Heard Sri Diwakar Rai Sharma, learned counsel for the defendant-appellant and Sri Pankaj Agarwal, learned counsel for the plaintiff-respondent.
This is a second appeal under Section 100 of the Code of Civil Procedure filed against the judgement and decree dated 29.9.2010 passed in Civil Appeal No.65 of 2005 by Additional District Judge, Court No.11, Aligarh whereby the appeal of the plaintiff-respondent has been allowed and the suit for eviction has been decreed.
Sri Sharma has submitted that the land in question contained a tin shed. A tin shed would be covered in the definition of a building hence the land was appurtenant to a building and, therefore, the provisions of U.P.Act No.13 of 1972 (U.P.Urban Building Regulation of Letting, Rent and Eviction) Act, 1972) would apply and the trial court has rightly dismissed the suit of the plaintiff-respondent on that ground. He submits that the first appellate court has illegally held that the suit could be maintainable in the Civil Court and the provisions of U.P.Act No. 13 of 1972 would not apply in the case. His submission is that when there is a tin shed which is let out, it would be an accommodation and will be covered within the definition of 'building' as given in Section 3 of U.P.Act No. 13 of 1972. According to him, the tin shed along with land was let out to the defendant-appellant for running a saw mill.
The second submission is that six months' notice under section 106 of the Transfer of Property Act, 1882 given by the plaintiff-respondent was invalid inasmuch as it was a month to month tenancy and, therefore, six months' notice was not required but notice as provided in the second part of Section 106 (1) of Transfer of Property Act, 1882 could alone terminate the lease.
In favour of his first submission Sri Sharma has placed reliance on the decision of a learned single Judge of this court in the case of Kali Ram vs. Mistri Udai reported in 2010(3) ARC 750 and has referred to paragraphs 23, 24 and 25 of the said decision. Paragraphs 23, 24 and 25 of the judgment are quoted below:-
"23. Similarly, in the case of Koti Saroj Anamma & Anr. V. Jonnalagada Malleswara Rao, AIR 1995 SC 1401: 1995 SCFBRC 379, the Apex Court has held as follows:
"7. Looking to the evidence, it is clear that the shed, which has a zinc sheet roof, was erected only to protect the Saw mill machinery. What was leased out to the respondent was substantially the Saw mill machinery for the purpose of carrying on timber/Saw mill business. The shed was merely erected to shelter the machinery. The dominant purpose of the lease was to lease out the Saw mill machinery. In order that the lease should be covered by the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, the lease should be of a building as defined in Section 2(iii). It should, therefore, be a lease of any house or a hut or a part of a house or a hut let for residential or non-residential purposes. It would include gardens, grounds, garages and outhouses appurtenant to such a house or a hut. In the present case, however, the lease is not of any house or a hut or part of a house or a hut. The lease is of a Saw mill machinery which is covered by a zinc sheet shed. The dominant purpose of the lease is to lease out the machinery. The shed is only an adjunct. It is also pointed out that a covering over the machinery in the shape of a structure consisting of zinc sheets supported on poles can hardly be called a house or even a hut. In any case, looking to the dominant purpose of the lease, the two courts below have rightly come to the conclusion that the lease is not covered by the provisions of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act. 1960."
24. The proposition of law as laid down by the Apex Court, in my considered view, clinches the issue in favour of the plaintiff landlord. The pleadings in this regard, para-4 A of the plaint in particular has been mentioned in the earlier part of the judgment. The tenant D.W.-1 in his deposition has stated that he is carrying on business of repairing tractors and took the property in question for the said purpose. Further he is repairing the tractors on open piece of land. He states that the kothari is being used for the purpose of keeping tools. Thus, it is admitted case of the defendant tenant that he took the property in question for the purposes of repairing the tractors and keeping the tools in the kothari. It has also been noticed herein that the tin shed/kothari is in existence on one of the corners of the land in question having small dimensions 8 feet x 8 feet while the total dimension of the land in question is 52 feet x 42 feet.
25. As against above, learned counsel for the opposite party referred Ram Dularey v. D.D. Jain and others, 1965 ALR 722, a case under the old Act with reference to the question as to whether jhopari with thatched roof is accommodation or not. Jhopari has been held to be a building. The said decision is distinguishable on fact as the question involved herein i.e. letting of a vacant piece of land having small roofed structure is not there. Obviously, if the roofed structure has been let out, it will be an accommodation. The said case is not much assistance to the defendant opposite party. Similarly Om Prakash v. the III Additional District Judge, Meerut and other, 1981 ARC 278, is also distinguishable on fact as it was with respect to a temporary wooden "Khoka" kept on the land in suit. It was held that the building may also include within its scope any structure which may not be a permanent structure. This case is also not of much help and is distinguishable on facts. For the same reason, Anwar Ahmad v. IVth Additional District Judge, Saharanpur and others, 1981 ARC 654, is also distinguishable. Lastly, reference was made to the Apex Court Judgment in Harish Chandra and another vs. Mohd. Ismail and others, 1990(2) ARC 357, in this case a piece of ground over which there is a tin shed was let out. The Apex Court has remanded the matter to find out whether the said construction was put up by the landlord or tenant first. There is no discussion on the issue presently involved in the case on hand and is therefore, not of much assistance. '' Insofar as his second submission is concerned, he has placed reliance on the decision of the apex court in the case of Shri Janki Devi Bhagat Ram Trust v. Ram Swarup Jain reported in AIR 1995 Supreme Court 2482.
