HIGH COURT OF UTTARAKHAND AT NAINITAL (Court’s order whether the case is or not approved for reporting) Description of the case S.A. No. 92 of 2005 Surjeet Singh and others Vs. Smt. Kamla Pandey and others. Approved for reporting. Date of Decision:- 05.03.2008. Initial of Judge: ………………… ,,,,,,,,,,,,,,,,,,,,,,,, ……………….. RESERVED HIGH COURT OF UTTARAKHAND AT NAINITAL SECOND APPEAL NO. 92 / 2005 1. Surjeet Singh 2. Trilochan Singh 3. Bhagat Singh 4. Jasveer Singh All are sons of late Sri Gopal Singh R/o Tikonia Road, Haldwani, District Nainital 5. Smt. Prakash Kaur, W/o Late Sri Gopal Singh ….Defendants- Appellants Vs. 1. Smt. Kamla Pandey, W/o late Sri D.K. Pandey 2. Sri B.K. Pandey, S/o Late Sri D.K. Pandey 3. K.K. Pandey, S/o Late Sri D.K. Pandey All are R/o New Elphinstone Cottage, Tallital, Nainital 4. Smt. Sheela Pant, W/o Sri Ramesh Chandra Pant D/o late Sri D.K. Pandey, R/o G.B. Pant University of Agriculture and Technology, Pantnagar District- Udham Singh Nagar ……Plaintiffs- Respondents 5. Trilochan Kaur, adult W/o Dr. Kashmir Singh R/o Railway Hospital, Mukharji Marg, Delhi 6. Smt. Avtar Kaur both D/o late Sri Gopal Singh R/o 211 TROY ST MISSISSOUGA ONT-L 51 S7, CANADA ….Defendants/Performa Respondents 5.3.2008 Hon’ble Rajesh Tandon, J. Heard Shri Bindesh Kumar Gupta, Advocate Counsel for the appellants and Shri B.C. Pandey assisted by Shri Naresh Pant, counsel for the respondents. 2. By the present second appeal filed under Section 100 of Code of Civil Procedure, the appellants have prayed for setting aside the judgment and decree dated 7.10.2005 passed by the Additional District Judge/ First Fast Track Court, Haldwani, District Nainital in Civil Appeal No. 65 of 1994 whereby the appeal of the plaintiffs-respondents was allowed by the setting aside the judgment and order passed by the Munsif Haldwani dated 20.8.1994 passed in Civil Suit No. 50 of 1986. 3. The second appeal was admitted on the following substantial question of law:- “1. Whether the provisions of Section 29-A of the U.P. Act No. XIII of 1972 are attracted to the constriction raised in the property in dispute of the suit? 2. Whether raising a construction over a disputed property under the tenancy without any complaint and objection of the landlord will not come within the purview of implied consent of the landlord for raising such a construction and consequently whether on such a implied consent the benefit of Section 29-A can be given or not to the tenants? 3. Whether the word landlord’s consent as referred in Section 29-A (2) of the U.P. Act No. 13 of 1972 includes the implied consent or not and if there is an implied consent then whether the tenant can be given the benefit of Section 29- A of the Act No. 13 of 1972 or not ? 4. Whether the property in dispute was covered under the definition of building as provided U/s 3 (i) of U.P. Act No. XIII of 1972 ?” 4. Briefly stated, a suit was filed by the plaintiffs- respondents stating therein that the plaintiffs are the owners and landlords of the property in dispute situate at Tikonia Road, Haldwani, District Nainital and the defendants are the tenants of the one portion of the property on a sum of Rs. 350/- per annum. The defendants have not paid the rent since 1-1-1980 inspite of repeated demands. The plaintiffs have sent a notice demanding the entire arrears of rent and terminating the tenancy of the defendants through their advocate on 15.2.1983 which was served upon the defendants on 9.3.1983. Through the aforesaid notice, the defendants were asked to pay the arrears of rent and vacate the premises in question. But, the defendants did not pay any heed to the said notice and neither paid the arrears of rent nor vacated the premises in dispute. Therefore, the present suit has been filed for eviction of the defendants from the property in dispute and possession of the plaintiffs thereon. 