1. This is a plaintiffs second appeal in a suit for ejectment filed by him in respect of a piece of land in which the lower appellate Court has given the benefit of Section 29-A to the tenant and has dismissed the suit.

2. The relevant facts are that under a rent note of 1965, the plaintiff let out a piece of land to the defendant at the rate of Rs. 108/- per month. In December, 1973 a part of the land was surrendered by the defendant and in the remaining land, the defendant became tenant at the rate of Rs. 80/- per month only. Since he failed to pay the rent from 1-1-1974, a demand notice coupled with a notice under Section 106 of the Transfer of Property Act was given and the suit was filed. In defence, it was pleaded that the tenancy was in respect of building and not for the land only; that no part of the land was ever surrendered and the plaintiff had illegally occupied a portion of the land let out to him and that rent was not in arrears as the entire rent up to 30th June, 1974 stands paid up.

3. On the evidence recorded by the trial Court, it came to the conclusion that only an open piece of land was let out in 1965 for carrying on the business of fuel wood depot by the defendant and at that time no constructions existed on the land; the tenancy was only in respect of the land and the constructions that exist now were raised by the defendant himself; since U.P Act No. 13 of 1972 did not apply, plaintiffs suit was decreed. The Court also recorded a finding that the defendant was in arrears and had committed default in payment of rent.

4. The defendant appealed but during its pendency, U.P Act 13 of 1972 was amended as from 5th July, 1974 by U.P Act No. 28 of 1976. Section 29-A, amongst other provisions, was introduced giving benefit to certain class of tenants of land only under specified circumstances. The defendant accordingly made an application and prayed for being relieved against eviction. The application was considered by the Court below on 3-2-1977 and thereafter on 11-3-1977 it framed two new issues which were sent down to the trial Court for its findings. These issues were:

1. Whether the constructions standing over the land in question are of permanent nature?

2. What is the market value of the land in suit?

5. The parties were also permitted to lead fresh evidence on them. In the trial Court, the parties filed some documentary evidence and also adduced additional oral evidence on the points remitted to it. The Court also obtained Amin's report 20-C on the record about market value of the land in question. On this evidence, the Court found that the constructions were not of a permanent nature, and the rent according to the then market value of the land was Rs. 300/- per month. When the trial Court finding came up before the appellate Court, it disagreed with them and it came to the conclusion that the value of the land was only so much as would fetch no more than Rs. 80/- per month on the criteria laid down in section 29-A. The Court also gave benefit of section 29-A to the defendant and allowed his appeal. It is against this decision that the present second appeal by the plaintiff is directed.

6. Learned counsel for the appellant has raised several questions of law. According to him, the defendant was not entitled to claim benefit of section 29-A as he had committed default also in payment of rent and the finding of the trial Court in that behalf had not reversed by the Court below. Also the conditions of section 29-A had not been satisfied. Contrary to the provisions of section 29-A, the Court had erroneously made even the costs of the suit easy. It was also urged that the findings of the trial Court regarding the present market value of the land had been reversed on a misreading of evidence on the record and finally that the structures were only temporary and these could not be regarded as permanent. Since the last two points raised are not pure questions of law I would deal with the remaining three questions in the first instance.

7. It is not now disputed that initially only open land had been let out to the defendant and whatever constructions exist today were not raised by the plaintiff. The defendant claimed benefit of section 29-A and we must, therefore, examine whether the defendant was entitled to do so and if so if he had complied with the requisite conditions. It would be relevant here to have a look at Section 29-A which is extracted hereunder:

“29-A. Prosecution against eviction to certain classes of tenants of land on which building exists. — (1) For the purposes of this section, the expressions ‘tenant’ and ‘landlord’ shall have the meanings respectively assigned to them in clauses (a) and (j) of Section 3 with the substitution of the word ‘land’ for the word ‘building’.

(2) This section applies only to land let out, either before or after the commencement of this section, where the tenant, with the landlord's consent has erected any permanent structure and incurred expenses in execution thereof.

(3) Subject to the provisions hereinafter contained in this section, the provisions of Section 20 shall apply in relation to any land referred to in sub-section (2) as they apply in relation to any building.

(4) The tenant of any land to which this section applies shall be liable to pay to the landlord such rent as may be mutually agreed upon between the parties, and in the absence of agreement the rent determined in accordance with sub-section (5).

