JUDGMENT :- This second appeal arises out of a suit for ejectment and recovery of arrears of rent. The suit was decreed by Sri R.P. Nigam, 2nd Additional Munsif, Lucknow and on appeal by the tenant, the trial court's decree was maintained by Sri B.P. Srivastava. Civil Judge Malihabad, Lucknow. The tenant Moinuddin has come up in the second appeal.

2. The facts of the case are briefly these. The appellant was admittedly a tenant of the plaintiff-respondent Choudhry Mohammad Imamuddin Ashraf. A suit for ejectment and recovery of arrears of rent was also filed by the landlord, being suit No.201 of 1962. In that suit the allegation was that the tenancy related to an open piece of land. The tenant pleaded that the rented premises consisted not only of land but also of some roofed constructions on a part of the land and so the U.P. (Temporary) Control of Rent and Eviction Act (hereinafter referred to as the Act) was applicable to the rented accommodation and the suit could not therefore have been instituted by reason of the bar created by Section 3 of the Act. In that suit it was found as a fact by the first appellate court that what had been let out to the tenant was an open piece of land along with a kothri and latrine existing thereupon, and the suit was therefore barred by Section 3 aforesaid. Therefore the suit was decreed for a very small part of the rent claimed, the rest having been held to be paid up. In the second appeal filed by the landlord in this court the matter was ultimately left to the special oath of the tenant who stated on special oath that the tenancy covered a kothri and a latrine. The second appeal was therefore dismissed on 6-12-1966.

The very next day a notice of demand of arrears of rent and ejectment was sent by the landlord to the tenant, but again a fresh notice of ejectment was later given which was served on the tenant on 17-1-1967. The suit under appeal was then instituted on 16th February, 1967 giving out the rented premises to be a piece of land with kothri having five Dars, that is to say, five shutterless doors or gates. The suit for eviction was said to be maintainable on two of the several grounds on which a suit under Section 3 of the Act can be filed without obtaining the permission of the District Magistrate. These grounds were that the tenant had failed to pay the arrears of rent for more than three months to the landlord within one month of the service upon him of the notice of demand and, secondly, that the tenant had, without the permission in writing of the landlord, made constructions which had materially altered the accommodation. A sum of Rs.1,260/-was claimed as arrears of rent and damages for use and occupation recoverable upto the date of institution of the suit.

3. The suit was contested by the tenant. According to him he had not failed to pay the arrears of rent demanded as he had sent the rent both prior to the receipt of the notice of demand and thereafter by money orders but the landlord has refused to accept the same. He also denied having made any such construction as he had materially altered the accommodation. His third plea was that when the first suit for ejectment was filed the premises were in the same condition in which they were when the second suit was filed and because the landlord had not taken the plea in the first suit that the suit was maintainable under Section 3 of the Act because of material alteration in the accommodation, the claim on the basis of material alteration was barred by the rule of constructive res judicata.

4. The position in regard to payment of rent was this. It came to be admitted between the parties that rent which was unpaid by the time the notice dated 7-12-1966 was given, that is to say, rent payable upto the month of November, 1966, amounted to Rs.1,120/-. The notice was received by the tenant on 10-12-1966. The tenant had remitted by money order Rs.490/- on 27-11-1964 and again a similar sum by money order on 9-12-1966. Both the amounts w

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