The sum and substance of the argument of Sri Sharma is, firstly, that the land and tin shed in question was covered under the provisions of U.P.Act No.13 of 1972 and his second submission is that the notice of six months was invalid in view of the second part of Section 106(1) of the Transfer of Property Act, 1882. He has emphasised that the lease was a month to month lease.
Having considered the submissions of learned counsel for the defendant-appellant and perused the impugned order, it is clear that the trial court was of the view that the tin shed and the land in question would be covered under the definition of appurtenant land and building. Such a view of the trial court has been upset by the first appellate court and it was held that the land in question was let out for running a saw mill which is a manufacturing process. The lease deed has been filed as Annexure-3 to the affidavit supporting the Stay Application. A perusal of the lease deed indicates that the purpose of letting out the land was for running a saw mill. The period stipulated therein was four years. The condition was that rent shall be payable month to month.
So far as the submission of Sri Sharma that the land in question is appurtenant to the building and the tin shed is an accommodation is concerned, it is not denied that the plaintiff-respondent is the owner of the premises in question. It is also not denied that the defendant-appellant was leased out the premises in question for the purpose of running a saw mill wherein a tin shed was erected. In the conditions of the lease deed it was provided that a tin shed for the purposes of running the saw mill can be erected by the defendant-appellant. However, it appears that in paragraph 1 of the plaint it has been stated by the plaintiff-respondent that the tin shed and the land was let out. Such an averment does not, in any manner, negate the stipulation in the lease deed that the defendant-appellant could erect the tin shed for running a saw mill.
A perusal of the lease deed would, therefore, be necessary. It stipulates that the land would be let out for a period of four years on monthly rent. The lessee could vacate the land or the parties could, by mutual consent, enter into a lease for further period. In the event the lessee vacates the land he was to remove all his effects therefrom. The lease was entered into only for the purpose of running the saw mill. The lease permitted the defendant-appellant to raise a tin shed for running the saw mill, therefore, the dominant purpose was to let out the land on lease for running the saw mill. The dominant purpose of the lease was not to let out a tin shed. In case, there was a tin shed already existing and was let out then it would have found mention in the lease deed. On the contrary the lease deed in condition no.2 provides as quoted hereunder:-
"2. izFke i{k ;fn pkgs rks [kkyh LFkku ij mij NIij o Vhu viuh t#jr ds fygkt ls vius [kPkZs ls Myok;saA ''"
It is thus clear that the defendant-appellant could erect a tin shed for his necessity in running the saw mill. There was no tin shed that was let out by the plaintiff-respondent. The averments in paragraph 1 of the plaint do not indicate a contrary intention and it refers to the terms and conditions incorporated in the registered agreement dated 23.03.1979. The relationship of the parties are governed by the registered agreement hence only that agreement can be looked into to determine as to what was let out. It was definitely only the land. The tin shed was raised subsequent to the start of the lease period and it was made by the defendant-appellant. The tin shed so erected for running the saw mill, therefore, cannot be held to be accommodation or a building for the purposes of U.P. Act No.13 of 1972.
It is also not disputed that no part of the neighbouring building is in the tenancy or lease of the defendant-appellant. Consequently the situation is that the land in question has been let out to the defendant-appellant for the purposes of running a saw mill. The provisions of Section 3 of U.P.Act No.13 of 1972 refer to a 'tenant' in relation to a building either for residential purpose or for non-residential purpose. It is 'tenant' which has been defined therein and the building includes any land including any garden, garages and out-houses appurtenant to such building. When the tenancy or lease was not of the building, the defendant-appellant cannot claim the benefit of Section 3 of U.P.Act No.13 of 1972 inasmuch as he was not a tenant of any building and, therefore, the land in question could not be brought within the ambit of appurtenant land to a 'building' of which the defendant-appellant was admittedly not a tenant.
Sri Pankaj Agarwal, learned counsel for the plaintiff-respondent has cited a decision of Supreme Court in the case of Koti Sarroj Anamma & Another Versus Jonnalagada Malleswara Rao reported in JT 1995(3) SC 329 and has referred to paragraphs 9 and 10 thereof. Paragraphs 9 and 10 are quoted below:-
"9. Looking to this evidence, it is clear that the shed, which has a zinc sheet roof, was erected only to protect the Saw mill machinery. What was leased out to the respondent was substantially the Saw mill machinery for the purpose of carrying on timber/Saw mill business. The shed was merely erected to shelter the machinery. The dominant purpose of the lease was to lease out the Saw mill machinery. In order that the lease should be covered by the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960, the lease should be of a building as defined in Section 2 (iii). It should, therefore, be lease of any house or a hut or a part of a house or a hut let for residential or non-residential purposes. It would include gardens, grounds, garages and out-houses appurtenant to such a house or a hut. In the present case, however, the lease is not of any house or a hut or part of a house or a hut. The lease is of Saw mill machinery which is covered by a zinc sheet shed. The dominant purpose of the lease is to lease out the machinery. The shed is only an adjunct. It is also pointed out that a covering over the machinery in the shape of a structure consisting of zinc sheets supported on poles can hardly be called a house or even a hut. In any case, looking to the dominant purpose of the lease, the two courts below have rightly come to the conclusion that the lease is not covered by the provisions of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960.
