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2012 DIGILAW 778 (UTT)

GIRVAR LAL v. NEENA RAJDAN

2012-12-19

SUDHANSHU DHULIA

body2012
JUDGMENT Hon’ble Sudhanshu Dhulia, J. (Oral) 1. Heard Mr. Neeraj Garg, Counsel for the defendant/appellant and Mr. Piyush Garg, Counsel for the plaintiffs/respondents. 2. This second appeal has been filed by the defendant/appellant. The plaintiffs/respondents had filed a suit for eviction in the year 1985 before the First Additional Civil Judge (Junior Division), Dehradun. The case of the plaintiffs/respondents was that an open portion of land was rented-out to the defendant/appellant way back in the year 1968. The land was not given for any residential or non-residential purpose but it was given to keep his animals on the said land. The case of the plaintiffs/respondents was that defendant/appellant on his own motion constructed a temporary tin-shed inspite of objection of the plaintiffs/respondents. The plaintiffs/respondents therefore were constrained to file a suit before the Judge, Small Causes Court for rent and eviction in which objections were raised by the defendant/appellant that the suit cannot be filed before the Judge, Small Causes Court and only a regular suit has to be filed inasmuch as the subject matter of the suit is an open land and not a building. Consequently, the suit was filed in the year 1985 before the Court of Civil Judge (Junior Division), Dehradun. In the said suit, the preliminary objection raised by the defendant/appellant was that the learned trial court has no jurisdiction to decide the said suit. The defendant/appellant before this Court admitted the ownership as well as the fact that the plaintiffs/respondents are the landlord. The defendant/appellant also admitted that he had been allowed to keep animals on the said land and it was given for non-residential purpose. The defendant/appellant states that with the consent of the plaintiffs/respondents he constructed the tin-shed in the year 1968 and since there was consent of the plaintiffs/respondents for this construction and also since it was a permanent structure he is protected by Section 29-A of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972 (hereinafter referred to as the “Act”). Section 29-A of the Act reads as under: - “29-A. Protection against eviction to certain classes of tenants of land on which building exists.- (1) For the purposes of this section, the expressions “tenant” and “landlord” shall have the meanings respectively assigned to them in clauses (a) and (j) of Section 3 with the substitution of the word “land” for the word “building”. (2) This section applies only to land let out, either before or after the commencement of this section, where the tenant, with the landlord’s consent has erected any permanent structure and incurred expenses in execution thereof. (3) Subject to the provisions hereinafter contained in this section, the provisions of Section 20 shall apply in relation to any land referred to in a sub-section (2) as they apply in relation to any building. (4) The tenant of any land to which this section applies shall be liable to pay to the landlord such rent as may be mutually agreed upon between the parties, and in the absence of agreement, the rent determined in accordance with sub-section (5). (5) The District Magistrate shall on the application of the landlord or the tenant determine the annual rent payable in respect of such land at the rate of ten percent per annum of the prevailing market value of the land, and such rent shall be payable, except as provided in sub-section (6) from the date of expiration of term for which the land was let or from the commencement of this section, whichever is later. (6)(a) In any suit or appeal or other proceeding pending immediately before the date of commencement of this section, no decree for eviction of a tenant from any land to which this section applies, shall be passed or executed except on one or more of the grounds mentioned in sub-section (2) of Section 20, provide the tenant, within a period of three months from the commencement of this section by an application to the court, unconditionally offers to pay to the landlord, the enhanced rent of the land for the entire period in suit and onwards at the rate of ten per cent per annum of the prevailing market value of the land together with costs of the suit (including costs of any appeal or of any execution or other proceedings). (b) In every such case, the enhanced rent shall, nothwithstanding anything contained in sub-section (5), be determined by the court seized of the case at any stage. (c) Upon payment against a receipt duly signed by the plaintiff or decree-holder or his counsel or deposit in court of such enhanced rent with costs as aforesaid being made by the tenant within such time as the court may fix in this behalf, the court shall dismiss the suit, or, as the case may be, discharge the decree for eviction, and the tenancy thereafter, shall continue annually on the basis of the rent so enhanced. (d) If the tenant fails to pay the said amount within the time so fixed (including any extended time, if any, that the court may fix or for sufficient cause allow) the court shall proceed further in the case as if the foregoing provisions of this section were not in force. (7) The provisions of this section shall have effect, nothwithstanding anything to the contrary contained in any contract or instrument or in any other law for the time being in force. Explanation.- For the purposes of sub-section (6) where a case has been decided against a tenant by one court and the limitation for an appeal therefrom has not expired on the date immediately before the commencement of this section, this section shall apply as it applies to pending proceedings and the tenant may apply to that court for a review of the judgment in accordance with the provisions of this section.]” 3. Relying upon sub-clause (2) of Section 29-A of the Act the appellant would argue that the construction on open land was made by the defendant/appellant by permission of the landlord and hence the “premises” in question is covered by Act XIII of 1972 and appellant can only proceed to evict him under the provision of Act XIII of 1972. 