5. The defendants have filed a written statement stating therein that the plaintiffs are the owners and landlords of the property in dispute but they are not the sole owners and landlords of the property in dispute. It has been admitted that there exists the relationship of landlords and tenants between the plaintiffs and the defendants. The tenancy is on yearly basis. The defendants have also admitted the service of the notice. 6. In the additional pleas, it has been submitted that the disputed property is not the land only but there was construction on the disputed property. The suit should have been instituted under the provisions of U.P. Act No. 13 of 1972. The court has no jurisdiction to try the suit. Paragraph nos. 10 and 11 of the additional pleas to that effect are quoted below:- “10. That the property in dispute is not the plot of land only nor was the plot of land only at the time of letting out but the land with constructions was the subject matter of tenancy and as such the provisions of U.P. Act No. XIII of 1972 (U.P. Urban Building Regulations of Letting Rent and Eviction Act, 1972 hereinafter called Rent Control Act are applicable to this property. 11. That in view of the applicability of the provision of Rent Control Act the suit should have been tried on small cause side and the regular suit is not maintainable and this court has no jurisdiction to try this suit.” 7. Further, it has been submitted that the notice given to the defendants is illegal because the tenancy between the defendants and the plaintiffs was on yearly basis and the property in question was taken on rent for manufacturing purposes. The tenancy should have only been terminated by giving 6 months’ notice when in point of fact the notice has been served for one month. It has also been submitted that in the year 1950 the property in dispute was taken on rent by the defendants from Shri D.K. Pandey, the then owner of the property in dispute and Shri D.K. Pandey had permitted the defendants to make constructions as per necessity. Therefore, the defendants are entitled to get the benefit of Section 29-A of U.P. Act No. 13 of 1972. 8. On the pleadings of the parties, the trial court has framed as many as 15 issues to the following effect:- 1- D;k okn dk ewY;kadu de fd;k x;k gS o ml ij ns; U;k; 'kqYd de vnk gS \ 2- D;k izfroknh dks okn i= esa of.kZr iykV fdjk;s ij fn;k x;k Fkk rFkk ;w-ih- ,DV 13 lu~ & 72 ds izko/kku ykxw ugha gksrs \ 3- D;k izfroknh us fdjk;s dh vnk;xh esa dksbZ pwd dh gS] ;fn gka rks fd vof/k esa \ 4- D;k izfroknh dh fdjk;snkjh jftLVMZ uksfVl fn0 15-2-83 }kjk fof/kd :Ik ls lekIr dj nh x;h gS \ 5- D;k IykV fdlh fufeZr fuekZ.kksa ds lkFk fdjk;snkjh dh fo"k; oLrq Fkh\ ;fn gka rks D;k fookfnr lEifRr ij ;w-ih- ,DV 13 lu~ 72 ds izko/kku ykxw gksrs gSa \ 6- D;k bl U;k;ky; dks bl okn dh lquokbZ o fUkLrkj.k dk {ks=kf/kdkj ugha gS \ 7- D;k fookfnr lEifRr dk mRrjkf/kdkj Lo0 Mh0ds0 ik.Ms ds leLr mRrjkf/kdkfj;ksa dks igqWprk gS\ ;fn gka rks oknhx.k dks vdsys eqdnek yMus dk vf/kdkj ugha gS \ 8- D;k okn /kkjk 214 Hkk0 mRrjkf/kdkj vf/kfu;e izek.k i= ds fcuk pyus ;ksX; ugha gS \ 9- D;k fdjk;s dh ekax vkSj fdjk;snkjh dh lekfIr dk uksfVl Jh xksiky flag ds leLr mRrjkf/kdkfj;ksa ij rkehy gqvk] ;fn gka rks mldk izHkko\ 10- D;k fdjk;snkjh okf"kZd gS \ ;fn gka rks D;k uksfVl voS/kkfud gS \ 11- D;k izfroknh us xM~<ksa dks Hkj fn;k gS vkSj lEifRr esa