- (1.) A. R. Singh, J. Heard Shri Manoj Gupta, learned counsel for the appellant and Shri N. K. Chaturvedi, learned counsel for the respondent.
(2.) PRESENT appeal has been filed by the plaintiff - landlord for setting aside the judgment of the lower appellate Court dated 12. 2. 88 passed in Civil Appeal No. 61 of 1986 whereby the decree passed by the trial Court in favour of the appellant in original suit No. 382 of 1974 was set aside. For the purpose of deciding this appeal, it is not necessary to bring detailed facts involved in this case. An open piece of land on station road, Firozabad was let out to the defendant - respondent on 1-2-1967 at the rate of Rs. 100/- per month-for the period of 7 years. In the rent-note executed in favour of defendant - respon dent he was allowed to make constructions during the continuance of tenancy for the purposes of his business and was given right to remove those constructions to which landlord was to have no objection. The suit was filed by the Om Prakash, plaintiff - appellant for eviction of the defendant - respondent from the land in dispute inter alia on the ground that he had damaged the property and also changed the shape of the land with the result its value is deteriorated and also that the term of the tenancy as provided in the rent-note had expired and despite that he had not vacated the land. Therefore, a notice was given to him for a period of six months on 23-7-75 which was served upon the tenant on 1 -7-83 but he did not remove his posses sion from the land. Hence, the suit was filed. In the written statement the defen dant-respondent inter alia raised the plea that the suit was not maintainable in view of the provision of Section 29-Aof the U. P. Act 13 of 1972 for the reason that the defendant-respondent had made con struction of permanent nature on his own expenses over the land in dispute with the permission of the land-lord and, therefore, the decree of his eviction from the land could not be passed. The trial Court rejected the plea of the defendant-respondent and held that the eviction of the defendant-respondent was not saved by the provisions of S. 29-A of U. P. Act 13 of 1972 for the reason that he was not able to prove that the construction which were allegedly raised on the land in dispute were ten years old so as to attract the protection of the provision against his eviction. The trial Court decreed the suit and ordered for the eviction of the defen dant-respondent from the land in suit. The defendant-respondent filed appeal under Section 96, C. P. C. which was heard and decided by Sri R. L. Shukhwar, Vth Addl. Civil Judge, Agra. At the time of hearing of the appeal before the Additional Civil Judge the plaintiff-appellant did not ap pear and the appeal was decided ex-parte. The learned Additional Civil Judge. Agra vide his judgment and decree dated 12-2-88 allowed the appeal and set aside the decree of trial court, he however allowed plaintiff-appellant to withdraw the amount which had already been deposited in the court by way of rent.
(3.) THE present appeal has been filed by the plaintiff-appellant on various grounds. However, Shri Manoj Gupta, learned counsel has confined his argu ments only on the questions relating to the protection of the provision of Section 29-A of U. P. Act 13 of 1972. On 3-11-88 this appeal was admitted on three questions of law. THE questions on which appeal was admitted are as follows: - (a) Whether the lower appellate court was right in reversing the decree of the trial court on the view that the defen dant- respondent was entitled to the benefit of Section 29-A of U. P. Act No. 13 of 1972? (b) Whether the lower appellate court was justified in reversing the decree of the trial court without adverting to the evidence on record and without setting aside the findings of the trial court special-ly on issue Nos. 7, 8, 9, and 10? (c) Whether the benefit of Section 29-A of U. P. Act No. 13 of 1972 could be given even in the absence of non-com pliance of the mandatory provisions there of? The questions 'a' and "b' relates to the power of the lower appellate court for setting aside the decree passed by the trial court on the view which is contrary to the view of the trial court regarding ap plicability of Section 29-A of U. P. Act No. 13 of 1972. These two questions are inter related arid therefore can be dealt with jointly.;