Muneer Ahmad Alia Marru vs Smt. Zareena Begum

Hon''ble Satyendra Singh Chauhan, J

Heard learned counsel for the appellant and the learned counsel for the respondents.

This second appeal arises from the judgment and decree dated 31.10.2002 passed in Regular Suit No. 41 of 1998 and judgment and decree dated 1.8.2003 passed in the R.C.A. No. 251 of 2002.

The plaintiff-respondent filed a Suit for ejectment and recovery of arrears of rent in respect of the land which was let out to the appellantdefendant. It was stated that the defendant was tenant @ Rs. 100/- per month of the said land. The boundaries were also given in regard to the disputed land. It was further averred that the plaintiff demanded rent several times from the defendant but the defendant did not pay the rent from the month of May 1995 and, therefore, plaintiff decided not to keep the defendant as her tenant. It was also stated that certain constructions have been raised by the defendant during the course of tenancy by putting wooden Dhannies on the corner of the boundary wall. A registered notice for ejectment was given terminating the tenancy of the defendant on 26.11.1997. The said notice was served upon the defendant on 29.11.1997 but even then neither any rent was paid nor premises were vacated. The written statement was filed by the defendant and in para 1 of the said written statement it was stated by the defendant that construction was not of permanent nature and was of temporary in nature which was raised by him and rent was sent to the plaintiff through money order dated 7.12.1997 but the same was not accepted to be taken. The defendant was carrying work of carpentry on the land in question and he has raised certain boundary wall with security point of view. On the aforesaid allegations parties adduced their evidence and the trial court after hearing the parties counsel and after appreciating the evidence on record came to the conclusion that some structure of temporary nature was existing on the land in question and, therefore, it can be termed as building or permanent structure and decreed the Suit. Aggrieved with the said order an appeal was filed which was also dismissed, hence this second appeal before this Court.

Learned counsel for the appellant-defendant has pressed on the substantial question of law in regard to the jurisdiction of the court to try the Suit. The other substantial question pressed by the learned counsel for the 2 appellant is that there was a compromise decree and from the compromise decree it has to be inferred that the construction was existing on the spot and the finding recorded by the trial court as well as the appellate court is, therefore, illegal and is against law.

Learned counsel for the respondent-plaintiff, on the other hand, has submitted that so far first substantial question of law is concerned in regard to the cognizance being taken by the civil court, no such objection has been taken specifically and in absence of any such objection being taken, no issue was framed and if any finding has been recorded then it will be obiter. So far the other claim of the appellant is concerned that the compromise decree will have effect on the case and from the compromise it has to be inferred that permanent construction was standing on the land in question. Learned counsel for the respondent-plaintiff in support of his case has placed reliance upon the following cases :-

Sunder Lal Vs. Raja Ram and others, 22008(26) LCD 326.

Radhey Shyam Vs. District Judge, Allahabad and others, 1981 ARC 693.

Babu Ram Vs. Smt. Awadesh Kumari and another,1987(2) ARC 114.

Jagjeet Singh Vs. Anil Kumar Gupta and others, 1997(1) ARC 580.

M/S Bharat Petroleum Corporation Ltd. Vs. Smt. Parvati Devi and others, 1998(1) ARC 36.

Krishna Bhagwan Vs. District Judge, Bareilly and others, 1999(2) ARC 248.

Rama Kant Gupta Vs. Rameshwar Das, 1992(2) ARC 110 and 8. Sardar Gurcharan Singh Vs. Additional District Judge, Ist,Kanpur and others. 1995 ALL.L.J.250.

So far as the jurisdiction is concerned, learned counsel for the respondent has submitted that the admission in the compromise will not lead to the conclusion that there was any permanent construction standing on the disputed land and the appellant was bound by his own admission in the written statement. In the written statement he has admitted the category of construction and the spot position of the land, therefore, the substantial question of law which has been raised by the learned counsel for the appellant does not arise for consideration in the second appeal and neither it can be termed as substantial question of law.

I have heard learned counsel for the parties and perused the record. 3 Learned counsel for the appellant has vehemently argued that permanent structure was existing on the land when the Suit was filed. He has drawn attention of the Court towards the evidence on record and compromise decree. The compromise was entered between the parties on 4.9.1990. The said compromise was filed in the Regular Suit No. 145 of 1989 and the said Suit was decided in terms of the compromise. The compromise was entered into between the parties in the earlier Suit in which it has been indicated that the shop is existing.

