JUDGMENT
B.K. Sharma, J.
1. This is a revision against the judgment and decree dated 16.6.1989 passed by Sri S. K. Raturi. the then Judge, Small Cause
Courts III (Additional District Judge) Dehradun in S.C.C. Suit Wo. 43 of 1987, Sardar Ranjit Singh and 2 others v. Smt. Harminder Kaur and 2 others, whereby he decreed the suit of the plaintiff Sardar Ranjit Singh. Sardar Jagir Singh and Smt. Jasbir Kaur against the defendants Smt. Harrninder Kaur, Sardar Tarvinder Singh and Hem Kund Enterprises (through Sardar Tarvinder Singh) for ejectment and recovery of Rs. 1,905.73 arrears of rent and taxes and recovery of damages for use and occupation from the date of the suit, i.e., 24.6.1987 up to the date of ejectment at the rate of 10% water tax at the rate of 12% and Sever tax at the rate of 3% on the amount of damages.
2. The suit had been brought by the plaintiff-opposite parties with the allegations that as per her proposed letter dated 16.12.1985 Ext. 10 (hereinafter referred to as the “agreement”) the defendant No. 1 Smt. Harminder Kaur took the disputed shop which was part of property No. 25 (old No. 3) Saharanpur Road. Dehradun from plaintiffs at the monthly rent of Rs. 375 and also undertook to pay house tax, water tax and the electricity charges as per sub-meters besides the amount of rent, that defendant No. 2 Sardar Tarvinder Singh who was the husband of the defendant No. 1 paid the rent and taxes up to March. 1987 and the electricity charges up to 5.5.1987 to Sardar Iqbal Singh Mukhtar-e-am of the plaintiffs, that the defendant No. 2 had sent the rent of April, 1986 through cheque to Inder Singh but the bank did not encash the cheque for want of the name of the branch of the bank therein, that the disputed shop was a new construction and it was for the first time let out to the defendant No. 1 “Smt. Harminder Kaur on rent and that the provisions of U. P. Act No. 13 of 1972 (hereinafter referred to as the Urban Buildings Act) are not applicable to the disputed shop, that a notice of demand of arrears of rent and of termination of tenancy dated 22.6.1987 was served on defendant Nos. 1 and 2 which was served on 25.6.1987 but the defendant No. 2 did not comply and defendant No. 2 sent a reply setting out that it was the defendant No. 3 who was the tenant, that though the objection of the defendants was baseless, the plaintiffs to avoid unnecessary dispute, sent a second notice on 17.7.1987 to defendant Nos. 1. 2 and 3 about the arrears of rent and for terminating the tenancy, that the notice was personally served on defendant Nos. 2 and 3 on 24.7.1987 but the defendant No. 1 refused to accept the notice sent to her by registered post, that a copy of the notice was also affixed on the disputed shop on 10.8.1987, that despite this notice, the defendants did not vacate the shop but on 27.7.1987 the defendant No. 2 sent a cheque of Rs. 1,200 to Iqbal Singh Mukhtar-e-am of the plaintiffs but it was returned to defendant No. 2. In the suit, the plaintiffs demanded ejectment, arrears of rent and taxes and also damages for use of occupation at the rate of Rs. 15 per day.
3. The suit was contested by the defendant Nos. 2 and 3. It was claimed that no agreement was executed, that the defendant No. 2 was the tenant, that there was an oral agreement with Iqbal Singh, person authorised by the plaintiff, but he was entitled to take proceedings for vacation. It was claimed that the disputed property had been taken on rent for a period of 10 years under which it was agreed that since the tenancy was for a long period, the defendant No. 2 will pay a sum of Rs. 23,000 to the plaintiff Sri Iqbal Singh, that they would not be evicted for 10 years. It was admitted that the rent of the disputed shop was agreed Rs. 375 per month and claimed that Rs. 25 was to be paid as tax. It was claimed that the payment of rent had been made upto May, 1987. It was further claimed that the construction of the disputed property was made before April, 1976 and in these circumstances U. P. Act No. 13 of 1972 applied to it. It was also claimed that the plaintiffs had no right to terminate their tenancy. The defendant No. 1 did not file W.S. despite service of notice. Her husband Tarvinder Singh, defendant No. 2 stated at the trial that she had knowledge of the suit all along.
4. On the pleadings of the parties, the learned Judge Small Causes Court framed the following issues :
(i) Whether, the amount of rent and tax is due on the defendants from 1.4.1987 as claimed in para 3 of the plaint?
