Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 970 of 2005 (M/S) [ 1. Km. Rajni Sharma 2. Km. Deepa Sharma Both Daughters of late Mahendra Kumar R/o 135 / 19, Dharampur, District Dehradun. ...…………. Petitioners Versus Shiv Mandir Prabandh Samiti, Dharampur, Through its Pradhan Shivram Sharma S/o Balchand and Secretary Sri L.R. Mishra S/o Shri R.K. Mishra R/o 135 / 161, Shiv Mandir, Dharampur, Dehradun. ...………… Respondent Mr. Arvind Vashistha, Advocate for the petitioners. Mr. B.P. Nautiyal, Advocate for the respondent. Hon’ble Prafulla C. Pant, J. By means of this writ petition, moved under Article 226 read with Article 227 of the Constitution of India, the petitioners have sought writ in the nature of certiorari quashing the impugned judgment and order dated 03.08.2005, passed by Addl. District Judge / F.T.C. 6th, Dehradun, in Small Cause Revision No. 83 of 2001, whereby the said court has affirmed the judgment and decree dated 24.11.2001, passed by 2 Judge, Small Causes Court / Civil Judge (Senior Division) / F.T.C. 12, Dehradun, in Small Causes Court Suit No. 43 of 1996. 2) Heard learned counsel for the parties and perused the papers on record. 3) Brief facts of the case are that the plaintiff / respondent instituted S.C.C. Suit No. 43 of 1996, for recovery of arrears of rent and ejectment of the defendant-tenant Mahendra Halwai (since deceased) from the premises in his occupation in Shiv Mandir Samiti, Dharampur, Dehradun. As per the plaint case, the landlord Shiv Mandir Prabandh Samiti (present respondent) let out a piece of land situated in the temple premises bearing Municipal No. 135 / 161, Shiv Mandir, Dharampur, Dehradun, in the year 1971 to the defendant-tenant at the rate of Rs. 40/- per month. The tenant was permitted to put a kiosk to run his business. It is further pleaded by the plaintiff that the plaintiff is a charitable institution and exempted from the operation of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. It is alleged that the defendant failed to pay rent, and by 31st of December 1995, arrears mounted to Rs. 5,050/-, which the defendant failed to pay even after being served with notices under Section 106 of the Transfer of Property Act, 1982. In response to the notice, it is alleged by the plaintiff that the defendant denied title of the plaintiff 3 whereupon fresh notice terminating the tenancy of the defendant was issued, and thereafter, the suit was instituted. 4) The defendant Mahendra Halwai (since deceased) contested the suit and filed his written statement in which it is admitted by the defendant that in the year 1971, a piece of land was let out to his father by the plaintiff on rent at the rate of Rs. 20/- per month, and pucca constructions were carried out over the land with the permission of the landlord, and the defendant and his family members are living in it. It is further pleaded that later the rent was enhanced to Rs. 40/- per month. Vide notice dated 19.12.1995, the plaintiff demanded rent at the rate of Rs. 350/- per month and said demand was illegal. According to the defendant the rent had already been paid upto January 1996, as such, no default was committed by the defendant. It is stated that plaintiff had no right to terminate the tenancy of the defendant on frivolous ground. 5) The trial court recorded the evidence of the parties, on following points of determination / issues: i) Whether, provisions of U.P. Act No. 13 of 1972, are not applicable to the property in suit, as alleged in Para 3 of the plaint? ii) Whether, defendant has committed default in payment of rent? 4 iii) Whether, defendant is liable to be evicted on the ground that he had challenged ownership / land-lordship of the plaintiff? iv) Whether, the suit is not maintainable, in law? v) To what relief, if any, the plaintiff is entitled? After hearing the parties, the trial court decided all the issues in favour of the plaintiff and decreed the suit for recovery of Rs. 5,400/- towards arrears of rent, and also for ejectment of the defendant from the premises in suit. Aggrieved by said judgment and decree dated 24.11.2001, passed by Judge, Small Causes Court / Civil Judge (Senior Division) / F.T.C. 12, Dehradun, the defendant preferred S.C.C. Revision No. 83 of 2001, which was decided after hearing the parties by Addl. District Judge / F.T.C. 6, Dehradun. The revision was dismissed vide impugned judgment and order dated 03.08.2005, passed by the revisional court. Hence, this petition. (During the pendency of the revision, defendant Mahendra Halwai died and his daughters, namely Rajni Sharma and Deepa Sharma got substituted as legal representatives). 6) Before further discussion, this Court thinks it just and proper to mention the relevant provisions of law applicable to this case. Section 15 of the Provincial Small Cause Courts Act, 1887 empowers a court of 5 small causes to take cognizance of suits, except specified in the Second Schedule. Article 4 of Second Schedule defines a suit for the possession of immovable property or for the recovery of an interest in such property, which means that such suits are excepted from the cognizance of a court of small cause. However, Uttar Pradesh Amendment incorporated vide U.P. Act No 37 of 1972 (applicable to the State of Uttarakhand) substitutes Article 4 of Second Schedule, reads as under: “(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 for him of compensation for the use and occupation of that building after such determination of lease. Explanation –For the purpose of this article, the expression ‘building’ means a residential or non- residential roofed structure, and includes any land (including any garden), garages and out-houses, appurtenant to such building, and also includes any fittings and