This is a Second Appeal by the defendant. The plaintiff filed the suit, being Suit No. 576 of 1993, Deepak Kumar Nagar vs. Smt. Amana Begum, for eviction from the premises in dispute.
The case of the plaintiff, in the suit, was that that he let out Arazi No. 565, Hall No. 589, Vake Purwa Mahavir, Ganta Ghar Road, Meerut City, measuring Janib Purab (East) 17 ft., Janib Pashchim (West) 17 ft., Janib Uttar (North) 8 inch and Janib Dakshin (South) 8 inch, on a monthly rent of Rs.50/= to the defendant with the permission to raise a temporary structure over the said land. In respect thereof a registered agreement (Paper No. 59 Ka) has been executed on 21st September, 1977. The plaintiff has given a notice to the defendant for eviction of the premises in dispute on 7.5.1993, which has been served on 12.5.1993 and when the premises has not been vacated, the aforesaid suit was filed. The defendant contested the suit on the ground that by the unregistered rent deed (Paper No. 103 GA), dated 5.10.1977, Hata No. 565 was given to the defendant on rent at the rate of Rs. 160/= per month wherein in condition no.5, it has been provided that Mohd. Ishahak for his convenience and for carrying on the business can put a tin shed and on the cessation of the tenancy he would take away the same. On the said land, the defendant has raised a temporary tin shed. It was contended that by raising the permanent construction, he was carrying on the business of tailoring and it falls under the definition of building, as defined under the U.P. Act No. 13 of 1972, therefore, the suit for eviction was not maintainable.
The Trial court rejected the suit. The Trial court has held that Section 29-A of U.P. Act No. 13 of 1972 gives a protection from eviction to those tenants who were initially tenant of the land, but lateron raised permanent construction. Section 29-A (2) provides that on such land, which has been let out prior to the commencement of the Act or subsequent to the commencement of the Act, with the consent of the land-lord, if a permanent construction is raised, in view of Section 29-A(3), Section 20 of the Act will apply and the tenant shall be liable to pay the rent accordingly to the land-lord. In the present case, on the let out land, on the consent of the father of the plaintiff, permanent shops were constructed 20-23 years ago on a monthly rent of Rs. 50/=, which the defendant was regularly paying and on refusal to receive the rent, the same had been deposited in the court. The Trial court accordingly held that the provision of U.P. Act No. 13 of 1972 is applicable and Section 30 of the said Act provides for eviction of the tenant and hence it has been held that this Court has no jurisdiction to try the suit.
Being aggrieved by the order of the Trial court, the plaintiff filed the appeal, being Appeal No. 267 of 2000. The Appeal has been allowed in part. The order of the Trial court dated 25th August, 2000 has been set aside. The suit has been decreed in respect of eviction of the defendant from the land in dispute, but the suit has been dismissed in respect of other relief. The lower appellate court directed the defendant to vacate the premises and remove the constructions within two months and handover the possession to the plaintiff.
The lower appellate court held that as per the registered agreement dated 21st September, 1977, filed by the plaintiff and as per the unregistered rent deed, dated 5th October, 1972, filed by the defendant, the land has been let out to the defendant and not the constructed shop. As per the agreement, the defendant has only been allowed to raise temporary construction for carrying on the business and on the cessation of the tenancy, the same would be removed. It has further been held by the lower appellate court that in the written statement, the defendant has not claimed the benefit of Section 29-A of the Act and in respect thereof, no issue has been framed, therefore, the defendant was not entitled for the benefit of Section 29-A of the Act. It has also been held that under Section 29-A, the permanent construction should be made with the consent of the land-lord, but in the present case, the land-lord has not given any consent to raise permanent construction over the land. It has been further observed by the lower appellate court that the rent receipt, filed by the land-lord, bearing signature of Mohd. Janab, which has also been acknowledged by the defendant, reveals that the rent receipt was for the land at the rate of Rs.50/= per month.
In view of the above, the lower appellate court held that the appellant has let out the land and not the shop and the construction over the land was temporary not permanent, therefore, the provision of Section 29-A and other provisions of U.P. Act No. 13 of 1972 are not applicable.
Being aggrieved by the order of the lower appellate court, dated 17th May, 2005, the defendant filed the present Second Appeal.
Heard Sri Manish Goyal, learned counsel for the defendant-appellant and Sri Rajesh Gupta, learned counsel for the plaintiff-respondent.
