Rehmatullah vs Mohd.Sharif & Anr.

A.P. Singh, J.—This second appeal has been filed by the plaintiffRehmatullah challenging the judgment and decree passed by Sri R.P. Verma, a Civil Judge, Aligarh (hereinafter referred to as ''the lower appellate court'') dated 25th April, 1988.

Plaintiffappellant filed suit seeking eviction of the defendantrespondents, namely, Mohd. Sharif and his brother from the property in suit, which was described by him as open piece of land.

It was stated in the plaint that the land in suit was an open piece of land which was let out to the defendantrespondents on monthly rent of Rs. 200. According to the appellant, the property in suit was not governed by the provisions of U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as ''the Act''), inasmuch as, only an open piece of land was let out on which, without the permission of the plaintiff, defendants raised construction of a khoka by putting tin shed. Hence he terminated the tenancy and filed suit for their eviction from the property in suit.

The defendants contested the suit on the ground that plaintiff had let out a shop which was already in existence on the land in suit, for running a tea stall. It was further stated that the rent of the shop, in dispute was only Rs. 30/ per month and not Rs. 200 as was claimed by the plaintiff. It was further alleged that the provisions of the Act were attracted and, therefore, the suit was not, at all, maintainable in Civil Court.

After considering evidence on record, in the light of the pleadings of the parties, trial court held that what was let out to the defendants was an open piece of land, and not a shop. Trial court also held that the rent of the land which was let out was Rs. 200 per month and that Mohd. Sharif was in default and had also constructed a shop on it, without obtaining permission ofthe plaintiffappellant. The suit of the plaintiff was accordingly decreed. Trial court also held that the suit was maintainable and the provisions of the Act were not attracted to the property in suit, including Section 29A thereof.

Feeling aggrieved by the judgment and decree of eviction passed by the trial court, defendants filed appeal under Section 96 of the Code of Civil Procedure. The lower appellate court, which decided procedure. The lower appellate court, which decided the appeal on examination of the case, in the light of the pleadings of the parties, found that the property in suit had earlier been let out to one Anwar, who was running a shop for manufacturing ''Balti'' (bucket)therein. Lower appellate court rejected the explanation given by the plaintiff that Anwar had removed the khoka at the time when he vacated the land in suit following termination of his tenancy, on the ground that removal of Khoka by Anwar had not been proved by the plaintiff by evidence. It was further found uat the property in suit had been duly assessed to house and water ax since the year 1975 and electricity connection had been given by the Electricity Department in the shop situate thereon since 1978. It was further found that the plaintiff belonged to the same city where the property in suit was situate and used to visit the shop in question every month for collecting rent from the defendants. In the light of evidence on the record, and the circumstances of the case, the lower appellate court came to the conclusion that what was let out to Mohd. Sharif by the plaintiff was a shop, and not a vacant piece of land, and, therefore, according to the lower appellate court, the provisions of the Act were fully attracted to the property in suit. Lower appellate court also found that the plaintiffs plea that Mohd. Sharif had raised construction on the land in suit about 15 to 20 days prior to the filing of the suit was wholly false. It was also found by the lowei appellate court that existence of a shop was also shown in the saledeed, which the plaintiff had obtained by way of acquisition of the property in suit. It was further found that the tenancy ofthe defendant No. 1 had been terminated, inasmuch as, defendants were cotenants where as notice had not not been served on Mohd. Sharif, defendant No. 1. On this basis it was concluded by the lower appellate court that plaintiff was wrong in saying that the construction in the land in suit was a new one. It was further held that since appellant sought eviction of the respondents from a building and not trom an open piece of land as such the suit was not maintainable in civil Court and was maintainable before Judge Small Causes Court. On the above conclusions, the suit was dismissed, as not maintainable and the judgment and decree passed by the trial court was set aside.

I have heard Sri M.K. Gupta for the plaintiffappellant and Sri Rajesh Tandon, for the defendantrespondents.

Sri Gupta contended that even if it was held that a small Khoka was already existing on the property in dispute, that by itself will not convert the property in suit as a shop or building and the property in suit will remain a vacant piece of land, whereas the khoka will be treated as a building appurtenant to the vacant land. In support of his contention, Sri Gupta has placed reliance on Khan Bahadur Aijaj Hussain v. Ram Kishore and another (Allahabad Rent Cases, 1979, page 18).

