A.N Verma, J.:— In Model Town, Ghaziabad, there is a Kothi No. 168 (new No. 84) belonging to the plaintiff-respondent Smt. Persandi Devi. In the southern part of this Kothi there was some vacant land measuring 10 towards the East, 11 towards the West, 28 towards the North and 28 towards the South. This vacant piece of land was let out to the defendant-appellant on a monthly rental of Rs. 29 under a rent deed dated 8-11-1966. The present suit is for the eviction of the defendant-appellant from this land. Though filed in the year 1971 it has not terminated even after the lapse of nearly two decades. Both the courts below have accepted the claim of the plaintiff-respondent and decreed the suit holding that, firstly, the tenancy of the defendant-appellant was validly determined and, secondly, that, in any case, he has illegally sublet the tenanted property to the second defendant Kunj Behari Lal. The second appeal was admitted in the year 1980 and it has taken ten years for that appeal to come up for hearing. It is, however, unnecessary to dilate further on how claims which are perfectly legitimate and validate frustrated by the Laws' delays. Indeed, the lady who filed the suit could not live long enough to see the end of this litigation in her lifetime. She died during the pendency of this appeal.

2. The plaint case is very simple. It was that the aforesaid open peice of land was let but to the defendant No. 1 the appellant in this court, under the aforesaid rent deed in the year 1966. In breach of the terms of the rent deed, the defendant. No. 1 sublet the land to the second defendant. Consequently by means of a notice under Section 106 of the Transfer of Property Act served on the defendant-appellant on 24-8-1971 the plaintiff determined his tenancy and asked him to vacate the dsiputed land. The defendant appellant neither vacated the land nor paid the arrears demanded under the notice and, therefore, the suit. The relief claimed in the suit was for possession after the eviction of the defendant-appellant from the disputed land after the removal of the constructions unauthorisedly made by the defendant-appellant. The defendant appellant alone contested the suit. His defence was that he had not sublet any portion of the disputed land to the second defendant; that as there is a pucca shop existing over the disputed land, the suit is covered by the provisions of U.P (Temporary) Control of Rent and Eviction Act and is consequently liable to be dismissed on that ground alone.

3. The plaintiff filed a replication denying the allegations contained in the written statement of the defendant-appellant. In the replication it was reiterated that what was let out was an open piece of land. Under the rent deed, the defendant was authorised to put up only a temporary Chhappar supported by 4 or 5 pillars. The existence of this Chhappar would not attract the application of the aforesaid Act.

4. On the pleadings of the parties, several issues were framed by the trial court. The first and second issues are material for our purpose and the same read as under:

1. Whether the plaintiff has let out vacant land to the defendant No. 1?

2. Whether the defendant took shop on rent from the plaintiff as asserted in written statement?

5. The sixth issue was—

“Whether Rent Control Act is applicable to the disputed property as asserted in para No. 18 of written statement?”

6. The trial court answered all these issues in favour of the plaintiff and against the defendant-appellant. It held that what was let out to the defendant No. 1 was an open piece of land and not a shop. The U.P (Temporary) Control of Rent and Eviction Act was hence not applicable to the premises in suit.

7. These findings have been affirmed in appeal by the lower appellate court. Aggrieved by the decision of the courts below the defendant filed this second appeal.

8. Though as many as six grounds have been mentioned in the memorandum of appeal, and though five questions were formulated in the memorandum, the learned counsel for the appellant Sri K.S Chauhan confined his submissions only to the points which are being dealt with seriatim herein below.

9. The first point canvassed by Sri Chauhan was that as admittedly a building is standing over a part of the disputed land, the suit could not be filed on the regular side in view of Section 15 of the Provincial Small Cause Courts Act. The submission is devoid of any merit.

10. Both the courts below have concurrently held on a careful and exhaustive consideration of the oral and documentary evidence existing on the record, including the admissions made by the defendant-appellant on various occasions as also a clear and categorical recital in the rent deed itself, that what was leased to the defendant-appellant was an open piece of land with no constructions existing thereon. The defendant was, however, given leave under the rent deed to raise a few pillars for the support of a temporary Chhappar (thatch) in a corner of the land. That, however, did not detract from the fact that the lease in question was in respect of an open piece of land. With regard to this finding the learned counsel for the appellant made no attempt to challenge the correctness of the conclusion reached by both the courts below. I have examined the finding recorded by both the courts below on this issue and see no ground whatever to disturb the same.

11. With this premise I proceed to examine the correctness of the submission of the learned counsel. Section 15 as amended in its application to the State of Uttar Pradesh reads as follows:

“15. Cognizance of suits by courts of small causes.—(1) A Court of Small causes shall not take cognizance of the suits specified in the second Schedule as suits excepted from the cognizance of a Court of Small Causes.