(5) The District Magistrate shall on the application of the landlord or the tenant determine the annual rent payable in respect of such land at the rate of ten per cent per annum of the prevailing market value of the land, and such rent shall be payable, except as provided in sub-section (6) from the date of expiration of the term for which the land was let or from the commencement of this section, whichever is later.

(6)(a) In any suit or appeal or other proceeding pending immediately before the date of commencement of this section, no decree for eviction of a tenant from any land to which this section applies, shall be passed or executed except on one or more of the grounds mentioned in sub-section (2) of Section 20, provided the tenant within a period of three months from the commencement of this section by an application to the Court, unconditionally offers to pay to the landlord, the enhanced rent of the land for the entire period in suit and onwards at the rate of ten per cent per annum of the prevailing market value of the land together with costs of the suit (including costs of any appeal or of any execution or other proceedings).

(b) In every such case, the enhanced rent shall, notwithstanding anything contained in sub-section (5), be determined by the Court seized of the case at any stage.

(c) Upon payment against a receipt duly signed by the plaintiff or decree-holder or his counsel or deposit in Court of such enhanced rent with costs as aforesaid being made by the tenant within such time as the Court may fix in this behalf, the Court shall dismiss the suit, or, as the case may be discharge the decree for eviction, and the tenancy thereafter, shall continue annually on the basis of the rent so enhanced.

(d) If the tenant fails to pay the said amount within the time so fixed including any extended time, if any, that the Court may fix or for sufficient cause allow the Court shall proceed further in the case as if the foregoing provisions of this section were not in force.

(7) The provisions of this section shall have effect, notwithstanding anything to the contrary contained in any contract or instrument or in any other law for the time being in force.

Explanation — For the purposes of sub-section (6) where a case has been decided against a tenant by one Court and the limitation for an appeal therefrom has not expired on the date immediately before the commencement of this section, this section shall apply as it applied to pending proceedings and the tenant may apply to that Court for a review of the judgment in accordance with the provisions of this section.”

8. Before the Rent Acts were applied, a landlord was free to evict a tenant after simply terminating his tenancy by serving a notice under Section 106 of the Transfer of Property Act. This unrestricted right was taken away and the same has since been limited to only a few grounds as were mentioned in U.P Act 3 of 1947. These grounds were substantially amended and further limited when U.P Act 13 of 1972 was enforced. However, in both these Acts, tenancies in respect of open land were not covered. For the first time, by U.P Act No. 28 of 1976 the tenancies in respect of open pieces of land were also brought within the ambit of Rent Act restrictions but it was limited to those specific cases where the tenant had also raised constructions incurring expenses thereon with the permission of the landlord.

9. Section 29-A can apply to tenancies where (i) only land had been let out to the tenant, (ii) the tenant had raised permanent structures over it, (iii) this was done with the landlord's consent, and (iv) the tenant had incurred expenses in raising such structures. When these pre-conditions are satisfied then neither a pending suit for eviction from such land can proceed nor any decree already obtained in such a case can be executed provided other conditions laid down in sub-section (6) were satisfied.

10. In the present case it is no longer in dispute that only land had originally been let and the structures have been raised by the tenant with the consent of the landlord. Apart from the question whether the Act would apply in the present case or not, the other points in dispute are whether the structures are permanent; whether tenant incurred expenses in its execution and whether requisite conditions for claiming benefit granted by Law under this section could be availed of by the tenant in the facts of the present case.

11. Let us first consider the general scheme of this section. Now, with the introduction of section 29-A, all pending suits for eviction, at whatever stage these may be, as also in pending execution proceedings in such suits, the benefits that have been bestowed upon the tenants to escape from liability of eviction can be claimed only after compliance of the conditions laid down thereunder, i.e by making an unconditional offer in writing within three months of enforcement of the new section to pay; (i) enhanced rent for the land for the entire period in suit and onwards; (ii) this has to be calculated at 10% of the present market value of the land; and (iii) costs of the suit etc. After this has been done the Court seized of the matter shall determine the present market value of the land which is subject of dispute in order to determine the rate of rent payable by the tenant. On deposit in Court or on payment of all such amount to the decree-holder the tenant shall be relieved against eviction subject to his paying the enhanced rent as determined. If the tenant fails to pay the amount as directed he shall forfeit his right to the benefit. This in short is the scheme of the section.