In Khan Bahadur''s case (supra), the facts were that an open piece of land for running the business of weigh bridge was let out with a small Kotha existing therein. This Court held that despite presence of the Kotha over the land in dispute, the tenancy as per the rentnote was in respect of open piece of land and not in respect of the Kotha. The conclusion to this effect was arrived at by this court in view of the rentnote and the purpose for which the land was let out. Weigh bridge is meant for weighing of loaded trucks for which existence of Kotha is of no relevance. It was in these circumstances that the court held that existence of Kotha in the light of the purpose for which the open piece of land was let out, was of no consequence; and despite existence of Kotha in the land, the property in suit could not be described as an accommodation so as to attract the provisions of the Act.

In view of the special facts of the case of Khan Bahadur (supra) on which reliance has been placed by the learned counsel for the appellant, the judgment in that case is of no avail to the appellant. Admittedly, the property in suit, in the present case, was let out to the defendants for running a tea stall. Tea stall could not be run on an open piece of land. It could be run only in an accommodation or building or Khoka. Therefore, the dominant purpose for which the tenancy was created in favour of the defendants being running of tea stall, which could be possible only if a shop was in existence. From evidence also it has been found that a shop was already there which had been earlier let out by the appellant to one Anwar for running business of manufacturing Balti. Therefore, it cannot be said that the Khoka or shop should be treated being appurtenant to the open land, which was let out to the defendants. The lower appellate court has also taken into consideration that the purpose for which the property in suit was let out, coufd not be achieved without existence of a shop, and therefore, in the light of the purpose and other material on record, the lower appellate court concluded that what was let out, was accommodation (building) and not an open piece of land. The first contention of the learned counsel for the appellant, therefore, has no merit, which is accordingly turned down.

It was next argued by Sri Gupta that a Khoka with wall made of wood and tin shed cannot be termed to be a building for the purpose of the Act, inasmuch as, such construction would be a temporary construction. In support of his contention, he has placed reliance on Mahabir Prasad Chhatri and another v. Madho Prasad Tandon, (1980) AWC 626.

The facts of the case of Mahabir Prasad (supra) were that there was a written rentnote wherein the tenancy related to an open piece of land and not in respect of any building or accommodation. The purpose of tenancy was for carrying out milk business for which no construction, obviously is required except for accommodating animals � for providing them fodder, storage of and storeroom for fodder. It was in these circumstances that this court held that what was let out to the tenant was not a building but it was an open piece of land. In the present case, there is no rent note to indicate that what was let out by the plaintiff, was an open piece of land, whereas from the plaintiff s own case, it is evident that the property in suit was let out to the defendants for running a tea stall, which could, as of necessity, requires existence of an accommodation or building, including a temporary building. What has to be seen is the dominant purpose of the tenancy and not the nature of the construction. Even if a temporary construction is let out, for residence or for enabling the tenant to carry out a business in it, which cannot be possible without there being a building, necessary presumption, until the contrary is proved, would be that what was let out was a building and not a vacant piece of land.

In the present case, as has already been noticed above, existence of a shop in the land in suit which was in the tenancy of Anwar, who was plaintiffs tenant prior to the induction of the defendantrespondents as tenant, has been fully established. Plaintiff having failed to prove that Anwar had taken away his Khpka when his tenancy was terminated, the inscapable presumption which would obviously arise is that what was let out to the defendants was a building and not an open piece of land specially in view of the purpose tor which it was let out.

In the light of above special circumstance of the present case, judgment in Mahabir Prasad (supra) on which reliance has been placed by the learned counsel for the appellant, will be of no avail.

Next argument of Sri Gupta was that the suit having been founded by the plaintiff on the ground of default in the payment of rent for a period of more than four months, the same was liable to be decreed even if the provisions of the Act were attracted, as the ground provided for eviction under Section 20 of the Act was clearly made out as per the finding recorded by the trial court, which had not been set aside by the lower appellate court.