(2) Subject to the exceptions specified in that schedule and to the provisions of any enactment for the time being in force, all suits of a civil nature of which the value does not exceed (two thousand rupees) shall be cognizable by a Court of Small Causes.

(3) Subject as aforesaid, the State Government may, by order in writing direct that all suits of a civil nature of which the value does not exceed three thousand rupees shall be cognizable by a Court of Small Causes mentioned in the order-U.P Act 14 of 1970, Section 6 (8-4-1970) and U.P Act 37 of 1976, Section 29 (1-1-1977).”

Provided that in relation to suits by the lessor for the eviction of a lessee from a building after the determination of his lease, or for recovery from him of rent in respect of the period of occupation thereof during the continuance of the lease, or of compensation for use and occupation thereof after the determination of the lease, the reference in this sub-section to three thousand rupees shall be construed as a reference to five thousand rupees.

Explanation.—For the purposes of this sub-section the expression ‘building’ has the same meaning as in Article 4 in the Second Schedule U.P Act 37 of 1972, Section 2 (20-9-1972) and U.P Act 57 of 1976 Section 29 (1-1-1977).”

12. I turn now to the second schedule referred to under sub-section (1) of Section 15. The relevant article under this schedule is Article (4) which in its application to this State reads as follows:—

“(4) a suit for the possession of immovable property or for the recovery of an interest in such property, but not including a suit by a lessor for the eviction of a leassee from a building after the determination of his lease, and for the recovery from him of compensation for the use and occupation of that building after such determination of lease.

Explanation.—For the purposes of this Articles the expression ‘building’ means a residential or non-residential roofed structure, and includes any land (including any garden) garages, outhouses, appurtenant to such building, and also includes any fittings and fixtures affixed to the building for the more beneficial enjoyment thereof” U.P Act 37 of 1972, Section 4 (20-9-1972).

13. It will thus be seen that what has been excepted from this Article is a suit by a lessor for the eviction of a lessee from a building after the determination of his lease. It is, therefore, only that suit which is in respect of a lease of a building as defined under the Explanation to Article (4) quoted above of which cognizance can be taken by a Court of Small Causes. Where, as here, the lease is not of a building but an open piece of land neither Article (4) nor Section 15 shall apply. The suit was hence rightly filed in and tried on the regular side by the learned Munsif.

14. That brings me to the next contention which centres round the notice under Section 106 of the Transfer of Property Act served on the defendant-appellant by the plaintiff. Relying on a few decisions of this court, the learned counsel for the appellant submitted that the notice in question purported to terminate the tenancy of the appellant in presenti i.e with immediate effect whereas under the law the tenancy of the appellant could not be determined except on the expiry of thirty days of the date of the service of notice.

15. The submission proceeds on a misrepresentation of the notice in question. The notice does not determine the tenancy of the appellant in presenti. It states that contrary to the terms of the rent deed the defendant No. 1 has sublet the land to the second defendant and, consequently, the lessor does not desire to continue the tenancy of the appellant. Accordingly, the notice under Section 106 of the Transfer of Property Act is being given to the appellant. The notice then goes on to state that within thirty days of the period of notice, the defendant-appellant may handover vacant possession to the lessor, namely, the plaintiff. It is difficult to see how such a notice could be construed as a notice determining the tenancy of the lessee in presenti. In the decisions cited by the learned counsel for the appellant, the terms of the notice differed from those of the present notice. Upon the terms of those notices the learned Judges held that the same were invalid as they purported to determine the lease in presenti. Those decisions are hence plainly distinguishable.

16. Lastly, learned counsel made a feeble attempt to press in aid Section 29-A of U.P Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. This provision was not invoked by the defendant-appellant in either of the two courts below. As the provision rests on the existence of certain state of facts the same cannot be permitted to be raised for the first time in second appeal. I am, however, not resting my judgment on this technicality. The learned counsel did not dispute that for protection under Section 29-A the tenant has to take steps contemplated under sub-sections (4), (5) and (6) of Section 29-A. The learned counsel further did not dispute that in the present case the defendant-appellant did not take any such steps. Section 29-A hence cannot be pressed in aid, in any view.

17. Before concluding, I may mention that an equally feeble attempt was made by the learned counsel to challenge the correctness of the findings of the courts below on the issue of sub-letting. He was, however, not able to point out any error, muchless a substantial error, in the concurrent finding recorded by both the courts below that the defendant No. 1 has sublet the land to the second defendant. In any case, the question whether the defendant No. 1 sublet the disputed land to the defendant No. 2 is of academic importance only in view of the fact that the suit was entitled to succeed without proof of subletting because what was let out was only an open piece of land.

18. No other point was urged in support of this appeal. In the result, the appeal fails and is dismissed with costs to the plaintiff-respondents.

19. Appeal dismissed.