12. Before taking up any other question, attention must be directed to the applicability of the section in the first instance. According to the appellant, sub-section (6)(a) excepts all such cases which would be covered by any ground mentioned in section 29(2) of the Act. It will be seen that by sub-section (3) provisions of section 20(2) have been made applicable to suits for eviction of tenants from land also by replacing the word ‘building’ by the word ‘land’. As a result the landlord's right to eject a tenant of land also will not totally be uncontrolled. Now such a tenant could only be sued for eviction if any one or more of the grounds mentioned in Section 20(2) exist i.e default sub-letting, denial of title etc.

13. It is contended that even in the case of land to which Section 29-A applies, the benefit of the section cannot be claimed by the tenant if the suit was also founded on one or more of the grounds mentioned in Section 20(2) of the Act. This would be so in spite of tenant complying with all other conditions requisite for getting benefit of this section.

14. On the other hand, Sri N. Lal for respondent tenant contended that all tenants of land to which this section applies stood relieved against eviction automatically and only in those cases where there was an additional ground of eviction as contemplated by section 20(2) that the tenant was required to make the offer of paying enhanced rent and cost etc. as required by latter part of sub-clause (6).

15. A close reading of this sub-clause will show that respondent's submissions are not at all sound. What has been left out from purview of this sub-clause are cases of ejectment from land where, in addition to termination of tenancy simplicitor the suit was also founded on at least one of the grounds mentioned in Section 20(2). Thus, where the tenant of land was guilty of committing any act as enumerated in Section 20(2), he would be deprived from the benefit of Section 29-A.

16. The expression “except on one or more of the grounds mentioned in sub-section (2) of Section 20” indeed qualifies the expression “no decree…..shall be passed or executed” occurring just before the former. The proviso does not apply to the exception made in the section but only to the main provision prohibiting the passing of decree for eviction or its execution. In fact the sub-clause (6), when shorn of unnecessary portions and when placed in a simpler form, would read as under:

“In any suit…pending immediately before the date of commencement of this Section, no decree………. shall be passed or executed, provided the tenant within a period of three months………by application …… unconditionally offers to pay……except where the suit was based on…….grounds mentioned in Section 20(2)”.

17. This, in my opinion, would be the proper construction of this provision.

18. Sub-section (6)(a) not only bars the passing of a decree in a pending suit for eviction from land but even execution of a previously obtained decree is also prohibited. This bar is, however, subject to an exception that it shall not apply where the suit or decree was in addition based on one of the grounds mentioned in Section 20(2).

19. Section 20 applies to tenancies in respect of buildings and the Act while taking away the general right of a landlord to file a suit to evict his tenant has made an exception and this general right to evict has been limited to cases of those tenants who may be guilty under any of the various sub-clauses of sub-section (2) thereof. Similar considerations appear to have guided the legislature while enacting S. 29-A. It appears to me that legislature has purposely left out from the purview of section 29-A those tenants who would otherwise be liable to ejectment on any of the grounds mentioned in section 20(2). Such a tenant of land could not be better placed than a tenant of building. Apart from the conceivable intention of the legislature not to place the tenants of only land on a higher pedestal than a tenant of building, there seems to be no logical basis to drive the landlord to another suit on the ground mentioned in Section 20(2) when the same relief could be granted in the pending suit itself. If such a ground could be pressed into service in that very suit there could be no conceivable reason to make the pending suit or execution proceeding unproductive and sending the plaintiff to Court once again. I find it difficult to agree with the submission made on behalf of respondents that the conditions imposed by latter part of sub-clause (6)(a) were only to be enforced when the suit for ejectment from the land was founded on the grounds given in Section 20(2). In fact, if the tenant of land was guilty of having committed default in the payment of rent or of any other ground given in Section 20(2) then such a tenant did not deserve to be relieved against ejectment. Even according to respondent's submission the landlord could still file another suit for ejectment on the basis of such default in view of sub-clause (3) of Section 29-A. Thus, all this exercise would merely result in multiplication of proceedings and unnecessary prolongation of litigation. It is to prevent this mischief that the above exception appears to have been introduced in sub-clause (6)(a). Therefore, where any of the grounds for eviction enumerated in Section 20(2) exists, Section 29-A would not apply to such pending suit and the landlord can continue to proceed with his suit on such a ground provided of course the other conditions are also satisfied. If the suit was based only on simple termination of tenancy, it may be possible for the tenant to avail the benefit after complying with the provisions of Section 29-A of the Act.