4. Trial court framed several issues, but one of the issues was as to whether the court has jurisdiction to entertain the said matter or not. The trial court came to the conclusion that nothing substantial has been placed by the defendant/appellant to this effect and this issue was decided against him, holding that the court had the jurisdiction. Another issue was with regard to applicability of Section 29-A of the Act. The trial court came to the conclusion that nothing substantial has been placed by the defendant/appellant to this effect and this issue was decided against him, holding that the court had the jurisdiction. Another issue was with regard to applicability of Section 29-A of the Act. The trial court while deciding the said issue has elaborated on the two aspects which are that in order to defend Section 29-A of the Act the construction is made with the consent of the landlord and second the construction is of a permanent construction. On both these findings, the trial court came to the conclusion that since onus was entirely upon the defendant/appellant he has failed to show that there was an expressed or implied consent of the landlord/plaintiffs / respondents. Moreover, since it was admitted that the tenant/defendant/appellant himself has filed a suit for permanent injunction in the year 1976 which was decreed in the year 1978 where it was held that the defendant/appellant was the tenant of the plaintiffs/respondents and he can only be removed in accordance with law, but this has an important bearing in the present matter in which he showed himself as tenant and he himself filed a suit for permanent injunction in the year 1976 stating that there was implied or expressed consent of the landlord for the said construction. Admittedly a building is defined under Section 3(i) of the Act, which reads as under: “3. Definitions. (a) … (b) … (c) … (d) … (e) … (f) … (g) … (h) … (i) “building”, means a residential or non-residential roofed structure and includes (i) any land (including any garden), garages and out-houses, appurtenant to such building; (ii) any furniture supplied by the landlord for use in such building; (iii) any fittings and fixtures affixed to such building for the more beneficial enjoyment thereof;” 5. A learned Single Judge of this Court in the case of Manohar Lal Sharma Vs. Saktoo Ram (since deceased) and others reported in 2007 (2) U.D.,373 has held has under: - “9. Learned counsel for the appellant argued that the room over the plot is a roofed structure and, as such, is a building for the purposes of Section 3(i) of the U.P. Act. No. 13 of 1972. Saktoo Ram (since deceased) and others reported in 2007 (2) U.D.,373 has held has under: - “9. Learned counsel for the appellant argued that the room over the plot is a roofed structure and, as such, is a building for the purposes of Section 3(i) of the U.P. Act. No. 13 of 1972. In the opinion of this Court, to examine whether the property let out is a building or simply a land, it is to been seen whether, the land was let out with a small room over it, or the room is let out with the land appurtenant thereto. The rent note on record, executed between the parties, establishes on the record that it was a plot which was let out, over which the tenant had constructed a temporary room. As such, it cannot be said that the building let out by the landlord with appurtenant land thereto. In such cases the constructions which were made over the land in suit cannot be considered to be a building for the purposes of Section 3(i) of the U.P. Act No. 13 of 1972. This view gets support from what has been held by the Allahabad High Court in Ram Kumar Vs. Baboo Ram Gupta; reported in 1975 Allahabad Law Reports 414. In such kind of lease of plot, on eviction, the tenant has always got a right to remove the building material of temporary room constructed by him over the land under tenancy. Having gone through the impugned judgment and orders and also the evidence on record, this Court is of the firm opinion that what is let out by the plaintiff was a plot and not building. As such, the first substantial question of law formulated by the Allahabad High Court, stands answered.” 6. The purpose of construction of tin-shed was to keep the animals. It was definitely not a permanent structure as contemplated under Section 29-A of the Act. Secondly since the appellant had himself filed a suit for injunction against his landlord seeking protection as far back in 1976 it is implied that the “Construction” was not with the consent of the landlord. This aspect has been well decided by trial court. It was definitely not a permanent structure as contemplated under Section 29-A of the Act. Secondly since the appellant had himself filed a suit for injunction against his landlord seeking protection as far back in 1976 it is implied that the “Construction” was not with the consent of the landlord. This aspect has been well decided by trial court. The defendant/appellant further contends that the lower appellate court has only reiterated the findings of the trial court but same is not as per Order XLI Rule 31 of CPC inasmuch as there is no specific determination of each issue and no reasons have been assigned for the same. 7. Counsel for the plaintiffs/respondents, on the other hand, states that the judgment of the lower appellate court is not contradictory with the Order XLI Rule 31 of CPC. Learned counsel for the plaintiffs/respondents has relied upon paragraph 9 of the judgment of Hon’ble Apex Court in G. Amalorpavam and others Vs. R.C. Diocese of Madurai and other reported in (2006) 3 SCC 224 . Paragraph 9 of the said judgment reads as under: “9. The question whether in a particular case there has been a substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate Court is in a position to ascertain the findings of the lower appellate Court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been farmed by the appellate Court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the Rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the Court on the rival contentions which arise for determination and also to provide litigant parties opportunity is understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of Second Appeal conferred by Section 100 CPC.” 8. It is indeed true that full compliance of Order XLI Rule 31 of the CPC has not been made by the lower appellate court as it has not fully discussed each issue separately and given its findings thereon, but nevertheless inspite of this technical shortcomings in the judgment it is possible for this Court to make out that atleast substantial compliance has been done and that would be sufficient for our purposes. Therefore this Court finds that no benefit on this aspect can also be given to the defendant/appellant. 9. Therefore this Court is of the view that no substantial question of law is made out in the second appeal and the second appeal is liable to be dismissed and is hereby dismissed. The defendant/appellant is directed to handover the peaceful possession of the property to the plaintiffs/respondents within a period of four months from today i.e. on or before 19th April, 2013. It is made clear that till such period, the defendant/appellant shall not be evicted by the plaintiffs/respondents or their agents. 9. No order as to costs.