The above argument of Sri Gupta is misconceived. The suit for eviction of a tenant from a building after termination of tenancy by serving notice under Section 106 of the Transfer of Property Act cannot be filed in Civil Court; it can be filed only in the court of Judge, Small Causes. Hence it was not at all necessary for the lower appellate court to have addressed itself on the merits of issue No. 4. Since the suit itself was not maintainable in the Civil Court, the lower appellate court was fully justified in setting aside the decree of the trial court and dismissing the suit without dwelling upon the correctness of the finding which was recorded by the trial court on issue No. 4. The finding on the issue would have been necessary if the suit was filed in the appropriate forum.

It was next contended by Sri Gupta that in view of the law laid down by this court in the case of Pt. Lila Dhar Pandey and another v. L. Ramji Dass and another, 1956 AWR. 543, as also by Privy Council in Harihar Banerjee and others v Ramshashi Roy and others, AIR 1918 P.C. 102, a notice, if addressed to both the cotenants but served on one of them will be deemed to be ufficient for the purpose of terminating the tenancy of both the cotenants.

18.1 do not want to make any comment on this argument of the learned counsel for the reason that the same may be required to be examined by the court, where the suit is tainable in the trial court and is maintainable only in the court of Judge, Small Cause.

Even if it is held that the notice was valid and amounted to termination of tenancy of both the cotenants, namely, defendant Nos. 1 and 2, still no relief can be granted to the appellant in this appeal until his contention that the tenancy was in respect of open piece of land is accepted.

In support of his aforesaid argument, Sri Gupta also placed reliance on Sunil Kumar Singh v. Special Judge, Jaunpur and others, 1994 (2) ARC 184 and H. C. Pandeyv. G.C. Paul, 1989 ARC26.]

However, for the reason indicated in the preceding paragraphs of this judgment, I leave this issue undecided.

It was lastly contended by Sri Gupta that it was not correct on the part of the lower appellate court to have dismissed the suit on the ground that it was not maintainable in the Civil Court. According to him every suit of any nature, whatsoever, is maintainable in regular civil court. The court of Judge, Small Causes has been conferred with the power to entertain suits of the nature, as a matter of preferential jurisdiction and not as a court of exclusive jurisdiction. According to Sri Gupta, until the defendantrespondent can show any prejudice, which may have been caused to him on account of the wrongful entertainment of the suit by the trial court, the suit could not be dismissed on the ground of want of jurisdiction by the regular civil court.

Sri Gupta also tried to draw help from the provisions of Section 21 of the Code of Civil Procedure to contend that no judgment should be set aside unless failure of justice is shown. This contention of Sri Gupta too, in my opinion, has no merit.

For considering the argument, which has been raised by learned counsel for the appellant, it will be necessary to notice relevant provisions of Provincial Small Cause Courts Act, 1887 (hereinafter referred to as the PSCC Act). Section 15 of the PSCC Act relates to the jurisdiction of the courts of Small Causes. It reads as follows:

"Cognizance of suits by Courts of Small Causes (1) A court of Small Causes shall not take cognizance of the suits specified in the Second Schedule as suits excepted from the cognizance of a court of Small Causes.

(2) Subject to the exceptions specified in that Schedule and to the provisions of any enactment for the time being in force, all suits of a civil nature of which the value does not exceed five hundred rupees shall be cognizable by a court of Small Causes.

(3) Subject as aforesaid, the State Government may, by order in writing, direct that all suits of a civil nature of which the value does not exceed one thousand rupees shall be cognizable by a court of Small Causes mentioned in the order."

A reading of this Section would show that clause (1) of Section 15 is in negative term. It prohibits the court of Small Causes from taking cognizance of the suits which are specified in the Second Schedule except those which are excepted from the cognizance of the Civil Court in the second schedule. Second Schedule of the PSCC Act provides various nature of suits, which will be cognizable by Civil Court and will not be cognizable by Small Causes Court.

Item 4 of the Second Schedule reads as follows:

"a suit for possession of immovable property or for the recovery of an interest in such property."

This item has been completely substituted by U.P. Civil Laws (Amendment) Act, 1972 (U.P. Act No. 37 of 1972). Substituted item 4 of the Second Schedule of PSCC Act reads as follows:

"(4) a suit for possession of immovable property or for the recovery of an interest in such property, but not including a suit by a lessor for the eviction of a lessee from a building after the determination of his lease, and for the recovery from him of compensation for the use and occupation of that building after such determination of lease.

