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 lan

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