The question to be considered is that what was the nature of the construction. The evidence adduced by the parties that the shop in question was temporary in nature and boundary was made in order to protect the goods of the appellant so that the goods may not be stolen and also to carryout the business of carpentry. The trial court while appreciating this issue came to the conclusion that even if it is accepted then also it has to be termed as a piece of land. Even if the argument of the learned counsel for the appellant is to be accepted then it can not be termed as permanent structure or shop as pleaded by the counsel for the appellant. It is to be noted that the vacant land was let out to the defendant and during the course of tenancy if any construction has been made even with the consent of the landlord; such structure as pleaded by the parties can not be termed as construction and only temporary construction. From the evidence on record and from the own showing of the defendant in the written statement and their compromise it is evident that he has put on wooden Dhannies on the corner of boundary wall and in order to have some protection from adverse whether and also with a view to protect certain furniture from the rain etc. From the own showing of the defendant the nature of the building appears to be a temporary construction rather than a full fledged permanent construction.

Reliance placed by the trial court on Syed Ahmad and others Vs. Shafiq Ahamad, 1991(2) ARC 90 and 1992(2) 248 and the learned counsel for the respondent has relied upon the Ram Prasad Vs. Hari Narain and Others, , which have laid down the law clearly on the issue in question as to whether such a land which has been let out to the defendant and if any temporary construction has been raised by him will amount to building or shop or it can still be treated to be a land. For the purposes of decision of the case principles of law as laid down that such land will remain to be the land for the purposes of the Suit irrespective of the fact that certain construction has been raised which is temporary in nature.

From the evidence on record it is wholly clear that the contents of para 1 of the Suit states that the plaintiff is owner and land lord of the piece of land situated at Mirzaganj, Malihabad, District Lucknow and the defendant was tenant of the plaintiff @ Rs. 100/- per month in respect of a piece of land 4 mentioned above bounded by certain boundaries. It was also stated in the Suit that defendant had put in wooden Dhannies on the corner of the boundary wall of the land in dispute. The said structure, therefore, looking to the averments made in the plaint as well as admission of the defendant, it can not be said that matter was not cognizable by the Civil Court and the parties were required to approach the Judge Small Causes Court under Judge Small Causes Courts Act.

Much emphasis has been laid on the compromise to prove that the shop has been mentioned on the land in question but looking to the pleading and evidence on record, the same assumed the character as stated above.

Learned counsel for the respondent has also stated that no such foundation was laid in the pleading or in regard to jurisdiction and neither any plea was raised in this regard so the evidence led by the parties on record can not be taken into consideration. In absence of any pleading to the effect no evidence can be taken into consideration and for this purpose reliance has been placed on the decision reported in 2008 (26) LCD 326 Sudner Lal (Supra) wherein it has been laid down that

To be substantial question of law must be debatable not previously settled by law of land by a binding precedent and must have a material bearing on the decision of the case To be a question of law involving in the case there must be first a foundation for it laid down in the pleadings and the question should emerge from the substantial findings of fact arrived at by Court of facts and it must be necessary to decide that question of law for a just and proper decision of the case.

Here in the case in hand, no such foundation has been laid nor any pleading has been made to substantiate the point of law that the land in question can be termed as a land and the jurisdiction of the civil court was ousted.

Lastly the counsel for the appellant has placed reliance upon the judgment reported in 1990 (2) Alld.Rent Cases 357 Harish Chandra and another Vs. Mohd. Ismail and others to contend that the matter should be remanded for determination of the issue if the same has not been decided in accordance with law. In this case the question posed with Hon''ble the Supreme Court was as to whether the tin Shade standing on landlord''s land and supported by wall of landlord''s house is structure raised by the landlord or by the tenant. Since there was no finding on this issue, case was remanded to the trial court.

Here in the case in hand, it is to be noted from the pleadings of the parties that there is no such dispute that construction was made by the land lord or tenant but specific admission is there, therefore, the argument of the 5 learned counsel for the appellant that the case should be remanded back is not acceptable.

In the opinion of the Court no substantial question of law arises in this second appeal.

For the aforesaid reasons, the second appeal is dismissed.