MAHABIR PRASAD CHHATRI Vs. MADHO PRASAD TANDON

JUDGEMENT

(1.) This is a defendants' second appeal arising out of a suit filed by the plaintiff respondent Madho Prasad Tandon for ejectment of the appellants and arrears of rent in respect of a plot having boundary walls situate towards the road attached to Circular park, which is part of house No. 608, Attarsuiya Allahabad, and is a portion of plot No. 422, South Housing Scheme, Allahabad. The case of the plaintiff respondent was that the land in dispute was let out to the appellants jointly at Rs. 50/- per mensem as rent exclusive of electri city charges at the rate of Rs. 3/- per mensem in pursuance of an agreement entered into between the parties on 3rd May 1968. It was alleged that U. P. Act No. III of 1947 did not govern the property in dispute and as such the tenancy was terminated by a notice dated 8th August 1969 and since the appel lants did not vacate the premises hence the suit. In defence the appellants admitted that they are the tenants of the plaintiff respondent at the rate of Rs. 50/- per mensem. In the additional pleas, however, it was alleged that the accommodation in occupation of the appellants consists of one Kothri also along with the plot surrounded by on all sides by boundary walls. It was furt her alleged that the property was governed by U. P. Act No. Ill of 1947 and as such a decree for ejectment cannot be passed against the appellants unless one of the grounds set out in U. P. Act No. Ill of 1947 had been established. The trial Court came to the conclusion that the appellants had taken the land alone as a part of their tenancy and thereafter they had made constructions which consist of a kothri, tin shed and a charhai. Since these constructions were made after 1968 and not prior to 1951 as alleged U. P. Act No. Ill of 1947 did not apply. The notice for ejectment was held to be valid and as such the suit was decreed on 23rd August 1974. Against the judgment dated 23rd August 1974 an appeal was filed before the lower appellate Court dismissed the appeal on 6th November 1975. Aggrieved by the judgment dated 6th Novem ber 1975 the present second appeal has been filed in this Court. Learned counsel for the appellants has raised two contentions before me. His first contention is that the building as well as the land was let out and as such U. P. Act No. 13 of 1972, namely, U. P. Urban Buildings (Regulation on Letting, Rent and Eviction) Act, will apply and as such the decree for ejectment cannot be passed against the appellants. The second contention of the learned counsel is that the provisions of Sec. 29-A of U. P. Act No. 13 of 1972 applies to the present case and as such also no decree for ejectment can be passed against the applicants. I have heard learned counsel for the parties at length. U. P. Act No. 13 of 1972 came into force from 15th of July 1972. It applies to buildings. The word 'building' has been defined in Sec. 3 (1), which is as follows: "building', means a residential or non-residential roofed structure and includes- (i) any land (including any garden), garages and out-houses, appur tenant to such building; (ii) any furniture supplied by the landlord for use in such building; (iii) any fittings and fixtures affixed to such building for the more beneficial enjoyment thereof. " Section 20 of the Act provides that no suit shall be instituted for the evic tion of a tenant from a building not withstanding the determination of his tenancy by efflux of time or on the expiration of the notice to quit or in any other manner except on grounds mentioned in sub-clause (2) of the said section. In the instant case the agreement was entered into between the parties on 3rd May 1968, which is Ext. 4 on record. From this agreement it is clear that what was let out was only land and not building. In the agreement it has been specifically written that the appellants will carry on the milk business on the land in dispute for which purpose they had taken the land on lease. It has bean further specifically provided that in case the appellants require any tempo rary construction for the purposes of carrying on their milk business they could do so and in the event of eviction the said temporary constructions will belong to the landlord. Since only land was let out to the appellants the provisions of U. P. Act No. 13 of 1972 would not apply: The argument is, however, based on the assumption that on the land in dispute there is a kothri, tin shed and a charhai and these amount to building within the meaning of the Act. The lower appellate Court has recorded a finding that the constructions in dis pute cannot be held to be a building within the meaning of the Act. The word 'building' has been defined to mean a residential or a non- residential roofed structure. U. P. Act No. III of 1947 has used the word 'accommodation' but the present Act, which has repealed U. P. Act No. III of 1947, has now used the word 'building' meaning residential or non-residential roofed structure. This possibly cannot include temporary constructions. In the instant case ad mittedly the land