20. Thus the legislative intention appears to be only to relieve the tenants from eviction without at the same time causing disproportionate hardship to the landlord. The proviso primarily attempts to bring about a balance between the advantage granted to a tenant of land on the one hand and the landlord on the other who may be deprived of the fruits of his decree or the pending suit for eviction with all the expenses already incurred. The valuable right which had accrued to the landlord could not just be wiped out simply by snatching away from him with one stroke his right to proceed with the suit or to execute the decree previously obtained by him. The legislature in its wisdom must have thought it equitable to restore at least some benefit to the plaintiff, a kind of solatium, to counter balance the benefit granted to the tenant. It is on these equitable considerations that conditions regarding payment of arrears, enhancement of rent and payment of costs etc. have been laid down before the tenant could be relieved against his eviction from the land, the subject of his tenancy.

21. Even according to section 20(4) a tenant of building could save his tenancy by tendering to the landlord or by making deposit of the entire amount of rent and damages together with interest and cost of the suit in the Court on the first date of hearing. It could never have been the intention of the legislature to put the tenant of open land on a higher footing and, therefore, sub-section (6) must be interpreted in that light.

22. According to the learned counsel, the proviso is meant to apply to those cases in which tenant of land had committed default prior to the suit and such tenant was given the opportunity of saving his tenancy by offering to pay the rent etc. within the time specified in this sub-section. This argument does not appeal to me at all. It will be found that sub-section (3) of Section 29-A makes Section 20(2) applicable to every case of eviction from land to which this section applies subject to other provisions mentioned thereafter. Section 20(2) was thus made applicable even in relation to suits for eviction of a tenant from land after determination of tenancy subject to other conditions laid down in Section 29-A. In view of this provision, even in respect of a tenancy of land where a suit is founded on previous default committed by a tenant, sub-section (3) of Section 20 would apply and in such a case, if the tenant wanted to save his tenancy for any default committed by him it may be open to him to save his tenancy by complying with the provision of sub-section (4) of Section 20. To do so he may deposit the entire rent in arrear along with interest etc. and thus save his tenancy.

23. It is pointed out by Sri N. Lal that the benefit of sub-section (4) of Section 20 could not be availed by the defendant as the amount is required to be tendered at the first hearing of the suit. This submission also does not appear to be sound inasmuch as the first hearing in the present circumstances could not mean the same thing as mentioned in the Explanation but would mean the first hearing that takes place after U.P Act No. 28 of 1976 was made applicable in respect of tenancy of land. However, without going into the merits or otherwise of this submission, in this case the result would be that the tenant may not be able to avail the benefit of sub-section (6) where the suit for his eviction was founded on the additional ground of default also. Clause (a) of sub-section (6) clearly excepts all these suits for eviction where one or more of the grounds mentioned in Section 20(2) of the Act are also present and all such cases must remain unaffected by the provisions of Section 29-A.

24. From what has been discussed above it would be clear that Section 29-A did not apply in the present case at all and no benefit of the same could be taken by the defendant.

25. It is worth noticing that while giving benefit of this provision to the defendant the Court has proceeded to dismiss the suit even without following the procedure laid down in sub-section (6). In cases where clause (6)(a) was applicable the tenant has to make requisite offer within time whereafter the Court should determine the annual rent payable after ascertaining the present market value of the land as laid down in sub-clause (5). The Court seized of the matter should then ensure that the entire amount as determined at the enhanced rate as determined by it together with costs etc. was either deposited or a receipt duly signed by the plaintiff or the decree-holder or his counsel had been obtained. The power to dismiss the suit can be exercised only after all this had been accomplished.

26. A grave irregularity has been committed by the lower appellate Court in this regard. After determining the rate of rent payable the Court did not bother to ensure payment of the entire amount due and payable or to secure its deposit in court and illegally deprived the plaintiff of the costs of suit even. The lower appellate Court completely ignored the requirements of law that payment of costs of suit also is ‘sine qua non’ and an essential pre-condition before any benefit of the section can be granted to the tenant. It is only when these pre-conditions have been satisfied that the Court should venture to dismiss the suit. What the Court in the present case has done is to deprive the plaintiff of his cost in spite of the fact that law requires that payment of arrears and cost etc. must be ensured by the Court before the suit was dismissed. It is not left to the discretion of the Court whether to award the costs in such a suit or not. Thus there has been a clear violation of this mandatory provision of law.

