AMANA BEGUM Vs. DEEPAK KUMAR NAGAR

JUDGEMENT

(1.) THIS is a Second Appeal by the defendant. The plaintiff filed the suit, being Suit No. 576 of 1993, Deepak Kumar Nagar v. Smt. Amana Begum, for eviction from the premises in dispute. The case of the plaintiff, in the suit, was that that he let out Arazi No. 565, Hall No. 589, Vake Purwa Mahavir, Ganta Ghar Road, Meerut City, measuring Janib Purab (East) 17 ft., Janib Pashchim (West) 17 ft., Janib Uttar (North) 8 inch and Janib Dakshin (South) 8 inch, on a monthly rent of Rs. 50/ - to the defendant with the permission to raise a temporary structure over the said land. In respect thereof a registered agreement (Paper No. 59 Ka) has been executed on 21st September, 1977. The plaintiff has given a notice to the defendant for eviction of the premises in dispute on 7.5.1993, which has been served on 12.5.1993 and when the premises has not been vacated, the aforesaid suit was filed. The defendant contested the suit on the ground that by the unregistered rent deed (Paper No. 103 GA), dated 5.10.1977, Hata No. 565 was given to the defendant on rent at the rate of Rs. 160/ - per month wherein in condition No. 5, it has been provided that Mohd. Ishahak for his convenience and for carrying on the business can put a tin shed and on the cessation of the tenancy he would take away the same. On the said land, the defendant has raised a temporary tin shed. It was contended that by raising the permanent construction, he was carrying on the business of tailoring and it falls under the definition of building, as defined under the U.P. Act No. 13 of 1972, therefore, the suit for eviction was not maintainable.

(2.) THE Trial court rejected the suit. The Trial court has held that Section 29 -A of U.P. Act No. 13 of 1972 gives a protection from eviction to those tenants who were initially tenant of the land, but lateron raised permanent construction. Section 29 -A (2) provides that on such land, which has been let out prior to the commencement of the Act or subsequent to the commencement of the Act, with the consent of the land -lord, if a permanent construction is raised, in view of Section 29 -A(3), Section 20 of the Act will apply and the tenant shall be liable to pay the rent accordingly to the land -lord. In the present case, on the let out land, on the consent of the father of the plaintiff, permanent shops were constructed 20 -23 years ago on a monthly rent of Rs. 50/ -, which the defendant was regularly paying and on refusal to receive the rent, the same had been deposited in the court. The Trial court accordingly held that the provision of U.P. Act No. 13 of 1972 is applicable and Section 30 of the said Act provides for eviction of the tenant and hence it has been held that this Court has no jurisdiction to try the suit.

(3.) THE lower appellate court held that as per the registered agreement dated 21st September, 1977, filed by the plaintiff and as per the unregistered rent deed, dated 5th October, 1972, filed by the defendant, the land has been let out to the defendant and not the constructed shop. As per the agreement, the defendant has only been allowed to raise temporary construction for carrying on the business and on the cessation of the tenancy, the same would be removed. It has further been held by the lower appellate court that in the written statement, the defendant has not claimed the benefit of Section 29 -A of the Act and in respect thereof, no issue has been framed, therefore, the defendant was not entitled for the benefit of Section 29 -A of the Act. It has also been held that under Section 29 -A, the permanent construction should be made with the consent of the landlord, but in the present case, the land -lord has not given any consent to raise permanent construction over the land. It has been further observed by the lower appellate court that the rent receipt, filed by the land -lord, bearing signature of Mohd. Janab, which has also been acknowledged by the defendant, reveals that the rent receipt was for the land at the rate of Rs. 50/ - per month.