JUDGMENT :- This is a defendant-tenant's appeal from a decree of his eviction from a piece of land. Admittedly, the land in dispute on which the defendant-tenant operated his oven, was below the parapet of a mosque and formed a part of the waqf property managed by the plaintiff Mutwalli. The defendant had taken a shop below the parapet of the mosque on rent from the Mutwalli of the mosque by an earlier executed rent note. On the south side of his shop there was an open piece of land in the form of a Kutcha platform 10" or 11" high from the road level and extended upto the western parapet wall of the mosque. The defendant-tenant by a separate rent note took this Chabutra on rent for the purpose of keeping an oven. The defendant-tenant fell in arrears and defaulted in payment of rent of the land. The Mutwalli of the mosque then sent a composite notice demanding arrears for four months, asking the defendant-tenant to pay the same within one month of the receipt of the notice and terminating the tenancy on the expiry of one month from the receipt thereof by the defendant.

It is alleged that the defendant did not comply with the notice of demand and did not vacate the premises. The Mutwalli of the mosque then filed a suit for eviction of the defendant-tenant from the land in dispute, for recovery of arrears of rent, mesne profits and damages. Inter alia the defendant contested the suit on the pleas that the provisions of U. P. (Temporary) Control of Rent and Eviction Act, (Act No. III of 1947) were applicable and the plaintiffs suit for eviction was barred, he having complied with the notice of demand of rent by depositing the same under Section 7-C of the said Act on the Mutwalli's refusal to accept the same. It is not necessary in this judgment to refer to other pleas raised in defence.

2. The two main questions that arose for determination at the trial were : (1) whether the defendant had taken on lease an 'accommodation' within the meaning of the U. P. Act III of 1947 and (2) whether the defendant had complied with the notice of demand of arrears or rent and the suit of the plaintiff for eviction of the defendant was barred. The learned Munsif found in favour of the defendant on both the crucial questions and dismissed the plaintiff's suit for eviction of the defendant.

3. On appeal by the plaintiff-Mutwalli the learned Judge of the lower appellate court reversed the findings recorded by the learned Munsif, allowed the appeal decreeing the plaintiff's suit for eviction of the defendant.

4. I have heard the learned counsel for the parties. Even if it be held that the finding of the lower appellate court on the question of compliance by the defendant tenant of the notice of demand can be successfully assailed, that alone could not be destructive of the decree of eviction of the defendant unless the finding on the question whether an 'accommodation' within the meaning of U. P. Act III of 1947 was let out or only an open piece of land was let out, is not successfully assailed. Learned counsel for the defendant appellant laid much stress on the recital in the rent notes to the effect that the Mutawalli was responsible for keeping in good repairs the walls of the mosque and the fixtures therein. He submitted that the said recitals clearly indicated that what was let out to the defendant was some sort of construction in the form of a building.

I have perused the rent notes which are Exhibits 2 and 5 on record. It is clear from a reading of the rent notes that what was let out was an open piece of land described as Chabutra below the mosque. The purpose for which the defendant took the land was to operate an oven thereon. This open space of land was in the shape of a Kutcha raised platform. On the southern side of it was the wall of the shop of the defendant which he had taken on rent earlier through a separate rent note and on the western side of this land was the wall of the parapet of the mosque. It has come in evidence which has been be

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