GIRVAR LAL Vs. NEENA RAJDAN

JUDGEMENT

(1.) HEARD Mr. Neeraj Garg, Counsel for the defendant/appellant and Mr. Piyush Garg, Counsel for the plaintiffs/respondents.

(2.) THIS second appeal has been filed by the defendant/appellant. The plaintiffs/respondents had filed a suit for eviction in the year 1985 before the First Additional Civil Judge (Junior Division), Dehradun. The case of the plaintiffs/respondents was that an open portion of land was rented -out to the defendant/appellant way back in the year 1968. The land was not given for any residential or non -residential purpose but it was given to keep his animals on the said land. The case of the plaintiffs/respondents was that defendant/appellant on his own motion constructed a temporary tin -shed inspite of objection of the plaintiffs/respondents. The plaintiffs/respondents therefore were constrained to file a suit before the Judge, Small Causes Court for rent and eviction in which objections were raised by the defendant/appellant that the suit cannot be filed before the Judge, Small Causes Court and only a regular suit has to be filed inasmuch as the subject matter of the suit is an open land and not a building. Consequently, the suit was filed in the year 1985 before the Court of Civil Judge (Junior Division), Dehradun. In the said suit, the preliminary objection raised by the defendant/appellant was that the learned trial court has no jurisdiction to decide the said suit. The defendant/appellant before this Court admitted the ownership as well as the fact that the plaintiffs/respondents are the landlord. The defendant/appellant also admitted that he had been allowed to keep animals on the said land and it was given for non -residential purpose. The defendant/appellant states that with the consent of the plaintiffs/respondents he constructed the tin -shed in the year 1968 and since there was consent of the plaintiffs/respondents for this construction and also since it was a permanent structure he is protected by Section 29 -A of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972 (hereinafter referred to as the "Act"). Section 29 -A of the Act reads as under: - -

(3.) TRIAL court framed several issues, but one of the issues was as to whether the court has jurisdiction to entertain the said matter or not. The trial court came to the conclusion that nothing substantial has been placed by the defendant/appellant to this effect and this issue was decided against him, holding that the court had the jurisdiction. Another issue was with regard to applicability of Section 29 -A of the Act. The trial court while deciding the said issue has elaborated on the two aspects which are that in order to defend Section 29 -A of the Act the construction is made with the consent of the landlord and second the construction is of a permanent construction. On both these findings, the trial court came to the conclusion that since onus was entirely upon the defendant/appellant he has failed to show that there was an expressed or implied consent of the landlord/plaintiffs/respondents. Moreover, since it was admitted that the tenant/defendant/appellant himself has filed a suit for permanent injunction in the year 1976 which was decreed in the year 1978 where it was held that the defendant/appellant was the tenant of the plaintiffs/respondents and he can only be removed in accordance with law, but this has an important bearing in the present matter in which he showed himself as tenant and he himself filed a suit for permanent injunction in the year 1976 stating that there was implied or expressed consent of the landlord for the said construction. Admittedly a building is defined under Section 3(i) of the Act, which reads as under: - -