Second Appeal No. 2355 of 1983. Case: Sunder Lal Bhatia Vs Onkar Nath Saxena and Others. High Court of Allahabad (India)
| Case Number | Second Appeal No. 2355 of 1983 |
| Counsel | For Appellant: K. M. Dayal, A. K. Saxena, Atul Dayal, D. V. Jaiswal, S. C. Verma, Satyendra Kumar Singh and V. K. Saxena, Advs. and For Respondents: P. N. Saxena, H. S. Nigam, Krishna Mohan, Tulika Prakash and Shad Khan, Advs. |
| Judges | Sudhir Agarwal, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Rule 11; Transfer of Property Act, 1882 - Section 108(p); West Bengal Premises Tenancy Act, 1956 - Section 13(1)(b) |
| Citation | 2013 (4) ADJ 695 |
| Judgement Date | March 18, 2013 |
| Court | High Court of Allahabad (India) |
Judgment:
Sudhir Agarwal, J.
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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. 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?
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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 impleaded 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.
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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.
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The Trial Court framed 11 issues and relevant issues 1, 2, 3, 4 and 6 are as under:
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Whether the disputed construction on the land in suit are permanent structures?
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Whether the disputed construction on the land in suit have been raised with the permission of the plaintiff?
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Whether the plaintiff had permitted that the defendants would not be evicted till the structure raised on the suit land exist?
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Whether the defendants tenancy is protected under U.P. Act No. XIII of 1972? If so its effect?
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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?
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Issue 1 was decided by...
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