ivil Appeal No 912 of 1989
From the Judgment and Order dated 1151988 of the Allahabad High Court in Misc
WP No 7886 of 1985
Yogeshwar Prasad and Mrs Shobha Dikshit for the Appellant
758 Satish Chandra and Madan Lokur for the Respondents
The Judgment of the Court was delivered by KULDIP SINGH J
Special leave granted
This appeal arises out of a suit filed by respondent plaintiff landlord in the Court of Judge Small Causes Gorakhpur for eviction of the appellants defendant tenant from the house in question on the ground of failure to pay the rent and for realisation of arrears of rent and elec tricity charges amounting to Rs256060
It was pleaded that the tenant was to pay a monthly rent of Rs70 apart from Rs3 per month as water and electricity charges and was in arrears since July 1979 which he failed to pay
The appellant contested the suit mainly on the ground that the rate of rent was not Rs70 per month but it was only Rs40 and besides that he was provided with furniture by the landlord for which he was paying Rs30 per month
His case further was that some time after the tenancy commenced he returned the furniture
The Judge Small Causes Court by his judgment dated 10th
November 1983 dismissed the suit holding that the rate of rent was Rs40 per month and as such the appellant was not a defaulter
The respondent filed a revision which was allowed by the Additional District Judge Gorakhpur
The Revisional Court held that the rate of rent was Rs70 per month
The appellant filed a writ petition against the revisional order before the Allahabed High Court
The High Court allowed the writ petition quashed the revisional order and remanded the case for deciding the revision peti tion afresh
Thereafter the Revisional Court again allowed the revision and set aside the judgment of the Trial Court and ordered ejectment
The appellant again challenged the revisional order by way of a writ petition before the Alla habad High Court but the same was dismissed
Hence this appeal
The Trial Court primarily relied upon documents 39C and 40C produced by the defendants
Document 39C is a receipt by the plaintiff wherein details of Rs73 are given
It is clearly mentioned in the receipt that Rs40 were towards house rent Rs30 towards furniture charges and Rs3 water and electricity charges
The plaintiff admitted the contents of receipt 39C but he explained that Rs30 towards furni ture charges were mentioned at the request of the defendant
The plaintiff strongly relied upon the rent note 97C where in monthly rent of the house was mentioned at Rs70
The Trial Court rejected the rent 759 note on the ground that the same was not signed by the defendant
Basing its findings on the receipt 39C the Trial Court dismissed the suit
The Revisional Court on the other hand found force in the contention of the plaintiff that the rent note 97C was signed by the defendant
It was held that the admission if any of the plaintiff in receipt 391C is contradicted by the rent note 97C and as such cannot be taken into consideration
The Revisional Court thus differed from the Trial Court and ordered ejectment
Before us the counsel for the appellant Shri Prasad contends that in the face of clear admission of the respond ent in the receipt 39C the rent of the house was Rs40 per month
He further contents that the rent note even if taken into consideration has been explained by the receipts 39C and 40C
According to him Rs70 per month mentioned in the rent note has been explained in the receipts to be Rs40 as house rent and Rs30 for the furniture
We find force in the contention of the learned counsel
In the face of clear admission by the respondent in the two receipts the finding of the Revisional Court to the effect that the monthly rent was Rs70 is erroneous
Faced with this situation Shri Satish Chandra learned counsel for the respondent invited our attention to Section 3i of the UP Urban Buildings Regulation of Letting Rent and Eviction Act 1972 here inafter called the Act  and contends that the tenancy was for a furnished building and as such failure to pay even Rs30 in respect of furniture would attract the provisions of Section 202a of the Act and the appellant is liable to be ejected
Section 3i and Section 202a of the Act are as under Section 3ibuilding means a residential or nonresidential roofed structure and in cludes i any land including any garden garages and outhouses appurtenant to such building ii any furniture supplied by the landlord for use in such building iii any fittings and fixtures affixed to such building for the more beneficial enjoyment thereof
Section 202a
that the tenant is in arrears of rent for not less than four months and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand 760 Shri Satish Chandra contends that definition of building under Section 3i includes any furniture supplied by the landlord for use in such building and as such non payment of part of the rent meant for furniture would amount to arrears of rent and the appellant having failed to pay the same is liable to be ejected
In other words he contends that it was a furnished house which was let out to the appellant
He also contends that tenancy being of a furnished house the tenant could not under law unilaterally surrender part of the tenancy by returning the furniture
There may be some force in the abstract proposition of law canvassed by Shri Satish Chandra on the basis of Sections 3i and 202a of the Act but there is no basis for him in the present case to advance the same
It was never the case of the respondent at any stage that furnished house was given on rent to the appellant
In the notice before filing the suit and in the plaint it was specifically pleaded that rent of the house was Rs70 per month and the tenant was in arrears
In the written statement appellant took a clear stand that the rent of the house was only Rs40 and Rs30 was for furniture which according to the appellant he returned after the commencement of the tenancy
