HRIDYA NARAIN SHUKLA Vs. RAM PYARI AND OTHERS

JUDGEMENT

(1.) This defendant's second appeal and plaintiff's cross-objection is directed against the judgment and decree of the Third Additional Civil Judge Kanpur.

(2.) Lala Anant Ram and Lala Kundan Lal were the owners of plot No. 118/489, Kaushalpuri, Kanpur. They leased out the plot in suit which is a portion of the Ahata to defendant respondent, Sardar Saran Singh on a monthly rent of Rs. 30. The plaintiffs in 1961, purchased the Ahata in suit. On 14th November, 1961 the defendant respondent transferred his flour mill that he had installed over the plot, together with his tenancy rights in favour of the defendant appellant Hriday Narain Shukla. An intimation of the transfer of the flour mill and tenancy rights was given to the plaintiff respondents. The plaintiff respondents, however, did not accept the defendant appellant as their tenant and served a notice determining the tenancy on the ground that the land in suit was not "accommodation" within the meaning of Section 2(a) of the U.P. Control of Rent and Eviction Act (hereinafter referred to as the Act). It was also stated that in case the land in suit was an accommodation then also the defendant appellant was liable to ejectment on the ground of default, i.e. the tenant failed to pay the arrears within one month from the date of the notice. The suit out of which this appeal arises was thereafter brought for recovery of Rs. 1,380/- as arrears of rent and for the ejectment of the defendants from the plot in suit demolition of constructions. Damages, pendente lite and future, at the rate of Rs. 50 per month were also claimed. The suit was contested by the defendants who contended that the land in suit was accommodation' within the meaning of Section 2(a) of the Act. The claim of arrears was also denied. The trial Court found that the tenant was, in arrears of rent from 1.10.1961 and that the lease was in respect of an open piece of land. It also found that the structures on the land in suit were constructed by defendant respondent Saran Singh and did not belong to the plaintiff landlord. The lease was therefore held not to be of an accommodation as defined in the Act and the determination of the tenancy by a simple notice was found good. The suit was accordingly decreed for ejectment and arrears of rent, pendente lite and future damages at the rate of Rs. 50 per month were also awarded. In appeal, the lower appellate Court confirmed the findings of the trial Court holding that the property in suit was not an 'accommodation' and concurred with the finding that the defendants were in arrears from 1.10.1961. It however held that the arrears for the period from 1.10.1961 to 30.8.1962 were time barred and accordingly reduced the decree for arrears of rent. Damages, pendente lite and future were reduced to Rs. 30/- per month. The defendant appellant has therefore come in appeal against the decree of ejectment passed against him whereas the plaintiffs have filed a cross-objection and have contended that no portion of the arrears claimed was barred by the law of limitation. The plaintiffs have further contended that the lower appellate Court committed an error of law in reducing the pendente lite and future damages.

(3.) The first question for determination is whether the property in suit was an accommodation within the meaning of Section 2(a) of the Act. A reading of Section 2(a) would show that "accommodation" under that section means residential and non-residential accommodation in any building or part of a building, but does not include any accommodation used as a factory or for an industrial purposes where the business carried on in or upon the building is also leased out to the lessee by the same transaction. It is not disputed before me that the land leased out was only a plot of land over which the defendant respondent has installed a floor mill and has raised some constructions. According to the lower appellate Court these were of a temporary character only. It is contended before me that the definition of accommodation as given in the Act includes any accommodation irrespective of the fact whether the constructions were made by the landlord or the tenant, and as soon as the constructions were made by the tenant the nature of the land after constructions became an accommodation within the Act and as such the defendant appellant could not be ejected without the permission of the Rent Control & Eviction Officer.