Learned counsel for the defendant-appellant submitted that the construction raised over the land falls within the definition of building as defined under Section 3(i) of U.P. Act No. 13 of 1972. The construction was permanent in nature, which has been raised with the consent of the land-lord and, therefore, in view of Section 29-A of U.P. Act No. 13 of 1972, in case if any such construction was raised on the land before commencement or after commencement of the Act, Section 20 of the Act will apply and as such the Suit was not maintainable and the plaintiff had a remedy for eviction under the provisions of of U.P. Act No. 13 of 1972.
Learned counsel for the plaintiff-respondent submitted that the plaintiff-respondent has let out only land to the defendant-appellant as per the registered agreement. The land-lord has given the permission only to raise a temporary tin shed for carrying on the business under the agreement. No permission has been given to raise any permanent construction over the land. There is nothing on record to suggest that even subsequent to the agreement any consent has been given by the land-lord to raise the permanent construction. The term and condition of the registered agreement was that the tenant may raise the temporary tin shed and on the cessation of the tenancy, he would take away the goods/materials of such construction. The construction was only temporary and, therefore, the provision of Section 29-A of U.P. Act No. 13 of 1972 does not apply. He placed reliance on the decision of the learned Single Judge of this Court in the case of Chittar vs. Goverdhan and others, reported in ARC 1983 (2) 378. He submitted that in the written statement, the defendant-appellant has not sought any protection under Section 29-A of the Act and no issue has been framed in this regard, therefore, no plea can be raised seeking protection under Section 29-A of the Act subsequently during the course of the hearing.
I have considered rival submissions and perused the impugned orders as well as materials available on record.
There is no dispute that under the agreement, whether registered agreement, filed by the plaintiff-respondent or the unregistered agreement, filed by the defendant-appellant, only the land has been let out by the plaintiff-respondent to the defendant-appellant. There is also no dispute that under the agreement, the land-lord has only permitted the defendant to raise a temporary construction over the land for carrying on the business and the same would be removed on the cessation of the tenancy. Thus, it is clear that there was no consent by the plaintiff-landlord to the defendant-tenant to raise any permanent construction.
Section 29-A was introduced by the amending Act No. 28 of 1976. Section 29-A of of U.P. Act No. 13 of 1972 reads as follows:-
"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 expense 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.
(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 per cent 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 the 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 applied, shall be passed or executed except on one or more of the grounds mentioned in sub-section (2) of Section 20, provided 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 and 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, notwithstanding 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, notwithstanding 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]."
Sub-section (2) of Section 29-A of the Act provides that this Section applies only to land let out, either before or after commencement of this Section, where the tenant, with the landlord's consent has erected any permanent structure and incurred expenses in execution thereof with the landlord's consent. It is significant to note that it requires that the tenant has to show that the structure has been raised after obtaining permission of the landlord. If the consent was not there, the provision of sub-section (2) would not be attracted. Therefore, for application of Section 29-A, the essential conditions are, namely, (1) that the tenant has erected any permanent structure and incurred expenses in execution thereof and (2) such permanent construction should be raised on the consent of the landlord. If any of the condition lacks, then Section 29-A of the Act does not apply. In the present case, the defendant-appellant failed to establish that the landlord has given any consent to raise any permanent structure. The consent was only to raise a temporary tin shed structure. Therefore, the construction, alleged to have been raised by the defendant-appellant, was neither a permanent structure nor there was any consent of the landlord and even assuming that it was a permanent structure, it was without the consent of the landlord. Therefore, provision of Section 29-A does not apply.
Further, the defendant has not taken the shelter of Section 29-A in the written statement and no plea has been raised in this regard. Thereafter, the defendant cannot be permitted to raise such plea during the course of argument. To support the view, reliance is placed on the decision of this Court in the case of Chittar vs. Goverdhan and others (supra), wherein this Court has held that the Court cannot go into the question, which has not been pleaded. The Court held that the plea, not raised in the written statement, would not be allowed to be raised. Further, my view also finds support from the decisions in the case of Amar Singh v. Hoshiar Singh, reported in 1952 Alld. 14 and in the case of Siddik Mahomed Shah v. Mt. Saran & others, reported in AIR 1930 P.C. 57.
In view of the discussions made above, no substantial question of law arises. The Second Appeal has no substance and it is, accordingly, dismissed.
25.5.2012 bgs/-