Hon’ble Sudhir Agarwal, J.—Heard Sri Atul Dayal, learned counsel for the appellant and Sri Shad Khan, Advocate holding brief on behalf of Sri Tulika Prakash, learned counsel for respondents.

2. The following substantial questions of law were formulated by this Court while hearing this appeal under Order 41 Rule 11 C.P.C. which have to be answered by this Court:

(I) Whether the construction raised by appellant on the land in dispute is permanent structure within the meaning of Section 29-A(2) of U.P. Act No. 13 of 1972?

(II) Whether the construction aforesaid was raised with the consent of landlord?

3. Smt. Kamla Devi instituted Original Suit No. 633 of 1996 in the Court of 8th Additional Munsif, Kanpur. Sri Sundar Lal Bhatia and Sri Motiram Bhatia were impleaded as defendants. It was in respect to Plot No. 110/183, Ram Krishna Nagar, Kanpur. The two defendants were in joint tenancy of aforesaid accommodation. During pendency of suit, Smt. Kamla Devi died and thereafter her husband and other heirs and legal representatives were impladed as plaintiffs No. 1/1 to 1/3. The plaintiff prayed for a decree for ejectment of defendants and recovery of arrears of rent, mesne profits, damages etc.

4. The suit was contested by defendants on various grounds including that the accommodation was a plot and taken on rent for the purpose of putting a permanent structure thereon to run a restaurant and a motor truck repair workshop. The permanent structures were put up, on a considerable cost, with concurrence, consent and knowledge of plaintiff and her husband. The default in payment of rent was also denied and referring to Section 29-A of U.P. Urban Building (Regulations of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the “Act, 1972”) it was pleaded that defendants are protected thereunder and cannot be evicted.

5. The Trial Court framed 11 issues and relevant issues 1, 2, 3, 4 and 6 are as under:

“1. Whether the disputed construction on the land in suit are permanent structures?

2. Whether the disputed construction on the land in suit have been raised with the permission of the plaintiff?

3. Whether the plaintiff had permitted that the defendants would not be evicted till the structure raised on the suit land exist?

4. Whether the defendants tenancy is protected under U.P. Act No. XIII of 1972? If so its effect?

6. Whether the defendants are entitled to rent under Section 29-A of U.P. Act No. XIII of 1972? If so what shall be the rate of rent?”

6. Issue 1 was decided by holding that Gumti and restaurant etc. constitute a temporary structure. The Court also held that all these constructions were raised without any consent or permission of landlord, i.e., plaintiff or her husband or of Sri Raghunath Sahai, earlier owner, as pleaded by defendants.

7. Issue 2 was decided against tenants holding that in case of default in payment of rent they can be evicted and protection of Act, 1972 was inapplicable. While deciding issues 3 and 5, the default in payment of rent was also held in affirmance and against tenants. Consequently, the Trial Court, i.e., 8th Additional Munsif, Kanpur decreed suit vide judgment dated 18.10.1982. The defendants-tenants’ Civil Appeal No. 758 of 1982 has also been dismissed by Lower Appellate Court, i.e., 12th Additional District Judge, Kanpur vide judgment dated 6.10.1983.

8. In order to answer question 1, the nature of construction found at the site as noticed in judgment of Lower Appellate Court need be seen. As per plaintiffs’ own version, i.e., as deposed by Sri Onkar Nath, PW-1, husband of Smt. Kamla Devi, there was a tin shed and wooden shed covered with Asbestos sheet and a small Gumti covered with tin shed. The defendant, Sundar Lal, examined himself and stated that walls are not wooden but made of bricks, roof of tin shed and doors are wooden. Ultimately, on this aspect, the Court below obtained Commissioner’s report, i.e., Paper No. 63-C. He gave details of construction, reporting that