M.P. Mehrotra, J.
1. This is the defendant's second appeal arising out of a suit for the tenant's eviction filed by the landlord after determining the former's tenancy. The brief facts are these: The plaintiff claimed to be the owner of premises No. 3648-E situated at Sultanganj, Agra whose details are set out in the plaint. It was contended that in the said premises the defendant was the tenant of a thatched Kotha on behalf of the plaintiff. The tenancy also included Sahan on the eastern side of the Kotha. It was a monthly tenancy and the month of tenancy started from the 1st day of each English calendar month. The monthly rent was four annas per month. It was further alleged that the defendant effected material alterations and he encroached upon the plaintiffs land on the eastern side by putting another shed and by opening another door towards the west of the said premises. By a notice dated 6th July, 1961, which was served on the defendant on 18th July, 1961, the plaintiff determined the latter's tenancy and the defendant was called upon to pay the arrears ot rent due from him and to vacate the premises after the period of notice. The defendant failed to comply with the notice. Hence the suit. The plaintiff claimed arrears of rent and damages along with the relief for the eviction of the defendant-appellant. Pen-dente life and future damages were also claimed for illegal use and occupation.
2. The defence was that the defendant had taken only open land and not any Kotha from the plaintiff. The open land was taken for raising permanent constructions. The plaintiff's ownership of 3648-E was denied. It was stated 'that some land lying in the Baghichi which was Sahrai was taken by the defendant for raising constructions of permanent nature long ago. The defendant raised previously a kachcha residential house thereon which has now been replaced by a pucca house thereon in Or about the year 1961. It is wrong to say that the defendant is a tenant of thatched kotha on behalf of the plaintiff.'
3. In para 15 of the written statement the defendant stated that he paid only ground rent to the plaintiff but did not pay any rent in respect of the premises or kotha, The defendant denied that he made any material alteration or encroached upon any land of the plaintiff. In fact, the land was initially taken by him for the purpose of raising constructions of a permanent nature. Therefore, there was no question of making any alteration or doing the same with the consent or permission of the plaintiff. The defendant also claimed that he was a permanent licencee as provided under Section 60 of the Easements Act and the plaintiff was estopped from seeking the defendant's ejectment. The benefit of U. P. Urban Areas Zamindari Abolition and Land Reforms Act was also sought to be taken. Certain other pleas were also taken which, however, it is not necessary to notice in the instant appeal.
4. The trial court framed the necessary issues and tried the suit. It held that the plaintiff was the owner of the premises in question and that it was not only an open land but a kotha and chhapper standing thereon were also let out by the plaintiff to (he defendant. The trial court also held that no land on rent was permanently given to the defendant nor was it given tor raising constructions of a permanent nature. The relationship of landlord and tenant was held to be proved and it was held that the defendant converted the kachcha structures into pucca constructions and that this was done without the permission of the plaintiff. Certain other alterations were also held to have been made without the permission of the plaintiff. Accordingly, under Section 3 (1) (c) of U. P. Act No. 3 of 1947 (U. P. (Temporary) Control of Rent and Eviction) Act the defendant was liable to be evicted in the suit. The notice was held to be a valid notice and it was held to have been duly served on tha defendant. The defence plea based on the U. P. Urban Areas Zamindari Abolition and Land Reforms Act was negatived. The defendant was also held to have been a defaulter as he failed to pay arrears of rent within one month of the notice of payment. The trial court, therefore, decreed the plaintiff's suit for the recovery of Rs. 9/- as arrears of rent and past mesne profits. Pen-dente lite and future mesne profits were also decreed. The relief of eviction was also granted to the plaintiff against the defendant. The defendant filed an appeal in the lower appellate court but the same was dismissed except for the modification that the defendant was declared entitled to remove the Malva of the constructions raised by him before delivery of possession of the property to the plaintiff. Unlike the trial court, however, the lower appellate court held that only land was given to the defendant on rent and not the accommodation as alleged by the plaintiff. The defence plea that a licence was granted in the defendant's favour and that he was entitled to the benefit of Section 60 of the Easements Act was rejected. The relationship between the parties was held to be that of landlord and tenant and not that of licensor and licensee. It was also held that the constructions were raised by the defendant. It was held to be a case of monthly tenancy. The other defence pleas were also rejected.