fixtures affixed to the building for the more beneficial enjoyment thereof.” From the above provision contained in U.P. Amendment relating to Article 4 of the Second 6 Schedule of the Provincial Small Cause Courts Act, 1887, it is clear that a lessor (landlord) can maintain a suit for eviction of his lessee, after determination of his lease in respect of a ‘building’. In the present case, admittedly, a piece of land was let out by the plaintiff (present respondent) to the original tenant. In Para 2 of the plaint it is pleaded that a piece of land was let out to the defendant on rent at the rate of Rs. 40/- per month, and a kiosk was allowed to be put by the defendant. On the other hand, the defendant in his written statement has pleaded that though a piece of land was let out to his father, a pucca construction was made on it thereafter and initial rent at the rate of Rs. 20/- per month, payable in the year 1971, was enhanced to Rs. 40/- per month, as such, from the pleadings of the parties it is clear that infact a piece of land was let out, and not the building by the plaintiff. 7) Mr. B.P. Nautiyal, learned counsel for the respondent drew attention of this Court to Section 29-A of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short U.P. Act No. 13 of 1972), and argued that after the lessee raised constructions, with the permission of the lessor, it amounts to letting out of a building to the lessee. Perusal of Section 29-A shows that it provides protection against eviction to certain classes of tenants of land on which a building exists. Sub-section (1) of Section 29-A provides that in the definition of ‘tenant’ 7 and ‘landlord’ given in Section 3, word ‘land’ shall be read in place of word ‘building’. Sub-section (2) of Section 29-A clarifies that this Section (section 29-A) applies only to the land let out on which the tenant has with the consent of the landlord erected permanent structure and incurred expenses. But, the contention of learned counsel for the respondent-landlord (plaintiff) is of no help to him as what has been pleaded by the plaintiff in the plaint, cannot be ignored. In Para 3 of the plaint it is specifically stated by the plaintiff that since the plaintiff is a charitable and religious society, as such, provisions of U.P. Act No. 13 of 1972, are not applicable to it. It is relevant to mention here that Section 2(bb) provides that nothing in U.P. Act No. 13 of 1972 is applicable to a building which belongs to or vested in a public charitable or public religious institution. In the opinion of this Court, the plaintiff- landlord cannot be allowed to blow hot and cold together. On one hand it has been specifically pleaded in the plaint that the provision of the Act is not applicable to it, on the other hand, he wants to take benefit of provisions of Section 29-A of the Act. 8) On behalf of the respondent-landlord it is argued that plea of jurisdiction was not taken by the tenant before the trial court, as such, it is not open for the petitioners (tenant) to raise objection as to jurisdiction at this stage. Perusal of the impugned order dated 03.08.2005, passed by the revisional court (Addl. 8 District Judge / F.T.C. 6, Dehradun) in S.C.C. Revision No. 83 of 2001, shows that the revisionist (tenant) had raised point of jurisdiction before said court which was rejected by the revisional court on the ground that it was not raised before the trial court. The judgment and decree dated 24.11.2001, passed by the trial court [Judge, Small Causes Court / Civil Judge (Senior Division) / F.T.C. 12, Dehradun], passed in S.C.C. Suit No. 43 of 1996, shows that point of determination / issue No. 4 relates to the maintainability of the suit filed by the plaintiff, as such, in the opinion of this Court it cannot be said that the objection as to the maintainability of the suit was not raised on behalf of the tenant before the courts below. 9) For the reasons as discussed above, the trial court has erred in law in holding that the suit was maintainable before the Judge, Small Causes Court, and the revisional court has also erred in law in upholding said decree. Plaintiff-landlord himself had pleaded before the trial court that the provisions of U.P. Act No. 13 of 1972 were not applicable to him, as such, plaintiff himself has based his suit only on U.P. Amendment made in Article 4 of the Second Schedule of the Provincial Small Cause Courts Act, 1887, which provides that only in respect of eviction of lessee from a building, lessor can maintain suit before the Judge, Small Causes Court. Explanation to Article 4 of Second Schedule inserted through Uttar Pradesh Amendment, 9 quoted above, does not provide that mere letting out of a land, over which building is constructed later by the tenant, amounts to lease of building. Such benefit can be given only to those lessors whose cases are covered under Section 29-A of the U.P. Act No. 13 of 1972. 10) In the above circumstances, the writ petition deserves to be allowed, the same is allowed. The impugned judgment and order dated 03.08.2005, passed by the revisional court (Addl. District Judge / F.T.C. 6, Dehradun), in S.C.C. Revision No. 83 of 2001, and order dated 24.11.2001, passed by the trial court [Judge, Small Causes Court / Civil Judge (Senior Division) / F.T.C. 12, Dehradun], in S.C.C. Suit No. 43 of 1996, are hereby quashed so far the same relate to the decree of ejectment and affirmation thereof. However, the amount deposited by the tenant (present petitioners) may be withdrawn by the landlord (present respondent). It is further observed that it would not affect the right of the plaintiff to seek the remedy available to him by filing a regular suit. No order as to costs. (Prafulla C. Pant, J.) Dt. August 18, 2009. H. Negi