V.Bhargava, J. - (1.) This special appeal has been filed by the defendants in a suit for ejectment, arrears of rent and damages brought against them by the plaintiff-respondents in respect of two shops, said to have been newly constructed sometime in the year 1957, so that the provisions of the U.P. Control of Rent and Eviction Act did not apply to these shops.
(2.) The case of the plaintiffs-respondents themselves was that the defendants-appellants were tenants of an old shop for a number of year and that tenancy included with the shop a certain piece of land appurtenant to it. The plaintiffs-respondents wanted to construct some new shops on the vacant land. An agreement was arrived at between the parties which was reduced into writing and was registered. That agreement is dated 9th April 1957. Under this agreement, the plaintiffs-respondents were to permitted to construct five shops on the vacant land. It was agreed that the defendants-appellants would continue to be tenants of the old shop and that they would also be tenants of two other newly constructed shops, and the possession of the two newly constructed shops would be delivered to the defendants-appellants by the plaintiffs-respondents as soon as those shops became ready. Further, the defendants-appellants were to pay rent at the old rate of Rs. 54/3/- per mensem including house-tax upto the date of being put into possession of the new shops, and with effect from the date on which they came into possession of the new shops the rent would be Rs. 64/3/-. The defendants-appellants were also made liable for payment of house-tax. The case of the plaintiffs-respondents was that, in respect of the new shops, the defendants-appellants did not make any payment of rent. In the agreement, the condition was that the tenancy would terminate on non-payment of rent for three months and since rent for more than three months was not paid the tenancy was terminated. Consequently, the plaintiffs-respondents sued for ejectment on the ground of forfeiture, for arrears of rent upto the date of termination of the tenancy, and for damages for subsequent period upto the date of the suit. This is the suit that was decreed by the trial court and the decree has been upheld by the first appellate court as well as by the learned Single Judge in second appeal. Consequently, the defendants-appellants have come up in this special appeal. There was with this suit another suit for ejectment of these very defendants-appellants from the old shop also. That suit was dismissed on the ground that the defendants-appellants were protected from ejectment because of the applicability of the U.P. Control of Rent and Eviction Act.
(3.) In the course of hearing of this appeal, learned counsel for the appellants first argued before us that we should hold that there was one single lease in respect of the old as well as the new shops in favour of the defendants-appellants created by the agreement dated 9th April 1957, so that this separate suit cannot be decreed at all. On the date when this agreement was executed admittedly the new shops did not exist. That agreement of 9th April, 1957, has, to be interpreted as containing a lease in respect of the old shop and an agreement to lease out the new shops when they came into existence. The term on which the new shops were to be leased out was also laid down in the agreement. The common case of the parties was that the rent of these new shops was to be Rs. 10/3/- per mensem. On these facts, the question arises as to what was the status of the defendants-appellants qua these two new shops when the defendants-appellants were put in possession of these shops in pursuance of the agreement after the construction of these shops had been completed.;