(ii) Whether, the provisions of U. P. Act No. 13 of 1972 applied to the disputed shop? Its effect?
(iii) Whether, the disputed shop had been let out for a period of 10 years taking rent Rs. 23,000 as claimed in para 20 of the W.S.? Its effect?
(iv) Whether, notice dated 17.7.1987 sent by the plaintiff’s was invalid inoperative and without authority?
(v) Relief?
5. On Issue No. 1, the trial court held that the plaintiffs received rent upto March. 1987 and that the defendants were liable to pay house tax and water tax as claimed in the plaint. The discussion also showed that the plaintiffs were also held entitled to sever tax as claimed.
6. On Issue No. 2. It was held that the disputed shop has been got constructed by the plaintiffs after the execution of the sale deed 40-Ga (which had been executed on 8.8.1983 and that consequently. U. P. Act No. 13 of 1972 did not apply.
7. On Issue No. 3. It was held that disputed shop was let out on rent only for 11 months and was not let out or 10 years taking the surety amount of Rs. 23.000.
8. On Issue No. 4. It was held that the Mukhtamama by the plaintiffs in favour of Iqbal SIngh which was a registered document Ext. 8 filed on record, was accepted by D.W. 1, Tarvlnder Singh in his cross-examination and that in view of this. U cannot be said that the notice, paper No. 7-C (Ext. 1) was given without authority. He also held that the notice is valid and operative. Consequently, he decreed the suit as aforesaid.
9. During the pendency of this revision, opposite party No. 1 Sardar Ranjit Singh died and opposite party Nos. 2 and 3 sought substitution of opposite party No. 3 in place of opposite party No. 1 and which was accordingly done and the name of Ranjit Singh opposite party No. 1 was accordingly deleted.
10. Heard learned counsel for the revisionists and the learned counsel for the opposite party Nos. 2 and 3.
11. Before we proceed further,.certain admitted facts may be placed on record. It is undisputed before me that Iqbal Singh held general power of attorney in his favour from the plaintiff-opposite party Nos. 1, 2 and 3. The plaintiffs-landlords’ case initially was that the defendant No.l. Srnt. Harvinder Kaur was the tenant of the disputed shop as per her proposal letter agreement dated 16.12.1985. Sardar Tarvinder Singh defendant No. 1 is the husband of defendant No. 2. Smt. Harvinder Kaur and the defendant No. 3 is a firm Hem Kund Enterprises carried on by Sardar Tarvinder Singh in the disputed shop. The disputed shop was taken on rent at Rs. 375 per month by defendant No. 1 Harvinder Kaur from the plaintiffs by the agreement dated 16.12.1985. Under the agreement, a sum of Rs. 23,000 was deposited as a security with the plaintiffs. The tenancy was nevertheless month to month tenancy. The agreement showed the tenancy for 11 months. After the service of the first notice for demand and ejectment dated 22.6.1987, the plaintiffs gave a second notice dated 17.7.1987 to all the defendants treating them to be tenant as claimed by them and so in the suit or in this version before us. there is no controversy that the revisionists were lessees tenants of the disputed shop at the time when the notices were sent to them. Since the second notice was given 17.7.1987, the first notice admittedly got waived. The second notice is, therefore, the only material notice. This notice was sent by the registered post. Its copy is on record. It was served personally on defendant No. 2 and
the notice meant for defendant No. 3 was also received by the defendant No. 2. The notice meant for defendant No. 1 came back with an endorsement of refusal. The trial court held the notices to be served and before me. no challenge has been made to the finding of service of this notice on the 3 revisionists. There is also no challenge made before me to the findings of the Court below that the notice dated 17.7,1987, was valid.