which was let out is a big piece of land and in one corner of the said plot of land, which was let out for carrying on milk business, a kothri,-a tin shed and a charhai have been constructed for the purposes of keeping fodder etc. This in my opinion cannot amount to building. The word 'structure' used in Sec. 3 (1) of the Act is significant. The word 'structure' indicates that the construction should be in the nature of a permanent one, not merely e temporary construction made by piling bricks and putting a tin shed. In the instant case learned counsel for the appellant has placed specific reliance on the statement of P. W. 1, Madho Prasad Tandon, who is the plaintiff respondent, P. W. 1 has stated that the kothri which has been built is of pucca bricks. In my opinion this by itself alone cannot amount to a permanent cons truction. By piling bricks one over the other a temporary kothri can always be constructed and practically in every case when any building is constructed on any land, for the purposes of storing materials such kothri is always cons tructed by placing one brick over the other. Therefore, this statement by itself cannot amount to an admission on the part of the plaintiff respondent that it is a permanent structure as contemplated within the meaning of the word 'buil ding'. The view, therefore, in my opinion, taken by the lower appellate Courts is in accordance with law. Learned counsel for the appellant has placed reliance on Ram Dularey v, D. D. Jain, ( 1965 A. L. J. 722) In the case of Ram Dularey (Supra) this Court had an occasion to consider the scope of the word accommodation and it was held that it could include a Jhopri with a thatched roof. This decision is on its own facts. It does not apply to the present case where the question of applicability of U. P. Act No. 13 of 1972 is in question. In U. P. Act No. 13 of 1972, as I have al ready mentioned above, the word 'building' has been used and not 'accommoda tion'. The question whether the constructions would amount to building with in the meaning of the Act would depend upon the circumstances of each case. In the instant case the agreement clearly provides that land was let out to the appellants and further appellants were permitted to make temporary construc tions on the land for the purposes of carrying on the milk business. These temporary constructions, therefore, cannot be held to be a building so as to make U. P. Act No. 13 of 1972 applicable to the case. There is another aspect of the matter. Even if these constructions are taken to be a building within the meaning of U. P. Act 13 of 1972 then too admittedly the appellants did not make any application under Sec. 39 of the Act nor did they deposit the entire amount of rent and damages along with in terest and costs of the suit in order that they may take the benefit of Sec. 39 of the Act. Sec. 39 of the Act applies to a case where the old Act did not apply. The suit was admittedly pending when the Act came into force. Therefore, in case the appellants wanted to take the benefit of the provisions of this section they had to comply with the requirements mentioned therein. Sec. 39 provides that if a deposit has been made as mentioned therein no decree for eviction shall be passed except on any of the grounds mentioned in the proviso to sub section (1) or in clauses (b) to (g) of sub-section (2) of Sec. 20. Admittedly since no deposit has been made, therefore there is no bar for passing a decree for eviction and as such also the decree for ejectment by the lower appellate Court cannot be held to be erroneous in law. In regard to the second contention of the learned counsel, an application has been made in this Court with a prayer that this Court may be pleased to determine the enhanced rent of the land for the entire period and permit the appellants to deposit the same with costs. This application has been made on the ground that Sec. 29-A of U. P. Act No. 13 of 1972 applies to the said buil ding. Sec. 29-A of the Act applies to a case where only a land has been let out and where the tenant with the landlord's consent has erected any permanent structure and incurred expenses in execution thereof. In this application there is no averment at all that the appellants had made any permanent construc tions with the consent of the landlord after taking the land on lease. No such averment has even been made in the written statement. The material ingred ient, therefore, namely, the consent of the landlord is absent in the present case and as such Sec. 29-A of the Act does not, apply to the facts of the case at all and the application made under Sec. 29-A of the Act is accordingly rejected. This submission, therefore, made by the learned counsel for the first time in second appeal is wholly without substance as the factual basis on which the applicability of Sec. 29-A of the Act is dependent has neither been averred nor proved by the appellants. In the result, I do not find any force in this appeal. I accordingly dismiss it but in the circumstances of the case I direct the parties to bear their own costs of this appeal. .