5. In the instant second appeal Shri Prakash Gupta, learned counsel for the appellant has made the following points:
(1) The defendant was a permanent lessee of the open land and hence he was not liable to be evicted. Reliance was placed on the following cases: Abbaipada v. Ator Dome, (AIR 1923 Cal 294 (2)); Dwarkadas Marwari v. Parbati Dassi : AIR1942Cal486 ; Shahja-han Begam v. Munna : AIR1927All342 ; Kanhaiya Lal v. Abdullah : AIR1936All385 ; Faquirullah v. Wali Khan : AIR1926All714 ; Gur Din Sah v. Badri 0065/1936 ; Muhammad Ismail v. Jawahir Lal : AIR1935All492 .
(2) The defendant-appellant was entitled to the benefit of Section 29-A added by the new U. P. Act No. 13 of 1972 (U. P. Urban Buildings (Regulation of Letting Rent and Eviction) Act).
(3) Replying to the learned counsel for the respondent's argument that the defendant was liable to be evicted on the ground of his having denied the plaintiff's title it was contended that the plaintiff could not avail of such a ground if the denial was contained in the written statement filed in the suit. In other words, it was contended that the denial of title must precede the institution of the suit before the tenant can be evicted in the suit on the said ground. Reliance was placed on the following cases: Maharaja of Jaypore v. Rukmani, (AIR 1919 PC 1); Mukat Singh v. Misra Paras Ram, (AIR 1924 All 726); Hashmat Husain v. Saghir Ahmad : AIR1958All847 ; Ramayan Prasad v. Gulabo Kuer : AIR1967Pat35 ; Mohd. Amir v. Municipal Board. Sitapur : AIR1965SC1923 ; Sada Ram v. Gajjan Siama ; Daya Ram v. Chiraunji Lal : AIR1977All449 .
6. Shri B. P. Agarwal, learned counsel for the plaintiff-respondent, contended as follows:
(1) The courts below have recorded clear finding of fact which cannot be questioned in a second appeal. It has been found by both the courts below that it was a case of monthly tenancy and not the case of a permanent tenancy. Moreover, it has been found that the constructions were not raised with the consent of the plaintiff. Learned counsel referred to Section 13 of the Indian Contract Act and Section 3 (1) (c) of the repealed U. P. Act HI of 1947 and Section 20 (2) (c) of the new U. P. Act No. XIII of 1972. He contended that the defendant-appellant was not entitled to the benefit of Section 29-A of the aforesaid new Act No. 13 of 1972.
(2) It is not necessary that the denial of title must precede the suit. A court can take notice of the denial of title in the suit itself and decree the plaintiff's suit on the said ground. Counsel placed reliance on the following cases: Rattan Lal v. Vardesh Chander : 2SCR906 ; Hari Ram v. Raja Ram ; Jai Narain Dass v. Zubeda Khatoon : AIR1972All494 ; Suhag Rani v. Sukhadev Singh (AIR 1971 Pun 434); Sada Ram v. Gajjan Shiama ; Raghubar Singh v. Sm. Phoolmati : AIR1962All122 ; Bhagwan Das v. Surajmal : AIR1961MP237 ; Krishna Devi v. N. Balai Siugh, (AIR 1960 Manipur 54); Fateh Chand v. Brij Bhushan Prakash : AIR1957All801 ; Ratneswar v. Mongoli Chutiani (AIR 1951 Assam 70); G. Goculdas Tejpal v. Municipal Commissioner, (18 Bom 256) (sic)
Reference was also made to 1962 All LJ (Summary of Cases) 44.
7. On the basis of the submissions made by the learned counsel, the following points arise for adjudication.
(1) Whether the tenancy was a permanent one.
(2) Whether the defendant is also liable to be evicted on the ground of' his having denied the plaintiff's title in the suit.