12. The main point on which the judgment of the Court below has been challenged by the learned counsel for the revisionists is that the trial court did not consider the documents Ext. Ka.-4, Ka.-5 and Ka.-6 filed by the defendants-revisionists before it which documents showed that the first assessment of the disputed shop was made by the Nagar Palika, Dehradun in the year 1973 and that in view of the Explanation I to Section 2 (2) of the Urban Buildings Act. the construction of the disputed building shall be deemed to have been completed in the year 1973 and so the disputed shop will fall in the preview of the Urban Buildings Act. He has placed reliance on the authority Ram Swaroop Rai v. Smt. Lilatuati, 1980 (UP) 2 RCC 418 ; Om Prakash Gupta v. Digugendra Pal Gupta with G. K. Anlley u. Vth Additional District Judge, Kanpur and others, 1982 ARC 391 and Smt. Damyanti Devi u. Yogendra Kumar Singh, 1992 (1) ARC 66. The principle of ‘aw laid down in these authorities is not in controversy but it is to be kept in mind that the term “building” contemplated in Section 2 or the provisions of Section 3 of the Urban Buildings Act means only those building which belong to the landlord and does not contemplate any structures that might be put by a tenant/lessee on piece of land in his tenancy for the more beneficial enjoyment of the same. Section 3 (1) defines the term “building” as meaning a residential or nc-n-residential roofed structure and including also land appurtenant to such budding. Section 3 (j) defines “landlord”. It says that, landlord in relating to a building means a person to whom its rent is…payable. Section 2 (2) provides that nothing in this Act shall apply to a building during the period of 10 years from the date on which its construction is completed. Explanation I to tt says as follows :
(a) “the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority having jurisdiction, and in the case of a building subject to assessment, the date on which the first assessment thereof comes into effect, and where the said dates are different, the earliest of the said dales, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervising the construction or guarding the building under construction) for the first time :
Provided that there may be different dates of completion of construction in respect of different parts of a building which arc either designed as separate units or are occupied separately by the landlord and one or more tenants or by different tenants ;
(b) “Construction” includes any new construction in place of an existing building which has been wholly or substantially demolished ;
(c) “Where such substantial addition is made to an existing building that the existing building becomes only a minor pait thereof the whole of the building including the existing building shall be deemed to be constructed on the date of completion of the said addition.”
13. Section 3 (a) of the Urban Buildings Act defines “tenant”. It says that tenant in relation to a building means a person by whom its rent is payable…..Section 3 (f) defines “assessment” in relation to a building
means the assessment or proportionate assessment, as the case may be, of the letting value thereof by the local authority. Section 3 (g) defines “family” as
follows ; “family” in relation to a landlord or tenant of a building means….” All these, provisions make it amply clear that the building as contemplated under these provisions is a building belonging to the landlord and does not in any manner contemplate or mean structure or building whether temporary or permanent erected by the lessee or tenant. There is, of course, a special provision under Section 20 (3) of the Urban Buildings Act providing for the property, i.e.. building re-erected by the tenant in exercise of his rights under Section 19 of the Old Act or under Section 29 (1) or (2) of the present Act that the property so erected shall be comprised in the tenancy. These provisions of Section 19 of the Old Act and Section 29 of the present Act relate to a re-erection of a building belonging to the landlord and in the tenancy of tenant being wholly or partly destroyed by the fire, tempest, flood or excessive rainfall. However, this provision has no relevance here for the simple reason that there is no case of a building belonging to the landlord in the tenancy of the tenant having been destroyed by fire etc. and having been re-erected by the tenant in exercise of the rights in the said special provisions of Section 19 of the Old Act or Section 29 (1) and (2) of the present Act.
14. Under the Transfer of Property Act, under Section 108. clause (p), it was said that the lessee must not without the lessor’s consent erect on the property any permanent structure except for agricultural purposes. If he makes temporary structure on the land let out to him, he does not become a lessee or tenant of the structure and the Urban Buildings Act does not become applicable to such a land. Therefore, only those assessment records of the Nagar Palika would be relevant for the purposes of determining whether Urban Buildings Act applies to a building which relate to construction made by or beldnging to the landlord situated on the land of the landlord.
15. It has been found by the trial court that one Smt. Raksha Chopra was the previous owner and that she had previously let out that piece of land to one Amar Nath on rent and Smt. Raksha Chopra and her husband Yograj Chopra brought Original Suit No. 272 of 1972 against Amar Nath and others before the Civil Judge, Dehradun which was decreed on 19.2.1978. A copy of the decree is Ext. 30. In this decree, delivery of actual possession was sought after ejectment of the defendants from the plot in dispute described in the schedule. The description in the schedule was as below :
“The plot of land bearing No. 30 situated at Saharanpur Road, Dehradun and bounded as follows …….”
