RAM DULAREY Vs. D D JAIN AND OTHERS
LAWS(ALL)-1965-1-40
HIGH COURT OF ALLAHABAD
Decided on January 15,1965

RAM DULAREY Appellant
VERSUS
D D Jain And Others Respondents


Referred Judgements :-

<RC>LAWSUIT(ALL) 1965 0 257;ALLLJ 1965 0 722;</RC> HIGH COURT OF ALLAHABAD <JGN>S. S. DHAVAN</JGN> RAM DULAREY D D JAIN AND OTHERS <AT>SECOND APPEAL 3515 OF 1962</AT> 15.01.1965 <SUBJECT>CIVIL,TENANCY</SUBJECT><SI> CODE OF CIVIL PROCEDURE,1908 OR 10R 2;UTTAR PRADESH (TEMPORARY) CONTROL OF RENT AND EVICTION ACT,1947 SEC 2(A);UTTAR PRADESH (TEMPORARY) CONTROL OF RENT AND EVICTION ACT,1947 SEC 3(1);UTTAR PRADESH (TEMPORARY) CONTROL OF RENT AND EVICTION ACT,1947 SEC 3; <ACT>CODE OF CIVIL PROCEDURE,1908</ACT> <S>OR.10R.2</S><ACT>UTTAR PRADESH (TEMPORARY) CONTROL OF RENT AND EVICTION ACT,1947</ACT> <S>S.2(A)</S><ACT>UTTAR PRADESH (TEMPORARY) CONTROL OF RENT AND EVICTION ACT,1947</ACT> <S>S.3(1)</S><ACT>UTTAR PRADESH (TEMPORARY) CONTROL OF RENT AND EVICTION ACT [REFERRED TO]
MAWASI RATA V. SHEIKH KANNOO [REFERRED]
GUNGA NARAIN GUPTA VS. TILUCKRAM CHOWDHRY [REFERRED]



Cited Judgements :-

U.P. SUNNI CENTRAL BOARD OF WAQF VS. A.D.J. COURT NO. 3, MUZAFFAR NAGAR AND ORS. [LAWS(ALL)-2015-8-72] [REFERRED TO]
SHAMSHUDDIN VS. STATE OF U P [LAWS(ALL)-2012-1-103] [REFERRED TO]
U P SUNNI CENTRAL BOARD OF WAQF LUCKNOW VS. TOWN AREA COMMITTEE SAHAPUR [LAWS(ALL)-2009-2-60] [RELIED ON]
PRAKASH TIWARI VS. MASJID TAQIA DALMIR SHAH AND ANOTHER [LAWS(ALL)-2018-10-119] [REFERRED TO]


JUDGEMENT

- (1.)This is a tenant's second appeal from a decision of the Second, Addl. Civil Judge of Meerut reversing that of the City Munsif, Meerut ana decreeing the landlord's suit for his ejectment. D.D. Jain and six others are the trustees of the Harbans Charitable Trust which is the owner of the property in dispute. One of the matters in controversy is whether this property is a piece of land or an accommodation as defined in Section 2 (a) of the UP Control of Rent and Eviction Act. The Plaintiff Respondents described it in the plaint as a plot of land and alleged that it was let out to the Defendant Appellant Ram Dalarey by the late Harbans Lal on Rs 6/-/- per month, the tenancy being from month to month, that the trust needed the land for its own use and terminated the tenancy by a notice dated 31.7.1959; that the Defendant had not vacated the land; hence the suit for ejectment. The Plaintiffs contended that as the leased property was a vacant piece of land it was not subject to the provisions of the Control of Rent and Eviction Act. They asked for the ejectment of the Defendant and recovery of Rs. 84.60 of which Rs 27/ were claimed as rent and Rs. 57.00 rest as compensation for use and occupation. The Defendant-Appellant resisted the suit and denied that the property leased to him was a piece of land. He alleged that there was a hut on the disputed land from the very beginning and, therefore, the property was an accommodation as defined in the Control of Rent and Eviction Act. He pleaded that the suit was barred by S. 3 of the Act. On the day of the hearing the trial court examined the Defendant Under Order X, Rule 2 Code of Civil Procedure and recorded his statement which in view of the arguments advanced before me in this appeal, must be quoted verbatim: "I took the land from Sri Harbans Lai 20 years ago and built the shops of pucca bricks. There was only a Jhopri on the land when I took the land from him and the rate of rent was Rs. 2/-/-per month. Now the rate of rent is Rs. 6/- p m. I was asked by him to remove the Jhopri which was at that time in a falling down condition and to have my own constructions and then I built accordingly. Harbans Lal died about 6 or 7 years ago. After his death I paid the rent to his son and then to his Munshi Ishwar Sahai and now I pay the rent to Sri R.S. Jain Plaintiff No. 3. The constructions that I built on the land in suit were erected with the permission of Harbans Lal at my own expense."
(2.)Both sides gave evidence which was entirely oral. One of the trustees, Gopi Nath appeared as a witness and tried to corroborate the version in the plaint, but admitted in cross examination that he was not present when the agreement of tenancy was made between the late Harbans Lal and the Defendant and could not say whether the hut was there at that time. No other witness appeared for the plain tiffs. The Defendant Ram Dularey also appeared and stated that he was admitted to the tenancy by Harbans Lal on a rent of Rs. 2/ per month, and at that time the hut had four walls 7-8 feet high and a thatched roof. He further deposed that he rented the property for setting up a shop, and that alter 2-3 years. Harbans Lal replaced the thatched roof with a pucca one. He further stated that Harbans Lal paid the costs and increased the rent to Rs. 6/- per month. He also produced another witness Sant Prasad who supported the Defendant's allegation that there was a hut with a thatched roof standing on the land which was sub sequently converted into a pucca one.
(3.)The trial court believed the Defendant's version that the land contained a hut at the time of the creation of the tenancy and, 'herefore, it came within the definition of an accommodtion Under Section 2 (a) of the Act. Accordingly it held that the suit was barred by S. 3(1) of the Act and dismissed it. On appeal the learned Civil Judge disagreed with the trial court and held that the land was not an accommodation under the Act but a vacant piece of land. He observed that the trial court in believing the Defendant's testimony had ignored the effect of the Defendant's own admission in his statement Under Order X, Rule 2 Code of Civil Procedure. Holding that the suit was not barred Under Section 3, he allowed the appeal and ordered the ejectment of the Defendant who has come to this Court in second appeal.
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