Sanjay Misra - (1.) HEARD Sri Diwakar Rai Sharma, learned counsel for the defendant-appellant and Sri Pankaj Agarwal, learned counsel for the plaintiff- respondent.
(2.) THIS is a second appeal under Section 100 of the Code of Civil Procedure filed against the judgment and decree dated 29.9.2010 passed in Civil Appeal No. 65 of2005 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 alongwith 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.
(3.) 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 v. Mistri Udai, 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 and another 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 1 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 others, 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 v. 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 Trusts v. Ram Swarup Jain, AIR 1995 SC 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)ofthe Transfer of Property Act, 1882. He has emphasised that the lease was a month to month lease.;