The defendants in the suit were Amar Nath and 5 others. Thus, it was a decree about a vacant plot of land. Then Ranjeet Singh and others brought Original Suit No. 123 of 1983 against Yograj Chopra and others before the Civil Judge. Dehradun which was decreed on 3.4.1983 in terms of an award and in execution of the same, a sale deed was executed by the Civil Judge, 1st Dehradun on 8.8.1983 in favour of Sardar Ranjeet Singh, Sardar Jagir Singh and Smt. Jasbir Kaur (the present plaintiff-opposite parties) in respect of the same land as is evident from Ext. 9 available at the trial court file. The sale deed exhibited by the Court on behalf of Yograj Chopra and Smt. Raksha Chopra convey a title in respect of all that land situated in Municipal No. 30 New No. 25/3 Saharanpur Road, Dehradun. The boundaries were also given therein. From these documents, the trial court inferred that had there been any construction existing in this piece of land, its mention would have been found in the decree of Original Suit No. 123 of 1983 aforesaid. The learned counsel for the revisionists argued that the revisionists were not a party of these suits and so their recitals could not be conclusive against them. It is true that the revisionists were not party to these two suits but it is to be kept in mind that as lessees of the shop in dispute, they derived their rights from their lessors and consequently they cannot escape the documents of title of their landlords by raising the plea that they (i.e. the revisionists) were
themselves not party to these proceedings or their decrees which were the source of title of their lessors, i.e. landlords.
16. Learned counsel for the revisionists has referred me to the testimony of Iqbal Singh P.W.1, in his cross-examination at page No. 15 of his evidence before the Court below’ that before the purchase by plaintiffs, the property was vacant piece of land on which one Amar Nath was the tenant of Smt. Raksha Chopra who had installed thereon a tin-shed and a wooden Khoka for office and argued that it was a building referring to the definition of building in the Urban Buildings Act as given in Section 3 (1), meaning residential or non-residential roofed structure. We do not have to enter into the question whether any temporary structure of the kind as stated aforesaid (tin shed plus wooden Khoka) would fall within the description “roofed structure”. It is sufficient to say that these structures having been made by the tenant, i.e., lessee on the land of which he was tenant, would not fall within the definition of “building” under the Urban Buildings Act as observed earlier in this judgment.
17. There is categorical evidence of P.W. 1 that at the time of purchase of the property by the plaintiffs, the property was vacant land. It is further stated in page 16 of his evidence that the old construction had been removed and new construction had been raised. He was not suggested by the defendants anywhere in his cross-examination that the constructions which according to him, had existed at the time of Amar Nath, were of a different description or were not belonging to Amar Nath but were made by or belonged to the previous owner Smt. Raksha Chopra. There was oral evidence of Iqbal Singh P.W. 1 at the trial that the construction of the disputed shop and other shops was started in October, 1984 and completed in March, April, 1985. From the side of the defendants, the sole witness examined was Tarvinder Singh D.W.I. He testified that the disputed shop was constructed before 1976, that before 1976 there was a large shop which was used as office and by raising walls in the middle, several shops were carved out of this said single shop. In his cross-examination at page Nos. 8, 9. 10, 11 and 16. he stated that the old large single shop was changed into small shops some time in 1984 by making dividing walls. He further stated that in the old large shop, Amar Nath was the tenant while in the building containing the disputed shops, there were 5 shops in all, 3 towards the side of Saharanpur Road and 2 towards South. He has further stated in his cross-examination that the neighbouring person has told him that in the year 1984. 5 shops have been constructed by dividing a large shop. He further stated that he did not know that Amar Nath was tenant of only vacant piece of land. He further stated that the saw machine of Amar Nath was on the back of the construction of the building of disputed shop and that there was office of Amar Nath in the original building which was a single shop, He further stated that he did not know as to how the office of Amar Nath has been constructed. Then he said that it was constructed pucca. He also stated that he did not know as to when the office was made by Amar Nath. He further stated that he knew that this plot was with Amar Nath on rent. He further stated that he did not know that in the ejectment of Amar Nath. the present plaintiff had obtained possession of vacant plot. Further he stated in his cross-examination that he did not see the old large shop mentioned by him, that he did not know as to how much long and how much wide the said shop was and how many doors it had. He stated that it was a neighbour who has told him that it was a pucca shop but he could not give the names of those neighbours when specifically called upon to do so. The trial court found on a discussion of this evidence that the evidence of this D.W. 1 could not be accepted on the point of construction particularly when there was documentary evidence on record which showed that a vacant land was purchased through sale deed executed by Civil Judge, 1st Ext. 9 which piece of land belonged to the previous owner Smt. Raksha Chopra and her husband Yograj Chopra. He concluded on a consideration of all this aforesaid materials that it was after the purchase of open land by sale deed taken from the Court