(3) Whether the defendant is entitled to the benefit of Section 29-A of the new Rent Control Act of 1972.
8. I may state here that no point was made before me on the basis of Section 60 of the Easements Act. In my opinion, in view of the concurrent finding recorded by both the courts below that the relationship of landlord and tenant existed between the parties, rightly no point was raised before me that the relationship was that of the licensor and the licensee.
9. Learned counsel for the defendant-appellant has placed reliance on certain cases whose citation has been given above. I may briefly notice the said cases.
10. In Abhaipada v. Ator Dome, (AIR 1923 Cal 294 (2)) it was laid down:
'Where the terms upon which a tenancy was created cannot be proved by direct evidence the subsequent conduct of the parties may be considered with a view to determine the nature of the tenancy'.
It may be observed that this case related to agricultural tenancy governed by the Bengal Tenancy Act and not governed by the Transfer of Property Act.
11. In Faqirullah v. Wali Khan : AIR1926All714 the case related to licence granted by the Zamindar to erect structure of permanent character and the controversy was determined with reference to Section 60 of the Easements Act. I have already observed that in the instant case the controversy has to be examined on the basis of the existence of the relationship of landlord and tenant and not on the basis of the grant of any licence.
12. In Shahjahan Begam v. Munua : AIR1927All342 Iqbal Ahmad, J. laid down as under:
'If the origin and the nature of a tenancy is not known, and if it is proved that a land was let for building purposes and a building was actually constructed on the same, and remained in occupation of the lessees for a long number of years, these facts, in the absence of anything pointing to the contrary conclusion, should be enough to lead to the presumption that the tenancy was a permanent one.
A kachcha house is also a building of a permanent character. A pucca building is a building more permanent than a kachcha one, but the mere difference in the degree of permanence cannot alter the nature of the tenancy. The fact that a kachcha house has been in existence for a period of more than 60 years, and has passed by succession to the heirs of the lessee who originally built the house, may be enough to lead to the presumption that the lease is a permanent one.'
13. In Muhammad Ismail v. Jawahir Lal : AIR1935All492 the Division Bench held on the basis of the construction of a lease deed coupled with the circumstances of the case that a permanent lease was granted. It was observed:
'It is not necessary for us to go in detail into the expressions used in the document, because it is clear that the use of the word dawam per se might not imply perpetuity but in the present case the lessee was given the right to build a house or to let it out on rent to anyone else. It was further said that the lessee shall have the same right as the lessor enjoyed up till then. It is clear that the lessor had proprietary rights, and she could undoubtedly have granted permanent rights to others. There is no reason why Jai Chand, the lessee should not be deemed to have the same powers and that would only be consistent with the idea of the lease being a perpetual lease.'
The facts and circumstances of the said case were entirely different and there was a document evidencing the transaction which is not the case here.
14. In Kanhaiya Lal v. Abdullah : AIR1936All385 a Division Bench laid down as follows:
'The presumption of law is that where a permanent building has been erected by defendant on land which has been given to him for purposes of erecting a building, he has a right to remain in possession of the building as long as the building stands. But where the landlord alleges a custom according to which the tenant occupies the site as a tenant, on condition that whenever the proprietor of the land .shall stand in need of getting the land vacated he will get the same done by paying the price of the building materials or by getting the same removed, the custom is a very arbitrary one and would require very good evidence for its proof.'
In the said case the grant was said to have been made more than 100 years before the suit. It is obvious that it was a case of lease prior to the coming into effect of the T. P. Act. The Bench observed:
'We may also note that the law of Registration was not in force at the remote time which the defendant indicates and therefore there is no question of the necessity of a registered deed for land which is obviously less than Rs. 100 in value because the monthly rent is stated to be only four annas.' With the deepest respect, I may say that the latter observation seems to be based merely on the necessity for registration under the Registration Act. It has overlooked the necessity for registration under Section 107 of the T. P. Act where there is no such requirement that the value of the land should be more than Rs. 100/-.
