- (1.) S. K. Phaujdar, J. The matter was heard in presence of the learned counsel for the parties on 24-2-1997. This second ap peal was preferred by the defendant-appellant who had lost in both the Courts below. The Suit No. 1604 of 1980 was filed by one Babu Lal Gupta, predecessor-in-interest of the respondents for eviction of the defen dant-appellant from a tenanted premises. It was the case of the plaintiff that the defen dant- appellant had been a tenant in the suit property (an open land) according to English calendar month. The rent for every month was payable with the expiry of the last date of the month. The defendant failed to pay the rent and a notice of termination of tenancy claiming arrears of rent and vacant possession of the premises was served on the defendant. But the demands were not paid heed to. Rather, inspite of receipt of the notice, the defendant-appel lant started raising an unauthorised tin shed in the open land in his tenancy. The plaintiff had sent a written objection to the defen dant against such unauthorised construc tion. The plaintiff asserted that the provisions of U. P. Act No. 13 of 1972 were not applicable to the present suit as the tenancy was in respect of a vacant land.
(2.) THE defendant contested the suit and filed a written statement. He raised a plea that the tenancy was not in respect a vacant land, rather it was for a building standing thereon. THE said building had a tiled roof and the plaintiff and his brother were the owners thereof. THE defendant claimed that he had taken the premises for running a dairy and it was a manufacturing and industrial purpose. It was also asserted that prior to induction of defendant as a tenant, another tenant was there in the suit premises, who was also running a dairy busi ness. THE defendant requested the land lords to repair the tiled roof but they were not ready to do so, rather they permitted the defendant to make the repairs himself. Only thereafter, the defendant removed the tiles and replaced it by a tin shed and above that a tiled roof was made. THE defendant had to incur expenses of Rs. 3,000/ -. THE construc tion made by the defendant came within the purview of "building and the suit of the plaintiff was covered by Section 29a of the U. P. Act No. 13 of 1972 and was not main tainable in its present frame. It was asserted that the plaintiff had not made the co-owner as a party to the proceeding and the suit was bad for non-joinder of necessary party. THE suit, according to the defendant, should have been filed before the Small Causes Court and the ordinary Civil Court had no jurisdiction to take up the matter. THE notice was also depicted as illegal as it was not served six months ahead of the proposed date of termination, as required under Sec tion 106 of Transfer of Property Act (in short the TP Act ). THE trial Court framed several issues touching the jurisdiction, na ture of tenancy, absence of parties, ap plicability of Section 29-A of U. P. Act No. 13 of 1972 and the notice under Section 106 of the T P. Act. The trial Court held that the defen dant was a tenant in respect of a vacant land and he rejected the plea of protection under Section 29-A of the Act No. 13 of 1972. He also held that the notice was proper and legal. It was found by the trial Court that the suit was not bad for absence of necessary party and the Court had the jurisdiction to take up the suit. The suit was accordingly decreed by the judgment dated 27-7-1982 by the IInd Addl. Munsif, Kanpur. The defen dant filed Civil Appeal No. 525 of 1982 wherein again the issues were taken up for a fresh discussion and questions were raised before the first appellate Court that the tenancy was in respect of a building and not for a vacant piece of land and other objec tions regarding jurisdiction, protection under Section 29-A and the validity of the notice were again pressed before the appel late Court. The contentions were rejected. In the Second Appeal, the learned counsel for the defendant-appellant again took up these objections. It was contended that the building over the suit property was existing for the last 25 years and the long user of the same would suggest implied con sent of the land-lord in the construction of the building. It was stated that the case squarely came within the purview of Section 29-A of the Act No. 13 of 1972 and the suit could not have been decreed unless any one of the grounds under Section 20 of this Act was present. Reference was made to the definition of the word 'building' in the aforesaid Act to say that it would include any roofed structure. As regards the notice, the learned counsel referred to Section 106 of the T. P. Act to say that, admittedly, the premises were taken for running a dairy which was either a manufacturing process or an agriculture process and, in any case, the tenancy would be deemed to be from year to year terminable by a notice of six months. He proposed to rely on municipal assessments to say that a building had been in existence on the suit property. The learned counsel for the respondents, however, sub mitted that Section 106 makes the presump tion of year to year lease for manufacturing or agriculture purposes only in the absence of any contract to the