- (1.) THIS is the defendant' s second appeal arising out of a suit for the tenant' s eviction filed by the landlord after determining the former' s tenancy. The brief facts are these: The plaintiff claimed to be the owner of premises No. 3648-E situated at Sultanganj, Agra whose details are set out in the plaint. It was contended that in the said premises the defendant was the tenant of a thatched Kotha on behalf of the plaintiff. The tenancy also included Sahan on the eastern side of the Kotha. It was a monthly tenancy and the month of tenancy started from the 1st day of each English calendar month. The monthly rent was four annas per month. It was further alleged that the defendant effected material alterations and he encroached upon the plaintiff' s land on the eastern side by putting another shed and by opening another door towards the west of the said premises. By a notice dated 6th July, 1961, which was served on the defendant on 18th July, 1961, the plaintiff determined the latter' s tenancy and the defendant was called upon to pay the arrears of rent due from him and to vacate the premises after the period of notice. The defendant failed to comply with the notice. Hence the suit. The plaintiff claimed arrears of rent and damages along with the relief for the eviction of the defendant-appellant. Pendente lite and future damages were also claimed for illegal use and occupation.
(2.) THE defence was that the defendant had taken only open land and not any Kotha from the plaintiff. THE open land was taken for raising permanent constructions. THE plaintiff' s ownership of 3648-E was denied. It was stated " that some land lying in the Baghichi which was Sahrai was taken by the defendant for raising constructions of permanent nature long ago. THE defendant raised previously a kachcha residential house thereon which has now been replaced by a pucca house thereon in or about the year 1961. It is wrong to say that the defendant is a tenant of thatched kotha on behalf of the plaintiff." In para 15 of the written statement the defendant stated that he paid only ground rent to the plaintiff but did not pay any rent in respect of the premises or kotha. The defendant denied that he made any material alteration or encroached upon any land of the plaintiff. In fact, the land was initially taken by him for the purpose of raising constructions of a permanent nature. Therefore, there was no question of making any alteration or doing the same with the consent or permission of the plaintiff. The defendant also claimed that he was a permanent licencee as provided under S. 60 of the Easements Act and the plaintiff was estopped from seeking the defendant' s ejectment. The benefit of U. P. Urban Areas Zamindari Abolition and Land Reforms Act was also sought to be taken. Certain other pleas were also taken which, however, it is not necessary to notice in the instant appeal. The trial court framed the necessary issues and tried the suit. It held that the plaintiff was the owner of the premises in question and that it was not only an open land but a kotha and chhapper standing thereon were also let out by the plaintiff to the defendant. The trial court also held that no land on rent was permanently given to the defendant nor was it given for raising constructions of a permanent nature. The relationship of landlord and tenant was held to be proved and it was held that the defendant converted the kachcha structures into pucca constructions and that this was done without the permission of the plaintiff. Certain other alterations were also held to have been made without the permission of the plaintiff. Accordingly, under S. 3 (1) (c) of U. P. Act No. 3 of 1947 (U. P. (Temporary) Control of Rent and Eviction) Act the defendant was liable to be evicted in the suit. The notice was held to be a valid notice and it was held to have been duly served on the defendant. The defence plea based on the U. P. Urban Areas Zamindari Abolition and Land Reforms Act was negatived. The defendant was also held to have been a defaulter as he failed to pay arrears of rent within one month of the notice of payment. The trial court, therefore, decreed the plaintiffs suit for the recovery of Rs. 9/- as arrears of rent and past mesne profits. Pendente lite and future mesne profits were also decreed. The relief of eviction was also granted to the plaintiff against the defendant. The defendant filed an appeal in the lower appellate court but the same was dismissed except for the modification that the defendant was declared entitled to remove the Malva of the constructions raised by him before delivery of possession of the property to the plaintiff. Unlike the trial court, however, the lower appellate court held that only land was given to the defendant on rent and not the accommodation as alleged by the plaintiff. The defence plea that a licence was granted in the defendant' s favour and that he was entitled to the benefit of Section 60 of the Easements Act was rejected. The relationship between the parties was held to be that of landlord and tenant and not that of licensor and licensee. It was also held that the constructions were raised by the defendant. It was held to be a case of monthly tenancy. The other defence pleas were also rejected.
