Saghir Ahmad and Ors. vs Har Prasad Dubey

G.S.N. Tripathi, J.—This is a defendant''s appeal arising out of the judgment and decree dated 17284 passed by the then 1st Addl. District Judge, Allahabad in Civil Appeal No. 170/79 Smt. Habibun Nisha and others v. Har Prasad Dubey, whereby the learned 1st Addl. District Judge dismissed the appeal with costs. That appeal arose out of suit No. 275/71, in which the judgment and decree was delivered by Munsif West, Allahabad on 19279. The suit of the plaintiff had been decree in toto. The defendant felt aggrieved, filed the said appeal, which met this fate as noted above.

The plaintiff Har Prasad Dubey filed suit No. 275/71 in the Court of Munsif West, Allahabad for a decree of ejectment of the defendants from the portion of plot No. 126/188, Mutthi Ganj, Allahabad measuring with a frontage 43.8 inches towards Tilak Road, bounded with North portion of plot No. 188, Mutthi Ganj, Allahabad South plot of Sri Radhey Shyam, East portion of plot No. 188, Mutthi Ganj, Allahabad and West Tilak ''Road. He also claimed Rs. 215.96 on account of rent, damages, cost of notice etc. Pendente lite and future damages @ Rs. 70 was also claimed.

The plaintiff has alleged that he is the owner and landlord of l/3rd portion of plot No. 126/188, Mutthi Ganj, Allahabad with a frontage measuring 56 feet on the west/facing Tilak Road and 30 ft. 4 inches towards East, 124 ft. towards south and 132 ft. towards north. The aforesaid strip of open land was originally let out to the defendant in the year 1931 by the plaintiff''s father Sri A.P. Dubey under a registered leasedeed dated 23431 for a fixed period of one year, which was renewed from time to time and the last deed dated 13532 was executed by the defendant for the abovementioned portion of the open plot for a period'' of eleven years, which ended on 31162. After the expiry of the fixed period of the above lease, the defendant became tenant at Will of the plaintiff from month to month on a monthly rent of Rs. 70. The tenancy of the defendant was according to English calender month. The defendant on 1269 out of his own free Will and accord, surrendered a portion of the aforesaid open plot measuring 38 ft. 4 inches x 29 ft. 7 inches on the back side along with a passage of 12 ft. long of his tenament and delivered possession of the same loathe plaintiff and the defendant continued to as a tenancy of the plaintiff on rent of Rs. 70 per month in the remaining portion of the said l/3rd portion of the open land. Since the land which was let out to the defendant was an open piece of land, the provisions of U.P. Rent Control Act was not applicable. Despite this fact the defendant had surrendered a portion of his tenament, he maliciously filed a suit No. 850/69 in the Court of Munsif, West, Allahabad against the plaintiff and his son Virendra Kumar for injunction on false and baseless allegations regarding the Portion of the plot already surrendered by him in favour of the plaintiff on 1269, wherein defendant had renounced his character as a tenant of the aforesaid land and forfeited all rights to remain a tanant in respect of that land. On 13171, the plaintiff sent a combined registered notice under Sections 106 and 11(g) of the T.P. Act to the defendant, whereby the defendant''s tenancy was terminated after the expiry of 30 days from the date of receipt of the notice and he requested the defendant to hand over vacant possession of the above plot and also remove temporary construction, which the defendant had raised. That notice was served upon the defendant on 18171. But he did not reply to it nor he vacated the premises. Therefore, the necessity of the suit arose and the same was filed on 23471.

The defendant Khalil Ahmad filed his written statement dated 121275 (15ka). He has alleged that the plaintiff has no right to maintain the suit as the defendant is not a tenant at Will. The defendant obtained a licence for raising constructions and carrying on business on the land in suit, including the land stated in paragraph 4 of the plaint over which the plaintiff has iflegally and wrongfully taken possession. The defendant constructed a room, varandati and store room towards the southwest, which is in use and occupation of the defendant as office and business centre. Besides these constructions, the defendant constructed 4 kotharies for the use of his servants and labourer. In December, 1969, the plaintiff forcibly and wrongfully manipulated to take possession of the land stated in para 4 of the plaint and demolished the aforesaid 4 kotharies of the defendant. It is wrong to say that defendant voluntarily surrendered and gave possession of that portion to the plaintiff. The defendant raised construction over the land in suit by virtue of licence given by the plaintiff. The constructions are of permanent character and the licence is irrevocable and the defendant is not liable to ejectment. The defendant is not a tenant at will and is not liable to ejectment.

Upon the pleadings of the parties, the learned Munsif framed the following issues: ,

(1) Whether the suit of the plaintiff is not maintainable as alleged in written statement?

(2) Whether the suit has not been properly valued and courtfee paid is insufficient?

(3) Whether the court has no jurisdiction to try the suit?

(4) Whether the land or construction was let out either way its effect?

(5) Whether the plaintiff ever permitted the defendant to raise construction?

(6) Whether the suit is defective on account of partial ejectment as alleged in the written statement ?

(7) Whether the notice is defective and illegal. If so, its effect?

(8) Whether the suit is barred by principle of estoppel?

(9) Relief?

The learned Munsif found issues No. 1, 2, 5, 6, 7 and 8 in negative. Issues No. 3, 4 and 9 were found in affirmative. The suit of the plaintiff was decreed in toto.

Feeling aggrieved, the defendant filed a Civil Appeal No. 170 of 1979, which was heard and decided by then 1st Addl. District Judge, Allahabad on 17284. The appeal was dismissed.

