Ram Sahai (Died) And... v. Khudaband Karim Jall...

1. 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.

2. 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 plaintiff's 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.

3. 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 of 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.

4. 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.

5. 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 mat the said recitals clearly indicated that what was let out to the defendant was some sort of construction in the form of a building.

6. 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 believed that the defendant set up some kind of shelter over the land so taken supported from the wall of the mosque.

7. A reference to the repairs of the walls of the mosque in the recitals of the rent note being the responsibility of the Mutwalli who was the lessor appears to have been introduced as a matter of extra caution in the interest of the lessee that if any damage was done by the use and occupation of the piece of land by the lessee he would not be responsible for it but it would always be the lessor's responsibility; it cannot be interpreted or construed from the said recitals that the wall of the parapet of the mosque was leased out to the defendant. The oral testimony of the defendant that there was some kind of structure standing on the land from long before he took it on rent has been disbelieved. The evidence on behalf of the plaintiff that the structures on the land were raised by the defendant at his own cost and belonged to him has been believed. It has not been shown on behalf of the defendant-appellant that the learned Judge of the lower appellate court has misread or mis-construed the oral evidence or omitted from consideration any other relevant piece of evidence, oral or documentary.

8. The learned counsel for the appellant then fell back on an argument which was not raised in the courts below that the ‘Chabutra’ let out would answer the definition of the word ‘accommodation’ under the U.P Act, III of 1947. A reference was made to the case of State of Bombay v. Venkata Rao Krishna Rao, AIR 1966 SC 991 in support of the proposition that a mere Chabutra or a compound would be a building. I do not think the learned counsel can derive any assistance, whatsoever, from the ratio of the decision of the case cited. The learned Judges of the Supreme Court on the facts of the case before them and on the law applicable held on the peculiar provisions of the Statute which they were considering that Chabutras were building within the meaning of that Statute.

9. In the instant case what has been described as the Chabutra in the rent note has been found on evidence to be merely a Kutcha raised platform and nothing more. It cannot, therefore, be said to be more than a mere open piece of land. There is good authority for the proposition that the word ‘accommodation’ as defined under U.P Act III of 1947 connotes some form of structure which has a roof and walls fit to be used as a residence by a human being or for carrying on any trade, business, or industry by him in it. The word ‘building’ used in the definition is the crucial word and it is not every kind of structure that has been built by human labour which is included in the definition.

10. I have no hesitation in holding that the word ‘building’ as used in the said definition should be given a limited meaning and a content which would be consistent with the main object of the Act enacted for controlling the letting out of accommodation in highly populated urbanised areas. There is no denying the fact that in highly urban centres the only two kinds of accommodations which exist are residential and commercial, that is to say, houses for a human being to reside and houses where he will carry on his commercial activities, like running of offices, workshops, factories, social, cultural and educational institutions and so on. I am, therefore, not inclined to give a meaning to the word ‘building’ used in the definition which will include in its scope any kind of structure built by human agency.

11. I would hesitate to include a mere open Chabutra or platform as covered by the definition of ‘accommodation’ under U.P Act III of 1947. Of course it would be entirely another question if an open platform or Chabutra is appurtenant to a building used for residential or non-residential purposes. Then it would be a part of the accommodation and included in the definition of the word ‘accommodation’.

12. I am clear in my mind that any piece of open land leased out though with the above object of permitting the lessee to raise his own constructions thereon at his own cost on the condition to remove the same whenever the lease is resumed by the lessor, would not convert the open piece of land demised into ‘accommodation’ within the meaning of U.P Act III of 1947. I agree with the view of the learned Judge of the court below that on the material on record what was let out to the defendant was an open piece of land and not an accommodation within the meaning of Act III of 1947.

13. No other point has been urged in support of the appeal.

14. I do not find any force in this appeal and dismiss it with costs.

15. Appeal dismissed.