27. The finding of the Court regarding the present market value of the property also leaves much to be desired. Normally in Second Appeal the Court would not enter into reappraisement of evidence but in this case mis-appreciation of the evidence and misreading of evidence is so obvious that I feel constrained to intervene in the matter. A certified copy of an order of the Court in which the value of the land was fixed at Rs. 300/- per sq. yard was on record. It is not disputed that this was in respect of some land in the same vicinity. No reason have been assigned to disregard that order. The Court has on the contrary relied upon a registered agreement of sale only because it was of a date prior to the date from which the Act came into force. Sale deeds which were of a period just after the date of its enforcement i.e of 18-8-1977 and 24-10-1977 have been rejected. The Court ought to have seen whether the sale consideration as mentioned therein had been in any way affected because of the enforcement of the Act before rejecting the same as unreliable. If the same were otherwise genuine transactions of sale, these ought to have been considered. Besides this, an agreement of sale can never be placed on the same footing as a sale deed particularly when there was no evidence to show that any sale deed came into being pursuant, to the agreement. Apart from this the Court below ignored that there was evidence on the record to show that this agreement was in respect of a disputed property and this must have materially reduced the market price of the same. However, since I have held that benefit of section 29-A was not available to the defendants, it is not necessary for me to ecide this question and I leave it at that.

28. Same is the position about the question whether the structure raised on the land in dispute was permanent. Whether any construction is a permanent structure or not depends upon the facts of each case. It also depends upon the intention with which a structure was raised. If it was intended to be there only temporarily, it may be a temporary structure but if the intent was to enjoy it permanently and the structure is of a substantial nature, it may be regarded as a permanent one. This would again depend upon the kind of material used and the purpose for which it was erected. If it was intended to be used, permanently in the sense that it is intended to be used as long as the owners liked, the structure may be permanent but if it was intended to be used only for a temporary period, the same may be taken to be temporary. Thus much will depend upon the nature and extent of a particular construction and the intention and the purpose for which the construction had been made. Looking to these aspects of the matter, we will notice that here a large piece of land was initially let out to the defendant for the purpose of starting a fuel wood stall. The tenant was specifically permitted to raise constructions which had to be removed by him on the expiry of the term. The map paper No. 55-C filed by the tenant himself shows that the disputed construction is hardly 8′ × 10′ while the total area is 129.64 sq. mts. The boundaries of the land initially let out to him show that there was a wall towards east as well as south. Towards west there existed a pucca shop belonging to Mukhtar Ahmad and on the remaining side i.e north, there was public road. After December, 1973, when portion of the land was surrendered, the changed position was that there was a wall towards east and also towards the south. Towards north public road existed and towards west there were pucca shop of Mukhtar Ahmad besides two shops of the plaintiff. This shows that all around the disputed structure walls of either the plaintiff or of other persons existed and the only construction that might have been raised by the tenant was a small portion of the wall towards the west. On all other sides, there exist pillars only having an opening or gate in between. A small platform like construction used as a seat for defendant's business is also there. In such a large open area, a small construction like this cannot be said to be a permanent structure so as to attract Section 29-A. What appears to be the intention behind Section 29-A(2) is that constructions of a substantial nature must have been raised over a considerable portion of land. This would be obvious from the use of the expression “and incurred expenses in execution thereof” in sub-clause (2) in relation to the permanent structure. What it provides is that beside the construction being permanent the tenant should also have incurred expenses in execution thereof. These words would be meaningless if any structure of howsoever small size were to be treated as ‘permanent structure’ so as to attract the applicability of Section 29-A. That does not appear to be the true intendment of law. It is only in these cases where the land that was let out was substantially covered by constructions of a considerable value that this provision can apply. May be the legislature had in mind a number of Purwas which existed in the towns where the land was let out by Zamindars to poor section of people for raising their residential houses and other constructions on payment of a nominal ground rent. In such cases usually substantial portion of the areas let out is covered by those structures and it was this class of people who were intended to benefit from Section 29-A. The present is not a case falling in that category at all and I cannot agree with the court below that it was a permanent structure to which protection of Section 29-A should be given.

29. In view of what I have found above, the appeal is allowed and it is held that benefit of Section 29-A was not available to the defendant and the plaintiff's suit deserves to be decreed. In the result, the appeal succeeds and is hereby allowed with costs throughout

30. Appeal allowed.