cqf) dh gS] ;fn gka rks izHkko \ 12- D;k iV~Vs dh 'krksZ ds vUrxZr izfroknh LFkkbZ fuekZ.k djus o fuekZ.k O;olk; djus ds vf/kdkjh gS vkSj csn[ky gksus ;ksX; ugha gS\ 13- D;k izfroknh ;w-ih-,DV 13 lu~ 72] /kkjk 29 ,] dk YkkHk ikus dk vf/kdkjh gS\ ;fn gka rks fdu 'krksZ ij \ 14- oknhx.k fd vuqrks"k dks ikus dk vf/kdkjh gS \ 15- D;k oknh dk okn dky vof/k ls ckf/kr gS \ tSlk fd izfrokn i= dh /kkjk 31 esa dgk x;k gS\ 9. The plaintiffs have examined Bhuwan Kishan Pandey as P.W. 1 and Devendra Singh Bedi as P.W. 2. The defendants have examined Kehar Singh as D.W. 1, Charna Das as D.W. 2, Baldev Raj as D.W.3, Umeshwar Singh as D.W. 4 and Surendra Singh as D.W. 5. 10. Towards the documentary evidence, the plaintiffs have produced the notice vide which the tenancy of the defendants have been terminated i.e. Ex. 1, Postal Receipt i.e. Ex. 2, Acknowledge Card i.e. Ex. 3. Commission report i.e. paper no. 53 ga/1, site map i.e. paper no. 53 ga/6, photographs i.e. paper nos. 53ga/7 to 53 ga 24, bill of photographs i.e. paper no. 53 ga/25 and negatives of aforesaid photographs i.e. paper no. 53 ga 26 to 53 ga/ 32 have also been produced on record. 11. While deciding as to whether the defendants were given the plot in dispute on rent and the U.P. Act No. 13 of 1972 is applicable to the property in dispute, as to whether the plot in dispute was given on rent alongwith some construction and further, as to whether the court has jurisdiction to try and suit, the trial court has recorded the findings that the land in dispute measures 1.75 bigha and the tin shed made on the 60 x 70 feet land cannot be said to be the building so as to include within the definition of U.P. Act No. 13 of 1972. The trial court has recorded the finding that the land in dispute given on rent to the defendants is bare land and the provisions of U.P. Act No. 13 of 1972 are not applicable to the property in dispute. 12. While deciding as to whether the tenancy of the defendants has been terminated by the legal notice dated 15.2.1983, as to whether the notice demanding the arrears of rent and termination of tenancy has been served upon all the successors of late Shir Gopal Singh and further, as to whether the tenancy was on yearly basis and as such the notice in question was illegal, the trial court has relied upon the admission of P.W. 1 who has admitted that he was running a workshop and was doing the repairing work on the plot in dispute, therefore, the trial court has recorded the finding that since the property in dispute was not being used for manufacturing purposes and the same was being used for running a workshop and as such, the notice for six months was not necessary and the tenancy could have been terminated by giving the notice of 15 days’. The trial court has come to the conclusion that the notice has been served upon all the successors and the same is legal and by the said notice the tenancy of the defendants has rightly been terminated. I do not find any illegality while coming to the findings regarding validity of the notice. 13. While deciding as to whether the defendants have filled up the pits and have increased the property in question, as to whether the defendants are entitled to make permanent construction and do business as per the lease deed and the tenancy is not liable to be terminated and further, as to whether the defendants are entitled for the benefits of Section 29-A of U.P. Act No. 13 of 1972, the trial court has relied upon the photographs and commissioner report and has come to the conclusion that the defendants have spend and handsome amount on filling up of the pits and as