This Second Appeal has been filed by the defendant-appellants against the judgment and decree dated 30 March 2019 passed by the IVth Additional District Judge, Agra in Civil Appeal No.208 of 2017 (Navin Chand vs. M/s Roshan Transport and Forwarding Agency, Agra & Ors.) arising out of the judgment and decree dated 27 November 2017 passed by the Additional Civil Judge (Senior Division), Court No.3, Agra in Original Suit No.35 of 2010 (Navin Chand vs. M/s Roshan Transport and Forwarding Agency, Agra & Ors.).
The aforesaid suit was filed by the plaintiff-respondent, who is the landlord of property at 6/119, Tara Niwas, Belanganj, Agra, against the defendant-appellants (tenants) for a decree of ejectment to vacate the land in suit and to deliver vacant physical possession of the same to the plaintiff-respondent. Further relief was sought for recovery of a sum of Rs.132877.32 from the defendant-appellants, a decree of a mesne profit and a decree of permanent prohibitory injunction.
The plaint case, in brief, is that the defendant nos.1 and 2 were monthly tenants of an open piece of land which was let-out on rent to them by the plaintiff-respondent at the rate of Rs.625/- per month. The tenancy was with the agreement that if any constructions were raised, they would be temporary in nature with a right to remove the same at the time of vacation. The defendant nos.1 and 2 did not pay rent since January 2008 even after repeated demands. The plaintiff-respondent came to know that the defendant nos.1 and 2 had sub-let the tenanted land to the defendant no.3 and were charging a heavy amount of rent from the defendant no.3 against the terms of tenancy. It was alleged that the defendants have changed the purpose of tenancy and since the defendant nos.1 and 2 were raising permanent constructions over the land in suit, the plaintiff-respondent filed a suit in 1977 against them for injunction. In the suit of 1977 a compromise was entered into between the plaintiff-respondent and the defendant nos.1 and 2 giving them time to vacate the land in question while making it clear that any constructions raised by the defendants would be deemed to be of a temporary nature which they could take with them at the time of handing over possession of the land to the plaintiff-respondent and also that the tenancy would be on month to month basis and during the period of eight years, the plaintiff of the said suit would have a right to raise constructions and make first floor on the land in question. The compromise was made part of the decree. A notice dated 14 November 2008 was sent to the defendant nos.1 and 2 terminating the tenancy and demanding arrears of land and mesne profit of Rs.25,000/- per month till actual delivery of possession. Other notices were sent on 30 December 2008 and 18 May 2009 which all were replied to by the defendant-appellants.
The defendant-appellants filed a written statement denying that open land was let out and that the building in the tenancy of the defendants was a 'pucca' roofed construction. Allegation of sub-letting was also denied. However, with regard to the fact that the compromise was entered into between the plaintiff-respondent and the defendant-appellants, the same was not specifically denied. It was stated that the premises in the tenancy was of a building and that the defendant-appellants had remitted the rent due to the plaintiff-respondent for the period from 1 January 2008 to 31 July 2009 after notice was received but the plaintiff-respondent deliberately refused to accept the rent and, therefore, the defendant-appellants were depositing the rent upto the date in court. That they are tenants protected under the U.P. Act No.13 of 1972 [the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972]1. On the basis of the pleadings, the trial court framed 12 issues which are translated as follows:-
"1. Whether the property in suit was given to the defendant as open land on rent, as it has been stated in the plaint?
2. Whether the defendant has constructed godown on the property in suit with the plaintiff's consent, as it has been stated in the written statement?
3. What is the effect of compromise decree passed in original suit no. 146/77 on construction of property in suit?
4. Whether the defendants no. 1 and 3 are the same person or different?
5. Whether the defendants no. 1 and 2 have sublet the property in suit to the defendant no. 3?
6. Whether the defendants are creating nuisance, as has been stated in the plaint?
7. Whether the provisions of U.P. Act No. 13, 1972 apply to the property in suit, as has been stated in the written statement?