of Civil Judge. 1st vide Ext. 9 on 8.8.1983 that the plaintiffs got the disputed shop constructed. He could have held on the basis of the evidence of P.W.1 Iqbal Singh that the construction of the disputed shop was completed in April, 1985 and could be on safe ground till particularly when apart from the admission in the testimony of D.W, 1. Tarvinder Singh who was defendant No. 2 in the suit and husband of defendant No. 1 of the suit at the trial that the disputed shop and other shops were cawed out in the year 1984 from the old large shop and that the defendants were the first tenant of this disputed shop, there was the admission of the defendant No. 1. Harvinder Kaur contained in para 20 of the agreement Ext. 10 by which the disputed shop was taken on rent by her from Iqbal Singh Mukhtar-e-am of the plaintiffs “Yeh ke yen dukan naya nirman hai. Is dukan men pahle kirayedar hungi. aur is dukan per V. P. Adhiniyam No. 13 of 1972 lagu nahin hoga.” and in the opening sentence of Ext. 10 itself, stated. “Sampatti Sankhya 25 (Purana No. 30) Sahararipur Road, Dehradun par jo apki nayi dufcaney bant hai uski dufcan Wo. 1…..main
nimnlikhit shorton par fciraye par lena charili hun.” But to be on safest ground the trial court held only this much that the disputed shop was constructed after the execution of the sale deed through Court dated 8.8.1983 aforesaid and consequently held that Act No. 13 of 1972 do not apply.
18. Now we enter into the question of assessment papers. At the outset, it may be stated that even though Iqbal Singh, P.W. 1 stated on oath before the trial court that he had got a construction plan prepared about 5 shops and office Including the disputed shop in the end of 1984 or early 1985 and have got the original construction plan approved from the appropriate authority (from the Nagar Palika), he admitted at page No. 16 of his evidence that he had not given Intimation to the Nagar Palika about the construction of the disputed shops. So the clause of Explanation 1 (a) of Section 2 of the Urban Buildings Act, “the date on which the completion thereof is reported to the local authority”, was not. applicable. Now the question will be what was the date on which the “First assessment of a building subject to assessment” came into effect. So it is to be the assessment of the “building” (which means building owned or belonging to the lessor, i.e.. landlord, of course, along with the land underneath) and not of land belonging to the landlord with structures thereon belonging to the tenant or lessee. There could be an assessment even in a case whether the roofed structure is raised by the lessee or tenant on land let out to him. So the mere existence of assessment would not necessarily mean that it is the assessment available for the purposes of Explanation i aforesaid.
19. Let us now look into the extracts of the assessment records on the file of the Court below. The revisionists have filed Ext. Ka-5 extract from the assessment about land and buildings for the period 1.4.1973 to 31.3.1978. It shows the property as 25/30. In the name of the owner of property, the names of Smt. Dhan Devi, Balraj Chopra and YograJ Chopra which were substituted by names of Smt. Raksha Chopra wife of Yograj Chopra by mutation made on 14.3.1974 by the appropriate authority. In the column of occupant, the name of Amar Nath was given. The annual valuation was shown as Rs’. 600 and the house tax and water tax were shown as Rs. 30 and 36 respectively. It is recorded that it was unchanged even on objections. Then Ext. Ka-4 was the extract of assessment list for the period 1.4.1979 to 31.3.1984. In it the same entries were made with the difference that name of Smt. Raksha Chopra alone was shown as landlord. Then Ext. Ka-6 was an extract of the assessment list for the period 1.4.1984 to 31.3.1989. In it the name of Smt. Raksha Chopra was the owner of the property was struck off and the name of Sardar Ranjit Singh was shown as the landowner. The name of occupant was shown as Amar Nath. The annual value was shown as Rs. 600 and the house tax was shown as Rs. 60. So against the evidence on record referred to above, these assessment records cannot be taken to be relating to the “assessment of building” as contemplated in Explanation No. 1 to Section 2 12) of the Urban
Buildings Act. Here it may be mentioned that the plaintiffs had filed extract from the assessment list for the period 1.4.1979 to 31.3.1984. In which the property was described as 25-1/30-A and in the column of owner of property, there is following mention. “Sri Amar Nath Karyalay Mashtn adi ke swami, bhuswami Smt. Raksha Chopra.”
