GYASI RAM Vs. RAM CHANDRA SINGH

JUDGEMENT

(1.) THIS is the defendant' s second appeal arising out of a suit for the tenant' s eviction filed by the landlord after determining the former' s tenancy. The brief facts are these: The plaintiff claimed to be the owner of premises No. 3648-E situated at Sultanganj, Agra whose details are set out in the plaint. It was contended that in the said premises the defendant was the tenant of a thatched Kotha on behalf of the plaintiff. The tenancy also included Sahan on the eastern side of the Kotha. It was a monthly tenancy and the month of tenancy started from the 1st day of each English calendar month. The monthly rent was four annas per month. It was further alleged that the defendant effected material alterations and he encroached upon the plaintiff' s land on the eastern side by putting another shed and by opening another door towards the west of the said premises. By a notice dated 6th July, 1961, which was served on the defendant on 18th July, 1961, the plaintiff determined the latter' s tenancy and the defendant was called upon to pay the arrears of rent due from him and to vacate the premises after the period of notice. The defendant failed to comply with the notice. Hence the suit. The plaintiff claimed arrears of rent and damages along with the relief for the eviction of the defendant-appellant. Pendente lite and future damages were also claimed for illegal use and occupation.

(2.) THE defence was that the defendant had taken only open land and not any Kotha from the plaintiff. THE open land was taken for raising permanent constructions. THE plaintiff' s ownership of 3648-E was denied. It was stated " that some land lying in the Baghichi which was Sahrai was taken by the defendant for raising constructions of permanent nature long ago. THE defendant raised previously a kachcha residential house thereon which has now been replaced by a pucca house thereon in or about the year 1961. It is wrong to say that the defendant is a tenant of thatched kotha on behalf of the plaintiff."

(3.) IN the instant second appeal Shri Prakash Gupta, learned counsel for the appellant has made the following points: (1) The defendant was a permanent lessee of the open land and hence he was not liable to be evicted. Reliance was placed on the following cases: Abbaipada v. Ator Dome, (AIR 1923 Cal 294 (2)); Dwarkadas Marwari v. Parbati Dassi, (AIR 1942 Cal 486); Shahjahan Begam v. Munna, (AIR 1927 All 342); Kanhaiya Lal v. Abdullah, (AIR 1936 All 385); Faquirullah v. Wali Khan, (AIR 1926 All 714); Gur Din Sah v. Badri, (1936 Oudh WN 1003) : (AIR 1937 Oudh 165); Muhammad Ismail v. Jawahir Lal, (AIR 1935 All 492). (2) The defendant-appellant was entitled to the benefit of S. 29-A added by the new U. P. Act No. 13 of 1972 (U. P. Urban Buildings (Regulation of Letting Rent and Eviction) Act). (3) Replying to the learned counsel for the respondent' s argument that the defendant was liable to be evicted on the ground of his having denied the plaintiff' s title it was contended that the plaintiff could not avail of such a ground if the denial was contained in the written statement filed in the suit. IN other words, it was contended that the denial of title must precede the institution of the suit before the tenant can be evicted in the suit on the said ground. Reliance was placed on the following cases: Maharaja of Jaypure v. Rukmani, (AIR 1919 PC 1); Mukat Singh v. Misra Paras Ram, (AIR 1924 All 726); Hashmat Husain v. Saghir Ahmad, (AIR 1958 All 847); Ramayan Prasad v. Gulabo Kuer, (AIR 1967 Patna 35); Mohd. Amir v. Municipal Board, Sitapur, (AIR 1965 SC 1923); Sada Ram v. Gajjan Siama, (AIR 1970 Pun 511); Daya Ram v. Chiraunji Lal, (1977 3 All LR 97) : (AIR 1977 All 449).