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Allahbad High Court
M.P.MEHROTRA
Gyasi Ram - Appellant
Versus
Ram Chandra Singh - Respondent
Decided On : 07/06/1977
TENANCY - Permanent Tenancy - Whether the tenancy was a permanent one - Whether the defendant is also liable to be evicted on the ground of his having denied the plaintiff's title in the suit - Whether the defendant is entitled to the benefit of S. 29-A of the new Rent Control Act of 1972.
Fact of the Case:
The plaintiff claimed to be the owner of premises No. 3648-E situated at Sultanganj, Agra whose details are set out in the plaint. It was contended that in the said premises the defendant was the tenant of a thatched Kotha on behalf of the plaintiff. The tenancy also included Sahan on the eastern side of the Kotha. It was a monthly tenancy and the month of tenancy started from the 1st day of each English calendar month. The monthly rent was four annas per month. It was further alleged that the defendant effected material alterations and he encroached upon the plaintiff's land on the eastern side by putting another shed and by opening another door towards the west of the said premises. By a notice dated 6th July, 1961, which was served on the defendant on 18th July, 1961, the plaintiff determined the latter's tenancy and the defendant was called upon to pay the arrears of rent due from him and to vacate the premises after the period of notice. The defendant failed to comply with the notice. Hence the suit.
Finding of the Court:
The courts below have recorded clear finding of fact which cannot be questioned in a second appeal. It has been found by both the courts below that it was a case of monthly tenancy and not the case of a permanent tenancy. Moreover, it has been found that the constructions were not raised with the consent of the plaintiff.
Issues: 1. Whether the tenancy was a permanent one. 2. Whether the defendant is also liable to be evicted on the ground of his having denied the plaintiff's title in the suit. 3. Whether the defendant is entitled to the benefit of S. 29-A of the new Rent Control Act of 1972.
Ratio Decidendi: 1. S. 107 of the T. P. Act is a complete answer to the contention raised on behalf of the defendant-appellant. In view of the first para of the said section which says "a lease of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument" , it is not permissible now to set up a case of permanent tenancy on the basis of oral agreement or under an unregistered instrument. 2. A plaintiff cannot evict his tenant on the basis of the denial of the former's title in the suit itself. The denial of title must precede the suit and in the plaint the plaintiff should set out a ground based on the defendant's denial of his title 3. The defendant-appellant is not entitled to the benefit of S. 29-A of U. P. Act No. 13 of 1972.
Final Decision: Appeal dismissed with costs.
2. The defence was that the defendant had taken only open land and not any Kotha from the plaintiff. The open land was taken for raising permanent constructions. The plaintiff s ownership of 3648-E was denied. It was stated " that some land lying in the Baghichi which was Sahrai was taken by the defendant for raising constructions of permanent nature long ago. The defendant raised previously a kachcha residential house thereon which has now been replaced by a pucca house thereon in or about the year 1961. It is wrong to say that the defendant is a tenant of thatched kotha on behalf of the plaintiff."
3. In para 15 of the written statement the defendant stated that he paid only ground rent to the plaintiff but did not pay any rent in respect of the premises or kotha. The defendant denied that he made any material alteration or encroached upon any land of the plaintiff. In fact, the land was initially taken by him for the purpose of raising constructions of a permanent nature. Therefore, there was no question of making any alteration or doing the same with the consent or permission of the plaintiff. The defendant also claimed that he was a permanent licencee as provided under S. 60 of the Easements Act and the plaintiff was estopped from seeking the defendant s ejectment. The benefit of U. P. Urban Areas Zamindari Abolition and Land Reforms Act was also sought to be taken. Certain other pleas were also taken which, however, it is not necessary to notice in the instant appeal.
4. The trial court framed the necessary issues and tried the suit. It held that the plaintiff was the owner of the premises in question and that it was not only an open land but a kotha and chhapper standing thereon were also let out by the plaintiff to the defendant. The trial court also held that no land on rent was permanently given to the defendant nor was it given for raising constructions of a permanent nature. The relationship of landlord and tenant was held to be proved and it was held that the defendant converted the kachcha structures into pucca constructions and that this was done without the permission of the plaintiff. Certain other alterations were also held to have been made without the permission of the plaintiff. Accordingly, under S. 3 (1) (c) of U. P. Act No. 3 of 1947 (U. P. (Temporary) Control of Rent and Eviction) Act the defendant was liable to be evicted in the suit. The notice was held to be a valid notice and it was held to have been duly served on the defendant. The defence plea based on the U. P. Urban Areas Zamindari Abolition and Land Reforms Act wa
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