RAM SAHAI Vs. KHUDABAND KARIM JALLEY JALALHU

JUDGEMENT

(1.) THIS is a defendant-tenant's appeal from a decree of his evic tion from a piece of land. Admittedly, the land in dispute on which the defendant-tenant operated his oven, was below the parapet of a mosque and formed a part of the waqf property managed by the plain tiff Mutwalli. The defendant had taken a shop below the parapet of the mosque on rent from the Mutwalli of the mosque by an earlier executed rent note. On the south side of his shop there was an open piece of land in the form of a Kutcha platform 10" or 11" high, from the road level and extended upto the western parapet wall of the mosque. The defendant-tenant by a separate rent note took this Chabutra on rent for the purpose of keeping an oven. The defendant-tenant fell in arrears and de faulted in payment of rent of the land. The Mutwalli of the mosque then sent a com posite notice demanding arrears for four months, asking the defendant-tenant to pay the same within one month of the receipt of the notice and terminating the tenancy on the expiry of one month from the receipt thereof by the defendant. It is alleged that the defendant did not comply with the notice of demand and did not vacate the premises. The Mutwalli of the mosque then filed a suit for eviction of the defendant-tenant from the land in dispute, for recovery of arrears of rent, mesne profits and damages. Inter alia the defendant contested the suit on the pleas that the provisions of U. P. (Temporary) Control of Rent and Eviction Act, (Act No. Ill of 1947) were applicable and the plain tiff's suit for eviction was barred, he having complied with the notice of demand of rent by depositing the same under Section 7-C of the said Act on the Mutwalli's refusal to accept the same. It is not necessary in this judgment to refer to other pleas raised in defence.

(2.) THE two main questions that arose for determination at the trial were: (1) whether the defendant had taken on lease an 'accommodation' within the meaning of the U. P. Act III of 1947 and (2) whether the defendant had complied with the notice of demand of arrears of rent and the suit of the plaintiff for eviction of the defendant was barred. The learned Munsif found in favour of the defendant on both the crucial questions and dismissed the plaintiff's suit for eviction of the defendant.

(3.) I have heard the learned coun sel for the parties. Even if it be held that the finding of the lower appellate court on the question of compliance by the defendant tenant of the notice of demand can be suc cessfully assailed, that alone could not be destructive of the decree of eviction of the defendant unless the finding on the question whether an 'accommodation' within the meaning of U. P. Act III of 1947 was let out or only an open piece of land was let out, is not successfully assailed. Learned counsel for the defendant appellant laid much stress on the recital in the rent notes to the effect that the Mutawalli was respon sible for keeping in good repairs the walls of the mosque and the fixtures therein. He submitted that the said recitals clearly indicated that what was let out to the defendant was some sort of construction in the form of a building. I have perused the rent notes which are Exhibits 2 and 5 on record. It is clear from a reading of the rent notes that what was let out was an open piece of land describ ed as Chabutra below the mosque. The pur pose for which the defendant took the land was to operate an oven thereon. This open space of land was in the shape of a Kutcha raised platform. On the southern side of it was the wall of the shop of the defendant which he had taken on rent earlier through a separate rent note and on the western side of this land was the wall of the parapet of the mosque. It has come in evidence which has been believed that the defendant set up some kind of shelter over the land so taken supported from the wall of the mosque. A reference to the repairs of the walls of the mosque in the recitals of the rent note being the responsibility of the Mut walli who was the lessor appears to have been introduced as a matter of extra caution in the interest of the lessee that if any damage was done by the use and occupa tion of the piece of land by the lessee he would not be responsible for it but it would always be the lessor's responsibility; it can not be interpreted or construed from the said recitals that the wall of the parapet of the mosque was leased out to the defen dant. The oral testimony of the defendant that there was some kind of structure stand ing on the land from long before he took it on rent has been disbelieved. The evidence on behalf of the plaintiff that the structures on the land were raised by the defendant at his own cost and belonged to him has been believed. It has not been shown on behalf of the defendant- appellant that the learned Judge of the lower appellate court has mis read or misconstrued the oral evidence or omitted from consideration any other rele vant piece of evidence, oral or documentary.