The learned counsel for the land lord-opposite parties claims that this assessment record Ext. 31 relates to the same property and it. shows the existence of the structures of the tenant Amar Nath and showed Smt. Raksha Chopra as owner of the land. It shows the house tax to be Rs. 2.100 and the sever tax Rs. 105. There is a discrepancy in the description of property. In the pleadings of the parties, the property has been described as 25/30 Saharanpur Road, the original number being property No. 30 and the new number being property No. 25.
20. The claim of D.W. 1. Tarvinder Singh at page 11 in his cross-examination was that property No. 25/1/30-A perhaps belonged to Amar Nath and that this plot was adjoining the plot of the tenancy of Amar Nath towards East. He could not say as to whose plot is situated towards East of property No. 25/1/30-A.
21. The plaintiffs had relied on a notice Ext. 27 dated 23.8.1985 sent by the Executive Officer, Nagar Palika. Dehradun, to them about property No. 25-1/30-A which shows that the proposal of the Nagar Palika is on the annual valuation of tax assessment be made in view of the re-construction/ improvement in property No. 25-1/30-A, Saharanpur Road, under Sections 143 (2) and 137 (4) of the Nagar Palika Municipalities Act. It showed that in the old assessment the annual valuation was Rs. 2,100 and it was proposed to be raised to Rs. 6,000 and the house lax was proposed to be Rs. 600. The evidence of P.W. 1 is that this notice relates to the disputed shop and that objections were raised to the same but the same were pending. The claim of the defendants was that it does not relate to the disputed property but has been managed by the plaintiffs for the purposes of the case. In the state of evidence it cannot be said definitely whether Ext. 27 relates to the disputed property or not but in any case, the revisionists had nothing to gain. From the discussion made above, it is clear that the assessment records. Ext. Ka-4, Ka-5 and Ka-6 do not help the revisionists and consequently, if the trial court has not referred to these documents in its judgment it does not adversely affect the merits of the case at all. In view of the documentary and the oral evidence and the circumstances including admissions from the side of the revisionists.
22. If we accept Ext. 27 as relating to the disputed property, then it will mean that the first assessment of the newly constructed shop was made w.e.f. 1.10.1985 and it will be the first assessment of the building is contemplated in Explanation 1, to Section 2 (2) of the Urban Buildings Act and consequently, the Urban Buildings Act would not apply to the building as in the II proviso to Section 2 (2) of the Urban Buildings Act as amended on 26.4.1985 after the U. P. Act No. 17 of 1985 came into force where construction of a building is completed on or after 26.4.1985 then the reference in the sub-section to the period of 10 years shall be deemed to be a reference to a period of 20 years from the date on which its construction is completed and as per Explanation J, 1.10.1985 the date of the first assessment of the building shall be deemed to be the date of completion of the construction of the building, i.e., the shop in dispute. If on the other hand, this document Ext. 27 is ignored as not conclusively proved to relate to the disputed shop, then as per Explanation I, itself the last clause of Explanation 1 (a) will apply, i.e., “in the absence of any -such report, record or assessment, the date on which it is actually occupied for the first time” which date in the present case is admittedly 1.1.1986, and it will mean that the Urban Buildings Act [Act 13 of 1972) did not apply to the said building for a period of 20 years starting from 1.1.1986. In any case Act 13 of 1972. who not applicable to the shop in suit.
23. The learned court has held that the building was constructed some time after the year 1983 when possession of vacant piece of land was taken by the plaintiffs through Ext. 9 but in any case his finding that the Urban Buildings Act. I.e.. Act No. 13 of 1972 does not apply to the disputed shop has to stand in view of the unamended Section 2 (2) of the Act.
24. Learned counsel for the revisionists had argued that in the plaint, there was no averment that Amar Nath” had installed Tin-shed and Wooden Khoka on the land and that the plaintiffs demolished it and made a reconstruction and that consequently, the oral evidence of P.W. 1 to this effect at the trial (as mentioned above) cannot be looked into. This argument cannot be accepted. First it was never the case of the plaintiffs at the trial or before this Court that it were they who demolished the said structures belonging to Amar Nath existing on the land during the period of his tenancy and occupation of the land. Their case throughout is that they got possession of vacant land meaning thereby that whatever structures belonging to Amar Nath had been there at any point of time had been removed from there prior to the delivery of possession to the present plaintiffs. Secondly, there were ancillary facts only and in the statement furnished under Order VII, Rule 4. C.P.C.. better particulars were furnished which were sufficient to be furnished. Every ancilliary fact need not be pleaded in the plaint. Furthermore nobody can be said to have been taken by surprise by this evidence.