8. Whether the defendants no. 1 and 2 are defaulters in payment of rent?
9. Whether the defendants are liable to pay compensation at the rate of Rs. 25,000/- per month as mesne profit ?
10. Whether the Court has no jurisdiction to entertain the suit?
11. Whether the suit is undervalued and paid court fee is insufficient?
12. Relief?"
(English translation by Court) The trial court took into consideration the pleadings and the testimonies of the PW-1 and DW-1 and found that initially when the tenancy was created, open land was given to the defendant nos.1 and 2. Pursuant to the compromise entered into in Suit of 1977, the defendant nos.1 and 2 were permitted to make temporary constructions and in terms of the compromise, they made the eastern and southern walls and put a tin-shed on top. The tin-shed has been referred to in the rent receipts of 1983. From the year 1983 to 2002, no rent receipts were filed and for the years 2002 to 2007, the defendant nos.1 and 2 have been shown as tenants of open land in the rent receipts. The trial court observed that it has not been stated in the plaint that defendant nos.1 and 2 had made constructions with the consent of the plaintiff. The trial court found that the constructions made by the defendants over the land in dispute are temporary in nature. It was observed that even though the constructions were of the year 1982-83 but on removing them, the remaining property would not suffer any irreparable damage and the constructions could not be called a permanent. The trial court relied upon the report of the Advocate Commissioner and also referred to the receipt book of tenancy containing receipts from 12 August 2002 to 11 October 2007. In these receipts, M/s Roshan Transport has been shown as tenant of the open land of property in question. Thus, the defendant-appellants were given open land on rent on which they made constructions with the plaintiff's consent which were not of permanent nature. The trial court also found that the suit is not barred by the provisions of the Act of 1972 and the court had jurisdiction. The trial court also found that there has been no default in payment of rent by the defendant nos.1 and 2 inasmuch as the entire outstanding from January 2008 was deposited in court after the Money Order sent for the amount was repeatedly refused by the plaintiff. The trial court refused damages claimed by the plaintiff and the suit was dismissed.
The plaintiff-respondent filed an appeal challenging the decree of the trial court. The lower appellate court referred to the terms of the compromise entered into between the parties in the Suit of 1977 and held that just because there were two walls erected by the defendants, that itself would not make the construction a building. The lower appellate court observed that the provisions of the Act of 1972 are not applicable to open land but only to buildings. It was found that the defendants had not produced any document which could show that the aforesaid property was given on tenancy in the form of a godown. It was held that the constructions made by the defendants over the property in question were only for their requirement and were temporary in nature. The lower appellate court observed that after the period of eight years expired in 1986, as was mentioned in the compromise in the suit of 1977, in terms of Section 116 of the Transfer of Property Act, 18822, the tenancy was continuing on a month to month basis. While referring to the rent receipts that were filed for the period from 12 August 2002 to 11 October 2007, it was noted that the tenancy was with regard to the open land and no documentary evidence to the contrary was produced by the defendants. The defendant-appellants had paid rent to the plaintiff-respondent till the year 2007 and none of the parties produced any agreement pertaining to the tenancy. There was no averment of the defendant-appellants that the tenancy had ceased after 1986 and thereafter any fresh tenancy was created. The defendant-appellants continued as tenants under the provisions of Section 116 of the TP Act. The lower appellate court held that pursuant to the notice dated 18 May 2019, which was duly served on 21 May 2019 on the defendants and since the defendants did not follow the terms of the notice in question, therefore, thirty days after service of the aforesaid notice, the tenancy of the defendants came to an end on 22 June 2019. The lower appellate court also granted outstanding rent and mesne profit. The appeal was partly allowed.
The contention of the learned counsel for the appellants is that the lower appellate court has erred in holding that the property in dispute would not be a building. He has contended that the definition of the word 'building' as appearing in the Act of 1972 read with sub-section (2) of Section 2 of the U.P. Municipalities Act, 19163, would clearly demonstrate that the constructions existing over the property in dispute would come under the definition of 'building' and, therefore, the provisions of the Act of 1972 would be applicable rendering the courts below without jurisdiction to try the suit. It has been further contended that the constructions, as they stand, are permanent in nature and, therefore, the benefit of Section 29A of the Act of 1972 would be available to the defendant-appellants making the provisions of the Act of 1972 applicable. It has also been stated that the lower appellate court ought to have exercised its jurisdiction under Order 41 Rule 33 of the Code of Civil Procedure, 19084 and should have passed such further or other decree or order as was required. Learned counsel has also placed reliance on judgments of the Supreme Court in the matter of A. Satyanarayan Shah vs. M. Yadgiri5 (paragraphs 8 and 9); Giani Ram & Ors. vs. Ramjilal & Ors.6 (paragraph 8) and K. Muthuswami Gounder vs. N. Palaniappa Gounder7 (paragraph 12).