The respondent filed a replica tion to the written statement of appellant
In Clause 3 of the replication the respondent denied that either the rent was Rs40 per month or Rs30 was being charged for furni ture
He stated that neither any such goods had been sup plied to the appellant by him nor the rent was agreed at Rs40 per month
It is thus obvious from the pleadings that at no stage the respondent pleaded that he had given furnished house on rent to the tenant
Rather the supply of furniture was categorically denied
In the face of clear pleadings on the record it is impermissible to raise the plea that the land lord rented a furnished house to the tenant
It would be contrary to the pleadings
That apart neither before the Trial Court nor before the Revisional Court and not even before the High Court this plea was raised
Therefore there is no force in the contention of Shri Satish Chandra and the same is rejected
This Appeal is therefore allowed
The judgments of the High Court and of the Revisional Court are set aside
The judgment of the Trial Court is restored and the suit of respondent is dismissed
There will be no order as to costs
NPV Appeal allowed


Summary:
The father of the appellant was conferred a gallantry award posthumously by the Government wherewith a piece of land situated in Lyallpur district was granted to him and was allotted to the appellant who took possession on July 24 1947
Consequent to the partition of the country the family migrated to India where the Government allotted about 69 standard acres of land in Jullundur district as compensa tion for the land left behind in Pakistan
Out of this land 19 standard acres came under the possession of the respond ent as a tenant
On February 1961 the respondent filed an application under section 18 of the Punjab Security of Land Tenures Act 1953 to the Assistant Collector stating that he was a tenant in respect of the aforesaid land and should be granted permis sion to purchase the same
The Assistant Collector granted the requisite permission subject to the payment of Rs2100788P in ten equal half yearly instalments
The appellant appealed to the Collector who upheld the permis sion to purchase but enhanced the amount payable to the appellant as landlord
During the pendency of these proceedings the appellant moved an application under section 9 read with section 14A of the Act for ejectment of the 818 respondent and obtained an order an 27th September 1961
The respondent moved a revision petition before the Commissioner in the proceedings initiated under section 18 of the Act and the Commissioner made a recommendation to the Financial Commissioner for setting aside the orders of the Assistant Collector and the Collector allowing the purchase of land by the respondent on the ground that the application of the appellant for the ejectment of the respondent had since been allowed
The Financial Commissioner set aside the order of purchase
The respondents  writ petition chal lenging this order was allowed and the High Court quashed that order on 30th August 1966
On July 3 1970 the appellant filed a suit against the respondent for possession of the land contending that the respondent had entered on a part of land as tenant and subsequently applied for the purchase of the land under section 18 but by virtue of section 19 DD of the Act inserted on August 3 1968 with retrospective effect the suit property of gallantry award was exempted from the provisions of the Act
The Trial court dismissed the suit
The order was affirmed in appeal by the Additional District Judge and the second appeal to the High Court was also dismissed holding that section 19 DD of the Act was applicable to the suit land and the tenant could purchase it under section 18
In the appeal to this Court it was contended on behalf of the appellant that the High Court was in error in holding that the land in question having been granted to the appel lant the landlord in the year 1946 the same could not be said to be covered by the provisions of section 19 DD of the Punjab Security of Land Tenures Act 1953
It was also contended that equity is in favour of the appellant as the land was as compensation for the gallantry award land left by the awardee family at Layallpur as a result of partition of the country and that the privilege of exemption should be acquired by the compensation land and that the appellant has acquired the right to purchase as a tenant in occupation after a long time
Dismissing the appeal the Court HELD 11
From the language of section 19 DD of the Punjab Security of Land Tenures Act 1953 which was inserted by the Punjab Act No 12 of 1968 and from the fact that the date of the award of the grant of the land for gallantry having been before the 26th day of January 1950 so long as such land or any portion thereof had not passed from the original grantee into more than three successive 819 hands by inheritance or bequest and was held by the gran tee or any of such hands such land or portion as the case may be should not be taken into account in computing the surplus area under the Act nor shall any tenant of such land or portion have the right to purchase it under section 18
822C D 12
There is no basis for holding that the exemption in respect of the gallantry award land will be available in respect of the land given under the as compensation for the loss thereof
There is no infirmity in the High Court judgment on this Court
823A B 13
Equity is being claimed by both the parties
Under the circumstances there is no other alternative but to let the loss lie where it fails
As the maxim is in aequali jure melior est conditio possidentis  Where the equities are equal the law should prevail the respondent s right to purchase must therefore prevail
823B C