Explanation For the purposes of this Article, the expression ''building'' means a residential or nonresidential roofed structure and includes any land (including any garden) garages and outhouses, appurtenant to such building and also includes any fittings and fixtures affixed to the building for the more beneficial enjoyment thereof."

The substituted item 4 of Second Schedule of UPSCC Act excepts the suits which are filed for possessionotimmovable property or for the recovery of interest in such property from the cognizance of the Small Causes Court. It, however, reserves suits which are filed by lessor for the eviction of a lessee from a building after the determination of his lease and for the recovery from him of compensation for the use and occupation of that building after such determination of lease, to be tried exclusively by the Small Causes Court.

The explanation appended to the item 4 clarifies the word ''building'' which includes residential and nonresidential building or non residential roofed structure including land, garden garages and outhouses appurtenant to such building, including fittings and fixtures affixed to that building for the more beneficial enoyment thereof.

Thus, from the above provisions, if read together, it is clearly made out that it is the Small Causes Court, which has exclusive jurisdiction to try the suits which are filed by lessor for the eviction of lessee from a building after the determination of his lease and for the recovery from him of compensation for the use and occupation of building after such determination of lease.

In the present case, the suit which was filed by the appellant, as per the finding of the lower appellate court, was suit for eviction of the defendant, who was tenant, by the appellant, who was landlord of the building after termination of tenancy by serving notice under Section 106 of the Transfer of Property Act and for recovery of rent which was lying unpaid. The suit was thus maintainable in the Small Causes Court and not in regular Civil Court.

Thus, from the words used in Sections 15 read with item 4 of the Second Schedule, as amended by U.P. Act No. 37 of 1972, it is absolutely clear that the suit, as filed by the plaintiff appellant, was cognizable by Court of Small Causes and not by ordinary Civil Court.

In this respect it will also be useful to examine the argument of the learned counsel in the light of Section 9 of the U.P. Civil Laws Amendment Act, 1972. Section 9 provides for the transfer of pending suits from regular civil Court to the court of Small Causes, which are become maintainable by virtue of the amendment brought about by U.P. Act. No. 37 of 1972. Section 9 of the Amendment Act, read with Section 15 of U.P. PSC Act and item 4 of the Second Schedule clearly make out a case against the appellant which, if read together, clearly demonstrates that the cognizance of suit, which was filed by the appellant could not be taken by regular Civil Court but by Small Causes Court. It is, therefore, not correct for the learned counsel to contend that the Small Causes Court has been given preferential jurisdiction and not original jurisdiction. The contention is wholly misconceived which is accordingly turned down.

Reliance has been placed by the learned counsel for the appellant on Lala Hari Shyam v. Mangal Prasad, (1983) ACJ 177 and Smt. Kamla Devi Budhia and others v. Hem Prabha Ganguli and others, AIR 1989 SC1602, which is misplaced. The facts of the case cited by Sri Gupta are distinguishable from the facts of the present case and they are not applicable to the facts and circumstances of the case, in hand. This is more so, because of the special provisions of PSCC Act including Section 9 of the Act No. 37 of 1972. The contention of the learned counsel for the appellant is accordingly rejected.

So for as the argument regarding applicability of Section 21 of the Code of Civil Procedure is concerned, that argument too has no merit. Provisions of Section 21 of the Code of Civil Procedure are of no avail to the appellant. Section 21 is attracted in case where a technical plea of jurisdiction is raised regarding place of sueing and pecuniary jurisdiction. But where there is complete want of jurisdiction in a court, which has decreed the suit which was not cognizable by it the provisions of Section 21 of the Code of Civil Procedure would not be attracted specially when the objection in this regard had been duly raised by the defendantrespondent at the very initial stage but the trial court assumed jurisdiction by wrongfully deciding that the subjectmatter of the tenancy was an open piece of land and not a building. In the light of the view that the plaintiff appellant''s suit was not maintainable in the court of civil judge as the subjectmatter of suit was building and it was maintainable in the court of Judge Small Causes as per the provisions of the PSCC Act, the trial court had no jurisdiction to entertain the suit, the lower appellate court, therefore, was fully justified in dismissing the suit being not maintainable.

No other point was pressed by the learned counsel for the appellant.

36.1 find no merit in this appeal, which is accordingly dismissed, with costs.