contrary. It was con tended that the plaint itself averred that the tenancy was a month to month one and this fact was clearly admitted in the written statement. Learned counsel for the respon dents proposed to conclude that this admis sion would indicate that the parties had agreed to create a month to month tenancy only and on the face of this agreement, no presumption of year to year tenancy would be made irrespective of the purpose of crea tion of the lease. In the course of his argu ment learned counsel for the appellant fur ther referred to Section 15 of the Provincial Small Causes Courts Act and Scheduled II to that Act, to say that where it was a suit for eviction of a tenant from a building only the Small Causes Court could have a jurisdic tion in the matter. In fact, this is really an extention of the objection taken under Sec tion 29-A of the Act No. 13 of 1972 as Section 15 of Provincial Small Causes Courts Act would not apply if the tenancy is for a vacant piece of land. It was further urged that the plaintiff had not examined himself and his son who had come up to depose was not present during the creation of the lease. According to the learned coun sel, it was also a circumstances which should have been considered by the Courts below to reject the contention of the plaintiff. Before other points are answered this last mentioned point may be disposed of at this stage itself. There is no law that requires that a party must examine himself. The law only requires that if he proposes to examine himself, he should do so prior to examining other witnesses. Moreover, the importance of examination of the plaintiff and the effect of the examination on the purpose of the lease would be seen, if at all the purpose would tilt the balance in favour of the defen dants in any manner. In answer to the sub mission that the constructions were made with the consent of the owner-land-lord, it was contended by the respondent that this was a question of fact and findings on this point was consistently given against the defendant-appellant by the two Courts below and it was not open to be agitated in this second appeal again.
(3.) SRI K. L. Grover relied on certain case-laws in support of his contention. He referred to me the judgment in the case of Ram Dulare v. D. P. Jain, as recorded by the Allahabad High Court and reported in 1965 ALJ at page 722. In this case, the Court explained what was the meaning of words accommodation and building as used in U. P. (Temporary) Control of Rent and Evic tion Act, 1947. It was held that even struc tures like thonpri with a thatched roof for shelter was an accommodation under this Act as a poor tenant could afford accom modation upto that standard only and he was not to be deprived of the protection of the provisions of the Act. The second case on which Sri Grover placed reliance stands reported in 1981 (1) RCC 452 (Anwar Ahmad v. IVthaddl. Dis trict Judge, Saharanpur ). It was also a matter under the U. P. Act No. 13 of 1972. In rela tion to Section 3 (1) of this Act even a Khok-ha, Le. a wooden roofed structure, was held to be a building for the purpose of this Act. This was a judgment recorded by Hon'ble N. D. Ojha, J. (as a Judge of the Allahabad High Court, as his lordship then was ). This judgment was closely allowed by another judgment reported in the same journal, same Volume, at page 454 (Nirmal Chand v. IInd Addl. District Judge, Etawah ). Here also His Lordship had held that a roofed struc ture with walls was a building for the pur pose of this Act. Another case law was quoted before me by Sri Grover on the point of protection under Section 29-A of the U. P. Act No. 13 of 1972. It is a judgment reported in 1985 (2) ARC 89 (Smt. Riazi Begum v. Adarsh Kumar John ). The Court explained in this case that Section 29-A can apply to tenancies where; (i) only the land had been let out to the tenant, (ii) the tenant had raised permanent structures over it, (iii) this was done with the land- lord's consent and (iv) the tenant had incurred expenses in raising such structures. It was observed that when these pre- conditions were satisfied, then neither a pending suit for eviction from such land can proceed nor any decree al ready obtained in such a case can be ex ecuted provided other conditions laid down in the sub-Section (6) of Section 29-A were satisfied. On this point, the argument of Sri Grover may be reiterated. He urged that the two conditions for protection under Section 29-A were present but were overlooked by the Courts below as, according to him, the tenant had definitely raised a permanent construction incurring expenses after it and that was done with the land- lord's consent. It was contended that the structures, having been there for 25 years, would only suggest implied consent of the landlord in their erection. To elaborate his arguments on the point of consent, the learned counsel placed further reliance on a decision of the Al lahabad High Court reported in 1984 (2) ARC 24. The Court in this case took up the question of consent as indicated in Section 14 of the Act and opined that this consent may not in all cases be express. It could be equally good and effective if consent could be inferred by necessary implication.;