15. In Gur Din Sah v. Badri 0065/1936 a Division Bench laid down as follows:
'Where the lessee is not admitted to the tenancy of any existing shop or house, but is allowed to build new shops and houses on the ruins of old shops and houses, and the lease shows that the lessor realized a cash nazrana when he granted the lessee to build shops on the plot in question and that the lessee agreed to pay rent at the rate of 11 annas per month, the lease is one for building purposes and the rent reserved is only in the nature of ground rent. In such a case if the lessee makes constructions which continue in existence for over thirty years without any attempt by the lessor to enhance the rent or eject the lessee and there is nothing in the terms of the lease to suggest that the lessor has a right to eject the lessee at will: the tenure on which the land is held should be presumed to be of a permanent nature and to such a case Section 106 of T. P. Act has no application.'
It seems that there was a document, namely, Ex. B-1 by which the landlord had given the permission to the tenant to build the shops in question. The Bench placed much significance on the fact that a premium had been paid by the tenant to the landlord when the latter executed and granted permission to the tenant to build the shops.
16. In Dwarkadas Marwari v. Parbati. Dassi : AIR1942Cal486 it was observed:
'In the absence of a written lease creating a tenancy the nature of the tenancy must be determined from surrounding circumstances, and in particular from the course of dealings by the parties concerned.'
This case does not seem to be of much relevance. The dispute was about title. The point which is directly involved in the instant case did not come up before the learned single Judge who decided the Calcutta case.
17. I may here notice some of the Privy Council and Supreme Court cases bearing on this controversy.
18. In Afzal-Un-Nisa v. Abdul Karim, (AIR 1919 PC 11) the Board held that a permanent tenancy was established. The following passage from the judgment will show the factors which weighed in coming to the said conclusion:
'It is admitted that the respondents' pre-decessors-in-title were invited to occupy the land for building purposes by the predecessors of the appellant in about the year 1859. No document showing the terms of occupancy is extant, nor is there any reliable oral evidence of what passed at that time. But the facts found, and as to which, indeed, there is no dispute, are that from that time onwards a uniform and fixed rent has been paid, that in some of the receipts given by the landlord the term 'permanent' as applied to the rents is used, that the respondents and their predecessors-in-title have erected substantial buildings without objection on the part of the landlord, that they have dealt with their properties by way of sale and mortgage, and that the properties have passed by succession, in these circumstances the learned Judges of the Courts below have held that the case is in substantially the same position as the case of Casperz v. Kader Nath Sarbadhikari (1901) ILR 28 Cal 738 : 5 Gal WN 858). The head note of that case, which accurately represents what is decided, is in these terms:-- 'Although the origin of a tenancy may not be known, yet if there is proved the fact of long possession of the tenure by the tenants and their ancestors, the fact of the landlord having permitted them to build a pucca house upon it, the fact of the house having been there for a very considerable time, of it having been added to by successive tenants, and of the tenure having from time to time been transferred by succession and purchase, in which the landlord acquiesced or of which he had knowledge, a Court is justified in presuming that the tenure is of a permanent nature.'
The Privy Council further emphasised that in the case before it several sale deeds of superstructure houses on the ground by the plaintiff's predecessor were produced in which there was a distinct acknowledgment that the houses themselves were held by the tenant in virtue of a permanent tenancy. This would be an estoppel as against the plaintiff.
19. In Dhanna Mat v. Moti Sagar it was held that permanence of tenancy was not proved and in this connection three aspects were emphasised. Firstly, it was observed that in the sale deed by the predecessor-in-interest of the tenant while there was a covenant relating to the title to the building, there was none in respect of land. Secondly, in an earlier suit which was filed against the tenant he did not plead a case of permanent tenancy but merely pleaded that the landlord had agreed not to evict the tenant as long as the building stood. And thirdly, the tenant submitted to enhancement of rent which was effected by the earlier suit filed against him. The Board laid down that the question whether the tenancy was a permanent one Or not was a question of law. A declaration signed by the Gumastha of the firm purporting to set forth the terms of the tenancy was held to be inadmissible on the ground of non-registration.