such, the defendants are entitled for the benefits of Section 29-A of U.P. Act No. 13 of 1972 and, therefore, the defendants are not liable to be evicted from the land in dispute. The findings of the trial court to that effect are quoted below:- ^^tgka rd okn foUnq dzekad 13 esa bl ckr dk o.kZu fd;k x;k gS fd izfroknh ,DV la0 13 lu~ 1972 dh /kkjk 29&, dk ykHk ikus dk vf/kdkjh gS rks og fdu 'krksZ ds vk/kkj ij ikus dk vf/kdkjh gS rks ,Dr la0 13 lu~ 72 dh /kkjk 29&, lc /kkjk 4 ds izko/kkuksa ds vuqdwy i{kdkj Lo;a vkil esa ,d ekg ds vanj ;g fu.kZ; dj ldrs gSa fd fookfnr vkjkth dk fdjk;k D;k gksuk pkfg,A ;fn i{kdkj bl lgefr ij ugha igqWprs gSa rks mijksDr ,d eghus ds Ik’pkr~ vxys ,d ekg ds vanj izfroknh ftyk eftLVªsV uSuhrky dks fdjk;k fu/kkZj.k gsrq izkFkZuk i= izLrqr dj djsxk ,oa ml izkFkZuk i= ij gq, fu.kZ; ds vuqlkj fdjk;k oknh dks nsxkA rnkuqlkj mijksDr lHkh okn fcUnq fuLrkfjr fd, tkrs gSaA ** 14. In fact, the benefit of Section 29-A of U.P. Act No. 13 of 1972 was given to the appellants by the trial court. 15. While deciding as to whether the defendants have made the default in the payment of rent, the trial court has relied upon the challans of the rent which fully prove that the defendants have not made any default in the payment of the rent. The trial court has further recorded the finding that though it has been concluded that the property given on rent was only a vacant plot and the notice given to the defendants was legal but keeping in view the expenditure incurred on filling up of the pits and making construction on the land in dispute, no decree for eviction can be passed against the defendants. 16. On the basis of the aforesaid, the trial court has dismissed the suit of the plaintiffs. 17. Aggrieved by the judgment and decree passed by the trial court the plaintiffs went in appeal. The defendants have also filed the cross-objection against the judgment and decree passed by the trial court. 18. Before the appellate court it has been submitted that the trial court has erred while observing that that there was a tin shed measuring 60 x 70 feet on the plot in dispute while giving the same on rent to the defendants. It has been submitted that the plaintiffs have never permitted the defendants for making any constructions. The appellate court has relied upon the statement of D.W. 1 Kehar Singh who has deposed that at the time of taking the property in dispute on rent there was a tin shed on the plot and the rest of the land was lying vacate. Further, the statements of D.W.2 Charan Das and D.W. 3 Baldev Raj have been relied upon by the appellate court wherein they have deposed that there was a kuchha tin shed measuring 60 x 70 feet. The appellate court has recorded the finding that the depositions of the defendants’ witnesses nowhere prove that they have been given the tin shed on rent. So far as the findings recorded by the trail court with regard to payment of rent and service of notice are concerned, the appellate court has affirmed the same and has recorded the finding that the tenancy between the plaintiffs and the defendants was on month to month basis and the plaintiffs have served the notice demanding the arrears of rent and terminating the tenancy as well and through the said notice the tenancy of the defendants have rightly been terminated. So for as the benefits of Section 29-A of U.P. Act No. 13 of 1972 to the defendants are concerned, the appellate court has recorded the finding that the defendants have been given the plot only on rent and the constructions on the land in dispute have been made without permission of the plaintiffs and, as such, the