Countering the submissions of the learned counsel for the appellants, Shri Atul Dayal, learned Senior Advocate appearing for the plaintiff-respondent has referred to the provisions of Section 29A of the Act of 1972 and has contended that the section applies only to land let out where the tenant, with the landlord's consent, has erected any permanent construction and incurred expenses in execution thereof. Learned counsel has referred to the report of the Advocate Commissioner that has been enclosed as Annexure-6 to the affidavit filed on behalf of the defendant-appellants to demonstrate that the construction over the property in question is not permanent in nature. He has also referred to the findings of the courts below with regard to the compromise entered into between the parties in the aforesaid suit of 1977 which would reflect that the constructions made by the defendant-appellants over the tenanted premises were temporary in nature. He has contended that the terms of the compromise was specific that after the tenancy was determined, the defendant-appellants would remove and take away all the constructions. It is stated that the contention of the learned counsel for the appellants that the property would constitute a building and, therefore, would be covered under the provisions of the Act of 1972 is baseless. He has relied upon the judgments of this Court in the matters of Sunder Lal Bhatia through its Legal Representative vs. Onkar Nath Saxena & Ors.8; Vijai Kumar vs. Mukund Das9; and Madan Lal Gupta vs. XVIIth Additional District Judge, Meerut and Ors.10 (which judgment has followed the judgment of the Supreme Court in the matter of Harish Chandra & Anr. vs. Mohd. Ismail & Ors.11 ) to demonstrate that the constructions of the defendant-appellants being temporary in nature would not constitute a permanent construction, as mentioned in Section 29A of the Act of 1972, under the facts and circumstances of the case and, therefore, no such substantial question of law exists. Further reference was made to the judgment of this Court in the matter of Ramakant vs. Om Prakash12 to fortify his submission that the benefit of Section 114 of the TP Act cannot be extended for want of any express condition in any agreement for payment of rent and as a consequence of failure, to re-enter, and as such the landlord has the right to terminate the tenancy by notice under Section 106 of the TP Act. Judgments of this Court in the matters of Devi Prasad Sachan vs. Special Judge (SC/ST Act), Kanpur Dehat & Ors.13; (Smt.) Prakash Rani @ Prakashwati vs. VIth Additional District Judge, Bulandshahr & Ors.14 were also relied upon.
The courts below have recorded a finding of fact that there is no permanent construction existing on the property in dispute and that the constructions are purely temporary in nature.
An extract of section 29A of the Act of 1972 is as follows:
"29A. 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 "buildings".
(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 sub-section (2) as they apply in relation to any building.
.............."
The contention of the learned counsel for the appellants that the word 'building' as defined in the Act of 1972 read with Section 2(2) of the Municipalities Act would constitute a building and, therefore, the provisions of the Act of 1972 would be applicable, is misplaced in view of the categorical finding of the courts below that the document, paper no.45-ग, which is the receipt book of tenancy containing receipts for the period from 12 August 2002 to 11 October 2007, evinces that the tenanted premises in dispute was open land and no material to the contrary has been filed by the defendant-appellants. Thus, there was no material before the courts below as evidence of any constructions in the tenanted premises existing for that period. That being the case, the provision of Section 29A of the Act 1972 would be referred to, which restricts the application of that section (which came into force from 5 July 1976) only to land let out either before or after the commencement of that Section, where the tenant with the landlord's consent has erected any permanent structure and incurred expenses in execution thereof. A perusal of the judgments of the courts below reflect that no evidence was filed by the defendant-appellants evincing the consent of the plaintiff-respondent for erection of any permanent structure or, that any permanent structure was erected. The findings of the courts below are categorical in this regard.
The cases cited by the learned counsel for the defendant-appellants would not be applicable in the instant case. In A. Satyanarayan Shah (supra), the Supreme Court observed that the term 'building' has to be interpreted liberally and not narrowly in the background of the wooden structure existing on the land. In Giani Ram and K. Muthuswami Gounder (supra), the Supreme Court, while considering the scope of Order 41 Rule 33 of the CPC, held that power thereunder can be exercised by an appellate court where a party is entitled to a right, and, only in exceptional cases.
In the judgment referred to by the learned counsel appearing for the plaintiff-respondent in the matter of Sundar Lal Bhatia (supra) this court was considering, inter alia, a substantial question of law "whether the constructions raised by the appellant on the land in dispute is permanent structure within the meaning of Section 29-A (2) of U.P. Act No.13 of 1972". In that case the defendant-tenants had pleaded that a plot was taken on rent for purpose of putting a permanent structure thereon, which structure was put up with consent concurrence and knowledge of the plaintiff. It was pleaded that the defendants are protected under the Act of 1972 and cannot be evicted. This Court applied the tests specified in the judgments of the Supreme Court in the matters of Venkatlal G. Pittie & Anr. vs. Bright Bros. Pvt. Ltd.15 and Purushottam Das Bangur & Ors. vs. Dayanand Gupta16 and held that the structures/constructions raised on the disputed land cannot be said to be a permanent structure within the meaning of Section 29A of the Act of 1972. With regard to the fact whether the structures were raised without consent or permission of the landlord, it was found that it was a question of fact and concurrent findings were recorded by both the courts below and nothing to the contrary was demonstrated. A similar view was taken in the case of Vijai Kumar (supra). In view of the concluded findings of fact that open land was given on tenancy, and, that the constructions were temporary, the substantial question being raised by the defendant-appellants in this appeal has already been answered in the case of Sundar Lal Bhatia (supra).
Thus, no substantial question of law exists in the present case meriting its admission. This appeal is, accordingly, dismissed.
Date: 26.07.2019 SK (Jayant Banerji, J)