10. The respondent relied upon a decision of a Full Bench of the Andhra Pradesh High Court in the case of Mohammad Jaffar Ali v. S. Rajeswara Rao (1971) 1 Andhra Pradesh Weekly Reports 194). In that case, there was a lease of the cinema theatre. The Court held that the lease was essentially a demise of the building with accessories like furniture and machinery, the dominant purpose of the demise was to lease the cinema theatre building and hence, the provisions of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 apply to such a lease. In the present case, the dominant purpose is clearly to lease out the Saw mill machinery. A zinc sheet shed which has been erected merely to cover the machinery cannot be a pre-dominant reason for the lease. The High Court, therefore, was not right in coming to the conclusion that the lease was governed by the provisions of Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960."
From the aforesaid decision, it is quite clear that it has to be lease of a house or a hut or a part of a house or part of a hut let out for residential or non-residential purpose. If there is such a lease of a building then it will include appurtenant land, garden, garage and out-houses. But, if there is no lease of any house or a hut or a part of a house or part of a hut then the land which has been leased out would not be appurtenant land but it would be simply a land leased out. The submission made by Sri Sharma is, therefore, mis-conceived and cannot be accepted.
Consequently, insofar as the present lease is concerned, the provisions of first part of Section 106(1) of Transfer of Property Act would be clearly applicable even in the absence of a contract and in view of the registered lease dated 23.03.1979. Sub clause (1) of Section 106 is quoted below:-
"106. Duration of certain leases in absence of written contract or local usage.-
(1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice."
The aforesaid provision contemplates of two situations of a deemed lease. The first for agricultural or manufacturing purpose would be deemed to be a lease from year to year and terminable by six months' notice. The second part is that a lease of immovable property for any other purpose would be deemed to be a lease from month to month terminable by 15 days' notice.
In the present case, the lease deed is available on record. It contemplates a period of four years. It is not a case of absence of a contract. The relevant portion as contained in the recital part of the lease-deed and condition no.8 of the testatum component of the lease are quoted hereunder:-
"ge fd ljnkj lqjthr flag vkRet ljnkj txr flag fuoklh 'kkg deky jksM 'kgj vyhx< izFke i{k o vkse izdk'k vkRet ykyk y[keh pUnz fuoklh eqgYyk 'kkg deky 'kgj vyhx< vyhx< f}rh; i{k gS tks fd ,d fdrk Hkwfe e; lk;cku Vhu lhek fuEufyf[kr fLFkr eqgYyk 'kkg deky 'kgj vyhx< ds Lokeh o vf/kdkjh f}rh; i{k gS vr% mi;qDr tk;nkn dks [email protected]& nks lkS :i;k ekgokj rkjh[k 1&8&79 ls okLrs pkj lky izFke i{k us f}rh; i{k ls fdjk;s ij yh gS ftlesa izFke i{k vkjk e'khu dk dkjksokj vkjk e'khu o fctyh izFke i{k vius [kpsZ ls yxkys ftls og [kkyh djrs le; m[kkM dj ys tkosxk A 8&mij fy[kh pkj lky dh eqnnr [kRe gksus ij izFke i{k foyk ghyk o gqTtr o >xMk fd;s cxSj mi;qDr LFkku dks ftl 'kDy esa fdjk;s ij fy;k gS mlh 'kDy esa [kkyh djds f}rh; i{k ds dCts esa ns nsxk vkSj izFke i{k dk dksbZ gd mijksDr LFkku ij ugh jgsxkA"
The first appellate Court has recorded finding of fact that the purpose of the lease was for setting up a saw mill and not for any other purpose. In paragraph 19 of the judgment it has been recorded that the lease is of open land and not of any permanent constructions which could, in any manner, be a building or an accommodation for any purpose. In a second appeal the evidence cannot be re-appreciated to record a finding of fact by substituting the view taken by the Court below. The Court has considered the lease deed and recorded its finding of fact. Such finding of fact cannot be held to be perverse in any manner.
The submission of Sri Sharma that this is a month to month lease is clearly mis-conceived and against the record. The lease was for four years on payment of monthly rent.
In the present case, admittedly the lease was given for running a saw mill over the land with a contemplation that tin shed could be erected. No part of the building was given on rent. When the lease was not month to month but it was for a period of four years, the notice of six months was a valid notice. It was a protected lease. The second part of section 106(1) of Transfer of Property Act was clearly not applicable in the facts and circumstances of the present case.
The findings given by the first appellate court cannot be said to suffer from any error of law. They are findings of fact based on evidence. No substantial question of law arises in this appeal. The appeal is accordingly dismissed.
No order is passed as to costs.
Dated:12.1.2011 PK/-