Ram Sarup and Ors. vs Harishankar Lal

R. B. Mehrotra, J.—The Present Second Appeal has been instituted by the defendant/appellant.

The facts necessary for decision of the appeal are as under : Harishanker Lal plaintiff filed suit No. 131/80 in the Court of Munsif Mathura against Ram Sarup etc. defendants.

In short the plaintiff alleged in the plaint, the disputed land described at the foot of the plaint had been taken on rent by the plaintiff at the rate of Rs. 35/ per month. The aforesaid land had been given on rent for the purpose of parking Vehicles etc. In those times, the aforesaid land was outside the purview of the U.P. Act No. 13 of 47 nor the said land was embraced by the provisions of Act No. 13/72. It was also alleged in the plaint that the defendant without the consent of the plaintiff raised permanent construction over the vacant land. On the above basis the plaintiff terminated the tenancy of the defendant in respect of the land in suit by serving notice under Section 106 of the Transfer of Property Act. The aforesaid suit was filed for dispossessing the defendant from the disputed property the other prayer was for a decree at the rate of Rs. 1107 per month for use arid occupation of the said land by the defendant.

The defendants contested the said suit. The trial court framed issues on the pleadings of the parties. Out of the said issues, the following issues are relevant for "adjudication in the context of the decision of the present appeal.

Issue No. 1. Whether the tenancy of the defendant is in respect of land?

Issue No. 4. Whether the defendant is entitled to benefit of Section 29A of U.P. Act No. 13/72. If so its effect?

Issue No. 6. Whether the tenancy of the defendant is permanent ?

With reference to issue No. 1 the trial Court as a result of evaluation of evidence recorded the finding of fact that the tenancy between the plaintiff and defendant had been settled merely with respect to vacant land.

With reference to issue No. 2 the trial court on evaluation of the evidence of the parties recorded the finding of fact that the defendant is not entitled to the benefit of Section 29A of the U.P. Act No. 13 of 72.

With reference to issue No. 6 the finding of fact recorded was that the defendant has failed to establish that the tenancy of the disputed land is permanent. Aggrieved by the aforesaid judgment the defendant filed appeal No. 44/81. The Second Additional District Judge, Mathura by his judgment dated 25.8.83 dismissed the appeal of defendant.

Consequently the defendant filed the present second appeal in this Court during the pendency of appeal Harishankar defendant died. The appellant filed application for bringing on record the legal representatives for respondent the same was allowed and the legal representatives brought on record.

This court on 24.2.84 admitted the appeal for hearing and framed the following substantial question of law for arising in the appeal:

(1) Whether the Proviso of Act No. 13/72 apply on the disputed property?

(2) Whether the lower courts have committed error in holding that till the rent was paid they were tenants and in that connection they committed error of law in analysing the allegations made by defendant regarding permanent tenancy?

(3) Whether the conclusion of the lower courts are the result of misreading of evidence?

The learned counsel for the parties have been heard. The learned counsel for the appellant mainly contended in support of the appeal that it is correct that when the land in suit was let out on rent, it was vacant land however, it is established from the evidence placed on record that defendant raised the construction over the land in suit in the knowledge of the plaintiff and the plaintiff never raised any objection on such raising of construction. Therefore on this footing the conclusion is inevitable that the said construction has been raised by implicit consent of the plaintiff and in not raising objection to the permanent construction it should be presumed that there was acquiescence on the part of the plaintiff.

The defendant has raised this objection before the lower appellate court. The lower appellate court while referring to the documentary evidence led by the parties recorded the finding that it is clear from a perusal of Ex. 2 that the defendant has admitted in his letter that the defendant protested against the raising of construction by sending a telegram and in the said letter the defendant has admitted that he raised the construction on his own responsibility according to his needs and has further admitted in that letter that the tenancy was agreed only in respect of the vacant land. In Ex. 1 the defendant had prayed that only the vacant land be given to him on rent. In Ex. 5, the defendant has admitted clearly that whatever constructions have been raised over the land in suit the same are owned by defendant and the plaintiff has no concern with the same. It is also alleged in this notice that the tenancy being for vacant land only could not be read as tenancy on the basis of the construction. The lower appellate court recorded the finding of fact that in the light of the documents referred above and the evidence of the plaintiff and defendant it is fully proved that the construction have been raised over the land in suit without the consent of plaintiff in the light of above conclusion it is clear that the provisions of Section 29A of Act No. 13/72 are not applicable in respect of the land. According to that provisions it is essential that if any landlord has let out vacant land to a tenant, and if the tenant has raised construction with the consent of landlord, and in the construction of the same the defendant has incurred expenditure, then after the completion of the permanent structure, the provisions of section 29A of Act No. 13/72 will be applicable to disputed property. In that even the dispossession can only be under the provisions of Act No. 13/72. The lower appellate court after the detailed discussion of the evidence of the parties recorded the finding that the constructions raised over the disputed site are not of permanent nature, and the said construction are only on such small portion of the land from which it can not be concluded that in reality the construction standing on the land in suit are with the consent of landlord. The lower appellate court has cited Raj Narain v. Sheoraj Saran, 1969 AWR 71 for the view of the Hon''ble High Court laying down that if on a small portion of the vacant land some construction has been made then in that circumstance the provision of Section 29A of Act No. 13 of 72 will not be attracted. On the strength of that ruling it reached the conclusion that having regard to the raising of construction on a small portion of the vacant land, also the provision of Section 29A of Act No. 13/72 will not be attracted to the entire disputed land.

The learned Counsel for the appellant has not been able to invite the attention of this Court to any evidence which may have been misread in drawing the said conclusion. Regarding permanent tenancy also the learned counsel for the appellant could not bring to the notice of the court any evident on the basis of which the conclusion could be drawn that the disputed land was given on rent to the defendant by the plaintiff by way of agreement. The above two points are devoid of force.

From the above discussion I am fully satisfied that there is no error of law in the findings of facts of the courts below based on the evaluation of the evidence of parties, nor any substantial question of law arises for consideration.

Accordingly the appeal is dismissed with cost.