(3.) IN the instant second appeal Shri Prakash Gupta, learned counsel for the appellant has made the following points: (1) The defendant was a permanent lessee of the open land and hence he was not liable to be evicted. Reliance was placed on the following cases: Abbaipada v. Ator Dome, (AIR 1923 Cal 294 (2)); Dwarkadas Marwari v. Parbati Dassi, (AIR 1942 Cal 486); Shahjahan Begam v. Munna, (AIR 1927 All 342); Kanhaiya Lal v. Abdullah, (AIR 1936 All 385); Faquirullah v. Wali Khan, (AIR 1926 All 714); Gur Din Sah v. Badri, (1936 Oudh WN 1003) : (AIR 1937 Oudh 165); Muhammad Ismail v. Jawahir Lal, (AIR 1935 All 492). (2) The defendant-appellant was entitled to the benefit of S. 29-A added by the new U. P. Act No. 13 of 1972 (U. P. Urban Buildings (Regulation of Letting Rent and Eviction) Act). (3) Replying to the learned counsel for the respondent' s argument that the defendant was liable to be evicted on the ground of his having denied the plaintiff' s title it was contended that the plaintiff could not avail of such a ground if the denial was contained in the written statement filed in the suit. IN other words, it was contended that the denial of title must precede the institution of the suit before the tenant can be evicted in the suit on the said ground. Reliance was placed on the following cases: Maharaja of Jaypure v. Rukmani, (AIR 1919 PC 1); Mukat Singh v. Misra Paras Ram, (AIR 1924 All 726); Hashmat Husain v. Saghir Ahmad, (AIR 1958 All 847); Ramayan Prasad v. Gulabo Kuer, (AIR 1967 Patna 35); Mohd. Amir v. Municipal Board, Sitapur, (AIR 1965 SC 1923); Sada Ram v. Gajjan Siama, (AIR 1970 Pun 511); Daya Ram v. Chiraunji Lal, (1977 3 All LR 97) : (AIR 1977 All 449). Shri B. P. Agarwal, learned counsel for the plaintiff-respondent, contended as follows: (1) The courts below have recorded clear finding of fact which cannot be questioned in a second appeal. It has been found by both the courts below that it was a case of monthly tenancy and not the case of a permanent tenancy. Moreover, it has been found that the constructions were not raised with the consent of the plaintiff. Learned counsel referred to S. 13 of the Indian Contract Act and S. 3 (1) (c) of the repealed U. P. Act III of 1947 and S. 20 (2) (c) of the new U. P. Act No. XIII of 1972. He contended that the defendant-appellant was not entitled to the benefit of S. 29-A of the aforesaid new Act No. 13 of 1972. (2) It is not necessary that the denial of title must precede the suit. A court can take notice of the denial of title in the suit itself and decree the plaintiff' s suit on the said ground. Counsel placed reliance on the following cases: Rattan Lal v. Vardesh Chander, (AIR 1976 SC 588); Hari Ram v. Raja Ram, (1975 All LJ 377); (1974 Ren CJ 303): (AIR 1974 Raj 163); (1973 Ren CJ 515 (J and K); Jai Narain Dass v. Zubeda Khatoon, (AIR 1972 All 494); Suhag Rani v. Sukhadev Singh, (AIR 1971 Pun 434); Sada Ram v. Gajjan Shiama, (AIR 1970 Punj and Har 511); Raghubar Singh v. Sm. Phoolmati, (AIR 1962 All 122); Bhagwan Das v. Surajmal, (AIR 1961 Madh Pra 237); Krishna Devi v. N. Balai Singh, (AIR 1960 Manipur 54); Fateh Chand v. Brij Bhushan Prakash, (AIR 1957 All 801); Ratneswar v. Mongoli Chutiani, (AIR 1951 Assam 70); G. Goculdas Tejpal v. Municipal Commissioner, (18 Bom 256) (sic) Reference was also made to 1962 All LJ (Summary of Cases) 44.;