for the Petitioners contended that the appellants filed a suit of injunction bearing No. 7/2000 before the competent Civil Court and it was held that the appellants would not be evicted without due process or law from the said premises. Perusal of the judgment as well as the order passed by the lower courts, clearly reveals that the said suit was only decreed for the injunction and was further directed not to evict without due process of law to the appellants. It was further held in that case that the plaintiffs are the landlords and the appellants are the tenants of the said premises. It was further held in that case that the plaintiffs are the landlords and the appellants are the tenants of the said premises. The present suit has been riled to evict the appellant defendants" as such the eviction has been made by due process of law. The principle of resjudicata is not applicable in this case. This pica has not been raised in the pleadings, as such, this plea cannot be raised at the time of the second appeal. 11. In view of the above discussion. I do not find any substantial question of law decided in this appeal. 12. The appeal is devoid of merit is liable to he dismissed and the same is dismissed accordingly. 13. No order as to costs.