Feeling aggrieved, the defendants have preferred this appeal.

The appeal was admitted on the following questions of law as formulated in the memo of appeal:

(1) Whether the learned appellate court was correct in law in holding that existence of roofed structure did not mean that the same was governed by the U.P. Rent Laws.

(2) Whether in the circumstances of the present case where the landlord allowed the lessee to make the permanent construction with roofed structure, is estopped by Rule of Estoppel and and acquisence for bringing the suit on the allegations that only the land was leased with permission to make the temporary constructions ; an additional point was permitted by me to be raised in this appeal that the suit is bad, including the notice as it is only by a cosharer and the defect of parial termination of tenancy is there. Hence the suit itself is not maintainable.

After hearing learned counsel for the parties at stretch and going through the record, I find that there is absolutely no force in this appeal and it deserves to be dismissed.

Taking the last point first, I find that this plea was not raised that the plaintiff is not the sole owner of the disputed property and he was not entitled to give notice alone to the defendant for ejectment and the suit is defective on account of partial ejectment and defective notice for wast of facts. Even otherwise, from the record, it is apparent that the defendant never raised this plea that the plaintiff was not owner of the entire ''property in dispute. In paragraph 1 of the plaint, it has been alleged that l/3rd portion of plot No. 126/188, Mutthi Ganj, Allahabad was let out to the defendant by the father of the plaintiff by a registered leasedeed and this lease was renewed from time to time. In the written statement filed by Khalil Ahmad, it was not urged that the plaintiff was not the sole owner and he had no right to give notice alone to the defendant. No only this, Khalil Ahmad filed a suit No. 850/69 against Virendra Kumar and Har Prasad (plaintiff) for a permanent injunction and possession of portion of plot No. 126/188, Mutthi Ganj, Allahabad. That suit was dismissed. The appeal No. 223/71 arising out of that judgment was also dismissed on 4184 on the statement of the Counsel that the appeal is not pressed. In that case also the defendant, who is now the plaintiff, alleged himself to be the sole owner of the disputed property by virtue of private partition amongst his brothers. Therefore, 1 find this is a question of fact and that should have been raised at the earliest in the written statement. But it was not raised by the defendants. Hence, it cannot be allowed to be raised here. Moreover, from the record it is established that the plaintiff is the sole owner of the disputed property and he is solely entitled to sue. Therefore, point No. 3 raised in this Court for the first time, is decided against the defendantsappellants.

Points No. 1 and 2 upon which the appeal has been admitted at the first instance by this Court:

While deciding issues 4, 5 and 8, the learned Munsif in the body of his judgment after appraisal of the oral and documentary evidence on the record, has come to the conclusion that the defendant had let out the open piece of land for the first time on 28131. That lease was renewed on 20.7.39 and 13552. He has also specifically mentioned that in the leasedeed, the defendant had been specifically prohibited from raising any permanent construction. If at all he raised some temporary constructions, he would remove them as and when his tenancy came to an end. Therefore, even if the defendant has raised some constructions, during this period, they may be treated to be unauthorised and if at all there are constructions of this nature, the defendant is at liberty to remove them at the time of vacation of the premises. Thus, there is a clear finding on this point that only an open piece of land was let out to defendant and he had no right to raise construction of permanent nature upon this land. This point was considered by the learned 1st Appellate Court also. In the body of his judgment that only a land had been leased out and the Kachcha constructions were raised without the permission of the landlord. The tenancy was created only about the land and not of the structures, which were brought into existence by the lessee subsequently. Strangely it was urged before the learned 1st Appellate Court that the defendant has not removed this constructions, which have been raised by him during the tenure of his tenancy. It has been rightly repelled by the learned 1st Appellate Court that the defendant became a tenant of constructions. The plea of holding over under Section 116 of the T.P. Act was also treated by the learned 1st Appellate Court as point No. 2 and he recorded a dategorical finding that the defendant was tenant at Will. There was no month to month tenancy and the Urban rent law (U.P. Act No. 13/72) will not be applicable to the premises. The question of waiver was considered as point No. 3 by the learned 1st Appellate Court and that was also rejected.

The sum total of the entire analysis is that all the questions of fact have been considered by the courts below and they have given a concurrent findings that only on open piece of land was let out to the defendants. He had no right to raise construction of permanent nature and if at all, they were raised any during the tenancy period, they were liable to be removed by the defendant on his own cost.

Both the points raised in the memo of appeal upon which the appeal has been admitted, have thus no force as they are pure questions of fact and they are accordingly rejected. The appeal has no force. It is accordingly dismissed with costs.

At the end, Sri E.M. Dayal, learned senior Counsel urged the court that since the defendants have been in possession of this property for a very long time since 1931, therefore, they may be given reasonable time to vacate the premises. According to Mr. Dayal, reasonable time should be one year. Whereas Sri TP. Singh, learned Counsel for the respondent countered it and said that it should be loss than 6 months.

Moreover, the plaintiff has been litigating since 1971, therefore 6 months'' time is more than reasonable. However, the defendants are given 6 months'' time to vacate the premises and hand over the actual and physical possession of the premises in question to the plaintiff, failing which the plaintiff shall have a right to get the decree executed in accordance with law.

It is made clear that the aforesaid statement of Mr. Dayal is sufficient to be treated as an undertaking on behalf of his client that the defendants shall hand over possession to the plaintiff within 6 months from today. I accept this undertaking given by Sri Dayal who is a very senior and respectable Counsel.