The legality of tenancy termination and the absence of substantial questions of law in the case.

Pramod Kumar Srivastava, J. –

Heard learned counsel for the parties on admission of second appeal and perused the record.

2. Original Suit No. 10/2008 (Dinesh Chandra Khare v. Smt. Sakeena and others) was filed for ejectment and recovery of arrears of rent. The plaint case in brief was that plaintiff is owner of open landed property in dispute, over which the defendants were inducted as tenant. In spite of reminders of payment of rent the defendants had not paid the same, then plaintiffs had served legal notice on defendants by which their tenancy was terminated. In spite of services of notices the defendants had not answered the same and had not vacated the land, then plaintiffs had filed suit for their ejectment from the disputed land and for recovery of arrears of rent.

3. The defendants had denied the plaint averments in their written statements and pleaded inter-alia, that there are tin shed rooms over disputed land which were not shown in tenanted portion of defendant in the plaint. The defendant had offered rent to plaintiffs but they had not received, so the said rent was deposited to the court, which may be withdrawn by the plaintiffs. The disputed property comes under the purview of U.P. Act No. 13 of 1972, therefore suit is not maintainable and is liable to be dismissed.

4. After framing issues and accepting the evidences of the parties, learned Civil Judge (Junior Division), City, Kanpur Nagar, had decreed the suit for the relief claimed in plaint and directed for ejectment of defendants from disputed property and also directed them to pay the arrears of rent and damages for use of an occupation on disputed property. The trial court had given finding to the effect that there is no tin shed room or any other building on disputed property, which is in form of open land; therefore the provisions of U.P. Act No. 1972 are not applicable to it. The trial court has also given finding that when defendants had not given answer to legal notices of plaintiff served on him and had not paid the rent, then their tenancy was terminated legally by the plaintiffs and they are liable to be evicted. The trial court has also given finding that the deposition of rent by defendants in court was made after termination of tenancy. The trial court had also decided that after the termination of notice the defendants are liable to pay the arrears of rent and damages to the plaintiffs.

5. Against the judgment of trial court, two defendants had preferred Civil Appeal No. 102/2015, which was heard and dismissed by the judgement dated 05.12.2015 of Additional District Judge, Court No. 13, Kanpur Nagar. The First Appellate Court had also considered facts and evidences of the case, framed the points on determination and thereafter passed impugned judgement, by which each point of determination was decided against the appellants. The trial court gave its own finding that disputed property is in form on open land over which two tumblers (Naad) used for feeding cattles are present. The first appellate court had also given finding that it is proved that the disputed portion under the tenancy of defendants-appellants has no constructed portion and the tenancy of defendants were rightly terminated by legal notices under Section 106 of the Transfer of Property Act, and alleged rent deposited in Court by the appellant after termination of their tenancy. With these findings, the first appellate court had confirmed the judgement dated 26.11.2013 of trial court and dismissed the appeal with costs.

6. Aggrieved by the judgements of trial court as well as first appellate court, the second appeal has been preferred by the two defendants of the original suit.

7. Learned counsel for the appellants contended that there are evidences of tin shed rooms over the disputed property, for which Commissioner has submitted it's report, which was not considered by the two courts below. He further contended that since the construction over the present land are 'buildings'