MEHROTRA, J. - (1.) THESE two cross-appeals arise out of a suit for the eviction filed by the landlord against his tenants after the determination of the latter's tenancy. The plaintiff also claimed a decree for the arrears of rent and for past, pendente lite and future damages for use and occupation. A certain amount was also claimed as Bhumi Bhawan Kar. The suit was decreed in full by the trial court but the lower appellate court, on appeal, dismissed the claim for the eviction of the tenant. In other respects the trial court's decree was maintained. Both the parties felt aggrieved with the judgment and decree of the lower appellate court and; have, therefore, come up in the instant two appeals which, as I stated above, are cross-appeals one filed by the landlord against the dismissal by the lower appellate court of his claim for the eviction of the tenants; the other filed by the tenants against the decree for damages passed against them by the trial court and affirmed by the lower appellate court.
(2.) THE facts, in brief, are these: The plaintiff landlord, hereinafter des­cribed as the landlord, let out to the defendants-tenants, hereinafter described as the tenants, a part of an Ahata by a registered lease deed dated 22nd June, 1962 at the rate of Rs. 125/- per month. According to the landlord what was let out was an open piece of land with a temporary tin shed standing thereon for the use of the tenants' Chowkidar and the same, it was alleged by the landlord, had been so constructed on the tenants' own request before the said lease deed was executed. It was further pleaded that after the execution of the lease deed, the tenants constructed a room without the landlord's permis­sion and, therefore, the latter filed suit no. 763 of 1963 which was compro­mised on 5-12-1963 and in that compromise the tenants were allowed to continue their tenancy on the conditions contained in the aforementioned lease deed dated 22-6-1962. One of the conditions in the said document was that the rent of the premises would be regularly paid by the tenants by the 7th day of the month following the month of which the rent fell due. The landlord alleged that the tenants were irregular in making payment of rent and thus rendered themselves liable for eviction. A notice dated 6th May, 1966 under section 106 of the Transfer of Property Act was also served on them determining their tenancy. However, the tenants did not vacate the tenanted portion and hence the suit in question had to be filed seeking their eviction and also claiming other reliefs such as recovery of arreas of rent, Bhumi Bhawan Kar and damages for use and occupation. By an amendment in the plaint para 5(a) was added wherein it was stated that during the pend­ency of the suit the period of five years fixed by the deed dated 22nd June, 1962 stood expired and the tenancy of the defendants stood determined by efflux of time. The tenants were, therefore, liable to be evicted on the said ground also. The plaintiff asserted in the plaint that the U. P. Act No. 3 of 1947 was not applicable inasmuch as what had been let out was open piece of land and not an accommodation. The two defendants, who were described by the plaintiff as joint tenants, contested the suit on various grounds. In the main, it was denied that the tenancy was merely of an open piece of land. It was claimed that the defen­dants were tenants of an accommodation and hence the tenancy was subject to the conditions contained in U. P. Act 3 of 1947 and the "suit was barred under section 3 of the said Act inasmuch as it had been filed without obtain­ing any permission from the District Magistrate. It was also denied that there was any default or irregularity in the payment of rent on the part of the tenants. No term of the lease or of the compromise between the parties was violated by the tenants. On the refusal of the landlord to accept the rent tendered to him on two occasions, the tenants were compelled to deposit rent under section 7-C of the U. P. Act No. 3 of 1947.
(3.) IN the additional written statement which was filed in reply to the subsequently added para 5(a) of the plaint, it was contended......that even though the lease period had expired during the pendency of the suit, the tenants were entitled to continue in possession as statutory tenants by virtue of the protection afforded to them by the U. P. Act No. 3 of 1947. The trial Court framed the following issues: 1. Whether the U. P. Act III of 1947 is not applicable to the property in suit ? 2. Whether the tenancy of the defendants has determined by efflux of time and are the defendants liable to ejectment ? 3. Whether the notice is valid ? 4. Whether the suit is not legally maintainable ? 5. Whether the defendants have committed breach of conditions of rent note as alleged in para 4 of the plaint ? 6. What rent is due ? 7. To what amount of rent, cum-mesne profits, B. B. K. and relief, if any, is the plaintiff entitled ? ;