defendants are not entitled for the benefit of Section 29-A of U.P. Act No. 13 of 1972 and they are liable to be evicted from the property in dispute. So far as tin shed is concerned, the appellate court has recorded the finding to the following effect:- ^^bl izdkj Lo;a izfroknh ds xokgksa ds c;kuksa ls gh ;g Li"V gS fd fookfnr nksuksa IykV yxHkx Ms<&ikSus nks ch?kk ds gSa] ftlesa ls dsoy 60&70 QqV ij gh ,d dPpk Vhu’kSM cuk FkkA izfroknh o mlds xokgksa ds c;kuksa esa dgha ij ;g ugha dgk x;k gS fd Lo- Mh-ds- ik.Ms }kjk o"kZ 1950&51 esa Vhu’kSM fdjk;s ij fn;k x;k FkkA ftl le; fookfnr lEifRr dsgj flag o xksiky flag dks fdjk;s ij nh xbZ ml le; mUgksusa bl lEifRr dks [kkyh tehu ekurs gq, fdjk;s ij fy;k Fkk] rkfd ogka ij dsgj flag o xksiky flag xkfM;ksa dh ejEer dk dk;Z dj ldsaA ;g iwjh lEifRr yxHkx ikSus nks ch?kk gS] ftlesa dsoy ,d NksVs ls Hkx 60&70 QqV ij gh vLFkk;h Vhu’kSM ekStwn Fkk A bl izdkj i{kdkjksa ds lk{; ds voyksdu ls ;g Li"V gS fd ftl le; ;g lEifRr fdjk;s ij nh xbZ ml le; yS.M& ykSMZ us foi{kh dsgj flag o xksiky flag dks [kkyh IykaV fdjk;s ij fn;k FkkA ;fn ikSus nks ch?kk tehu ds ,d NksVs ls Hkkx 60&70 QqV ij ysoj j[kus ds fy, dsoy ,d vLFkk;h fVu’kSM cuk gksus ls ;g ugha dgk tk ldrk fd ;g ikSus nks ch?kk tehu Vhu’kSM dk vuqlafxd Hkkx gSA** 19. On the basis of the aforesaid, the appellate court has allowed the appeal of the plaintiff-appellant and decreed the suit. 20. Counsel for the appellants- has submitted to the following effect:- (a) That when the property in dispute was let out there was a tine shed existing on it having a roof and, therefore, the same is covered within the definition of the building a provided U/s 3 (i) of the U.P. Act No. 13 of 1972. (b) The provisions of U.P. Act No. 13 of 1972 being applicable on the property in dispute, suit should have been filed before the Judge, Small Cause Court. (c) Appellants are entitled for the protection under Section 29 A of the U.P. Act No. 13 of 1972 and the appellate court has illegally interfered with the findings of the trial court while deciding the issue no. 15 in favour of the defendants. 21. From the perusal of the record, it appears that P.W. 1 Bhuvan Kisham Pandey in his statement has admitted that in the year 1955-56 there was a khokha existing on the land in dispute and the same was also existing in the year 1983. This witness has placed ignorance about the terms and conditions of the tenancy. Statement of P.W. 1 Bhuvan Kishan Pandey to that effect is quoted below:- ^^ uksfVl nsrs le; lqjthr okyh txg ij ydMh dk [kks[kk if’pe&mRrj dh rjQ FkkA yackbZ pkSMkbZ dk eq>s ugha gSA mij fVu 'kSM FkkA ydMh dk [kks[kk ydMh ds r[rksa ij gh dj jgk FkkA [kks[kk bl le; iqjkuh gkyr esa ugha gSA FkksMh bZVksa dh nhoky nf{k.k dh rjQ yxk yh gSA 1955 &56 esa [kks[kk cuk gqvk FkkA lu~ 1983 esa Hkh [kks[kk FkkA rc ls vc rd 'kDy cny x;hA 1955 esa [kks[ks dh D;k n’kk Fkh eq>s iw.kZ Kku ugha gSA** 22. P.W. 2 Devendra Singh Bedi corroborating the statement of P.W. 1 has stated that there was a tin shed existing on the disputed property when it was let out. It is also evident from the document that the property in dispute was mortgaged by the respondents with the bank and the appellants were depositing the rent in the bank and the payment of rent has been proved by the D.W. 4 Umeshwar Singh. 