Decided on December 19,2012

Girvar Lal Appellant
Neena Rajdan and Ors. Respondents


Sudhanshu Dhulia, J. - (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, 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 subsection (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. 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.
(3.) 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 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;;

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