- (1.) THESE are connected appeals and arise out of judgment passed by the Additional Civil Judge, Lucknow dated December 22, 1961. It is convenient to de cide all these appeals by a common judg ment. They arise from Regular Suits Nos. 449 of 1958, 450 of 1958, 451 of 1958, 507 of 1958, 567 of 1958 and 118 of 1959. Suit No. 449 of 1958 was filed by Sardar Khan, Suit No. 450 of 1958 by Munna Khan and Suit No. 451 of 1958 by Smt. Fahiman. Those three suits were filed against the Mu nicipal Board of Lucknow, as it then was and Regular Suits Nos. 567 of 1958, 507 of 1958 and 118 of 1959 were filed by the Muni cipal Board, Lucknow against Sardar Khan, Munna Khan, Smt. Fahiman and others. After the death of Smt Fahiman Babu Khan and others, her sons were substituted in her place. Suits Nos. 449, 450 and 451 related to different plots of land. Those suits were filed against the Municipal Board with the allegation that the plots had been let out to the plaintiffs of the suits by the Municipal Board on certain agreed rent Ac cording to the allegations of Suit No. 449 the agreed rent was Rs. 18/- per month. In Suit No. 450 the contention was that the rate of rent was Rs. 3/- per month and in Suit No. 451 the case was that the agreed rate of rent was Re. I/- per month. It was alleged that the Municipal Board had start ed making demands from the plaintiffs of the said suits of rent at double the contrac tual rate. The plaintiffs of those suits asked for reduction of rent under Section 5 (4) of the U. P. (Temporary) Control of Rent and Eviction Act and asked for declaration that the rate of rent was as claimed by the plain tiffs in the suits.
(2.) THE main defence of the Munici pal Board hi those cases was that the suits were bad for want of notices under Section 326 of the U. P. Municipalities Act. This glea of the Municipal Board was accepted oth by the trial and the lower appellate courts and the suits were dismissed giving rise to Second Civil Appeals Nos. 89 of 1962, 91 of 1962 and 94 of 1962. In the other set of suits which were filed by the Municipal Board (Regula) Suits Nos. 567 of 1958, 507 of 1958 and 118 of 1959) the Municipal Board claimed to have terminated the defendants' tenancy by serving upon them notices as required by Section 106 of the Transfer of Property Act and claimed a decree for ejectment as well for arrears of rent at the enhanced rates. Those suits were resisted by the defendants on the ground, mainly, that Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act applied to the case as a leased property was accommodation within the meaning of Section 2 of the said Act and a decree for ejectment could not be granted as the Municipal Board had failed to make out any conditions enjoined by Section 3. There was also denial of service of any notice under Section 106 of the Transfer of Property Act. So far as the present appeals are concerned we are not concerned with the other pleas which were taken for the defendants in those suits.
(3.) I take up first Second Civil Ap peals Nos. 90 of 1962, 92 of 1962 and 93 of 1962. The first submission of learned counsel for the appellants in these appeals is that the decree for ejectment could not be passed against them as the appellants were entitled to the benefit of Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act (hereinafter to be referred to as the Act). The basis for this argument a that the disputed property is 'accommoda tion' within the definition given in Section 2 of the Act This argument is entirely mis conceived. It is an admitted fact that all the three plots were taken on lease about 25 years ago by Dildar Khan, predecessor-in-interest of the appellants from the Munici pal Board, Lucknow. The Municipal Board, however, started treating Dildar Khan and his successors as mere licensees and not lessees. After taking possession of open place from the Municipal Board admittedly wood en stalls were put up on the spot by the lessees. The Municipal Board appears to have demolished these stalls about the year 1948 which action of the court was chal lenged on behalf of the appellants before the Civil Court asserting that the Municipal Board could not demolish then" stalls as they possessed leasehold rights and were not licensees. This contention was upheld by the Civil Court and they were held to be lessees of the Board and not licensees. Armed with a Civil Court decree the appellants appear to have reoccupied the plots and again put np wooden stalls on them. It is therefore dear that whatever stalls existed on the dis puted plots belonged to the appellants and not to the Municipal Board. It is equally clear that vacant plots were let out to the appellants by the Municipal Board and that plots with stalls already erected on them were not let out. Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act provides that no suit shall, without the permission of the District Magistrate, be filed in any Civil Court against a tenant for his eviction from any accommodation. Sec tion 2 defines 'accommodation as residen tial and non-residential accommodation in any building or part of a building. It is, therefore, plain that the word 'accommoda tion' used in Section 3 means and implies and has reference to a building or part of a building which may have been leased out by the landlord to a tenant. In the present case the fallacy in the argument of the learn ed counsel for the appellants is this that al though the stalls may be 'building' in the wide sense of the word it is not a building which was leased out to the appellants. On the other hand, it belongs to the tenants, That being so, it is not accommodation within the meaning of Section 2 and for this reason Section 3 of the Act did not applT to the case as was rightly found by lower appellate Court. I am in respectful agreement with the view which was taken on this point in the case of Mohd. Sami v. Shrimati Savitri Devi, 1957 All LJ 435. The following observations made there have releyance for the present discussion: "Admittedly here the property which was leased out was an open plot of land and there was no building on it. The defen dants' own case was that after taking that plot of land, the building was constructed and when it was let out to them it was not a building but a plot of land. In the circum-ftances, Control of Rent and Eviction Act will not apply to the present case." t, therefore, reject the argument that the appellants were entitled to the benefit of the provisions contained in the Act ;