23. The appellate court has observed as under:- ^^ ;fn izfroknhx.k dk bjknk /kkjk 29 ,] ;w-ih- ,DV lu~ 72 ds rgr ykHk izkIr djus dk gksrk rks izfroknhx.k dks vkt rd lEifRr Lokeh ls fdjk;s ds laca/k esa le>kSrk djuk pkfg;s Fkk] ijUrq muds }kjk bl lEcU/k esa vkt rd dksbZ le>kSrk ugha fd;k x;k] u gh mudh vksj ls ftyk eftLVªsV] uSuhrky dks fdjk;k lqfuf’pr djus ds fy;s vkosnu i= fn; x;kA bl laca/k esa eqaflQ gY}kuh }kjk tks viuk fu.kZ; fn;k x;k og rF;ksa o fof/k ds foijhr gSA U;k;ky; bu okn fcUnqvksa ds laca/k esa bl fu"d"kZ ij igqWprk gS fd izfroknhx.k }kjk fookfnr lEifRr ij Lo- Mh-ds- ik.Ms o muds okfjlku dh vuqefr ds fcuk fuekZ.k dk;Z fd;k x;k] Hkys gh izfroknhx.k us fookfnr lEifRr ij dkQh /kujkf’k [kpZ dh gks] D;ksfd izfroknhx.k us fookfnr lEifRr dk fdjk;k oknhx.k dks vnk ugha fd;k vkSj mUgksus bl lEifRr ds Lokeh dh vuqefr ds fcuk fuekZ.k dk;Z fd;k gSA bl fy;s izfroknhx.k fookfnr lEifRr ls csn[ky gksus ;ksX; gS vkSj og /kkjk 29 ,] ;w-ih- ,DV 13 lu~ 1972 dk ykHk ikus dk gdnkj ugha gSA** 24. Counsel for the appellants has referred the judgment of this Court in S.M. Puri & others Vs. Ist Addl. District Judge, Nainital & others, 2007 (2) UD 631, it has been observed as under:- “8. Learned counsel for the petitioner drew attention of this Court to Clause (i) of Section 3 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred as U.P. Act No. 13 of 1972), which defines word ‘building’ as under:- “building”, means a residential or non- residential roofed structure and includes- (i) any land (including any garden), garages and out-houses, 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;” “Having gone through the papers on record and keeping in view the definition of ‘building’ contained in Clause (i) of section 3 of U.P. Act No. 13 of 1972, this Court is of the view that both the courts below have erred in law in not treating the land appurtenant to the quarters as the part of the quarters under tenancy of the defendant merely for the reason that on the date when quarters were transferred by the Government to the petitioners it is not mentioned that the land adjoining the quarters over which disputed tin-shed is erected is also transferred to the petitioner does not mean that no land stood transferred to the petitioners except the quarters.” “From the evidence on record, it appears that the tin-shed was erected prior to the letter dated 2.11.1955, but defendant could raise tin- shed only because they were tenant in the quarters no. 15 and by that capacity they were occupying the land appurtenant thereto.” “But in the present case, it is a question of interpreting the meaning of work ‘building’ as contained in Clause (i) of Section 3 of U.P. Act No. 13 of 1972 and to come to the conclusion whether the appurtenant land of the quarters in which defendant was admittedly a tenant is part of said tenancy or not. In the opinion of this Court, both the courts below have erred in law in treating the land appurtenant to the quarters, as separate from the quarters. From no stretch of imagination can it be said in a single storied quarters only a construction part in transferred to the petitioners by the Government and not the land beneath it. Once that be the position the land which is appurtenant to the quarters meant exclusively for the use of the quarters and view taken by the courts below is contrary to it cannot be upheld.” 25. Second appeal was admitted on the substantial questions of law with regard to applicability of Section 29-A of U.P. Act No. 13 of 1972 and further whether raising of the constructions over the disputed property under the tenancy without any objection will be sufficient so as to give the benefit under section 29 A of U.P. Act No. 13 of 1972 and further as to whether there was landlords’ consent within the meaning of Section 29 A (2) of U.P. Act No. 13 of 1972. All the above three substantial questions of law on which second appeal was admitted are interconnected to each other. 26. In