25. It has been argued by the learned counsel for the revisionists that the admission made by the revisionists were not conclusive particularly when the documentary evidence in the form of assessment records was present on the file which pointed to the contrary. We have already dealt with the assessment records and we have found that the same do not help the revisionists and do not displace the admissions made by the revisionists as mentioned earlier. These assessment records are suits consistent with the admissions made by the revisionists as mentioned earlier. These assessment records are quite consistent with the admissions made by the revisionists. The revisionists have not succeeded in showing the admissions to be wrong.
26. Some reference was made Section 29 of the Urban Buildings Act by the learned counsel for the revisionists and it was said that the construction made by the tenant on the land held by him would be comprised in the tenancy. This argument cannot be sustained in view of the fact that there is no plea anywhere in the written statement of the revisionists before the trial court that the previous tenant Amar Nath was tenant of a building belonging to the landlords and the same was destroyed by fire, tempest etc. and he had reconstructed the same in accordance with the rights conferred by Section 29 of the Act.
27. It was also argued by the learned counsel for the revisionists that the case can be remanded to the Court below if there appeared discrepancy in the assessment records. The copies of the assessment records are on the file and we have already discussed the same and found that (sic was) taken as such they do not help the revisionists. So there is no just ground for remand. The prayer is rejected.
28. The only other point argued before me by the learned counsel for the revisionists is about a sum of Rs. 23,000 deposited as security by the defendant No. 1 (revisionist No. 1) in accordance with the agreement Ext. 10 dated 16.12.1985. It is claimed that the plaintiffs not having mentioned about this amount in the suit, their suit should be dismissed as they have not filed it with clean hands. In my view, it cannot be said that anything inequitable has been done by the plaintiffs of the suit, nor could the suit be dismissed on the ground of non-mention of this amount. The term about this amount is contained in para 18. This para 18 is quite a long one but the essence of it is that Rs. 23.000 were being deposited by security amount and at the time of the termination of the tenancy when the actual vacant possession was delivered to
the landlords the landlords will return this amount to the revisionists without any interest for the intervening period and that at the time of surrendering the shop from the tenancy, tf any dues remain unpaid towards it [i.e. relating to the tenancy of the shop), the landlord will be entitled to deduct all that amount from the said security amount of Rs. 23,000.
29. Now the suit has been filed by the landlords-opposite parties and there is no suit from the side of the tenant in respect of the said security amount in which the said term of this agreement could be interpreted and if necessary enforced. In this suit only limited relief can be given and that only to the extent of the arrears of rent and taxes Including pendente lite and future damages upto the date of delivery of possession decreed in the suit. The learned counsel for the plaintiffs-opposite parties has rightly argued that the terms of Clause 18 of the agreement aforesaid could be operative only at the time when the delivery of possession of the disputed shop is actually made by the revisionists to them and that before the actual delivery of possession, the revisionists were not entitled to any adjustment of the money part of the decree against the said amount of Rs. 23.000 and the learned counsel has also rightly argued that the said adjustment can be considered by the executing court only when the delivery of actual physical possession of the disputed shop has been given to the landlords (plaintiff-opposite parties).
30. There is no controversy, about the amount of the monetary part of the decree passed by the trial court. The findings of the Court below have been upheld by me.
31. Consequently, this revision is dismissed with ‘costs and the decree passed by the trial court is upheld with the only modification that if and when the delivery of actual physical possession of the disputed shop is made to the plaintiffs-opposite parties in execution of the decree, the executing court will record adjustment of the whole or part of the amount of arrears of rent, taxes and damages for use and occupation from the date of the suit till the date of actual delivery of possession over the disputed shop in the decree that may have remained un-realised or un-satisfied uptil then, against the amount of Rs. 23.000 lying in deposit with the plaintiffs-opposite parties. The deposits made by the revisionists in Court from time to time shall be adjusted against the decree and the plaintiffs-opposite parties shall be free to withdraw the same.
32. The defend ants-revisionists shall be free to bring separate suit for
refund of the balance amount remaining unadjusted out of the total sum of
Rs. 23,000 in accordance with law.