20. In Ariff v. Jadunath Majumdar it was laid down that when a permanent tenancy could be created by a registered document alone, it is not open to a party to take recourse to any equitable principle in support of its creation. It was further laid down that Ramsden v. Dyson ((1866) 1 HL 129) was inapplicable.
21. In Bejoy Gopal v. Pratul Chandra : 4SCR930 it was laid down that permanent tenancy did not imply fixity of rent or occupation. It was further emphasized that neither possession for generations at uniform rent, nor construction of permanent structures by itself is conclusive proof of a permanent tenancy. It is the cumulative effect of these coupled with several other factors that may lead to the inference of a permanent tenancy. The facts and circumstances which weighed with the Court have been summed up in the following passage extracted from the judgment (at p. 155):
'What, then, are the salient facts before us? It is not known how the earliest known tenant Shaik Manik acquired the tenancy or what the nature of the tenancy was. The tenancy has passed from one person to another by inheritance or by will or by transfer inter vivos. In the deeds of transfer the transferee has been given the right to enjoy the property from generation to generation for ever. A tank has been excavated and a pucca ghat built on the land. Bricks have been manufactured with the earth taken from the land and the premises have been enclosed within pucca walls. Pucca buildings have been erected and mortgages have been executed for substantial amounts. Although there was an enhancement of rent in 1860 that rent has continued to be paid ever since then. Portion of the premises, namely, No. 2. Watkin's Lane, has been used as a factory by the plaintiffs and on the other portion, namely, No. 3. Watkin's Lane, residential buildings were erected which indicate that the lease was for residential purposes. As already indicated there have been many transfers and devolutions and the landlords have accepted rent from the transferees or the successors. The names of Mrs. Cynthia Mills and Dobson and Jones were mutated in the Zamindar's Sherista. Although in the rent receipts Dobson continued to be shown as the recorded tenant, eventually Jones's name appears on the rent receipts as tenant. In spite of the increase in land value and the letting value the landlords through whom the plaintiff derives his title did not at any time make any attempt to eject the tenant or to get any further enhancement of rent since 1860. All these circumstances put together are explicable only on the hypothesis of permanency of the tenure and they irresistibly lead to the conclusion, as held by the lower Courts, that the tenancy in question was heritable and a permanent one.'
22. In : 3SCR876 there was a document which created the lease and on the interpretation of the document in conjunction with the facts and circumstances of the case it was held that a permanent tenancy was created.
23. In Veerraju v. Venkanna : 1SCR831 the following points emerged from the decision in this case:
(1) The onus of proving permanent tenancy is upon the defendant.
(2) Where there is a deed the matter is one of construction of the deed. If the deed is ambiguous, then attending circumstances and conduct of the parties will have to be seen.
(3) If the origin of tenancy be not known then taking into consideration the facts and circumstances of the case and conduct of the parties a presumption about permanent tenancy can be made.
(4) In view of Section 116 of the Evidence Act. during the continuance of the tenancy, a tenant will not be permitted to deny the title of the landlord at the beginning of the tenancy. Further, during the continuance of the tenancy, the' tenant cannot acquire by prescription a permauant right of occupancy in derogation of the landlord's title by mere assertion of such a right to the knowledge of the landlord.
24. It seems to me that Section 107 of the T. P. Act is a complete answer to the contention raised on behalf of the defendant-appellant. In view of the first para of the said section which says 'a lease of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument', it is not permissible now to set up a case of permanent tenancy on the basis of oral agreement or under an unregistered instrument. Of course, if a tenancy started prior to the coming into effect of the T. P. Act then one can set up a case of permanent tenancy on the basis of oral agreement or on the basis of an unregistered instrument. All the cases in which the Court held in favour of a permanent tenancy were cases where the origin of tenancy was unknown and they were cases where the tenancy started prior to the enactment of the Transfer of Property Act. In the instant case, it cannot be disputed that the tenancy started long after the coming into effect of the T. P. Act. The defendant's evidence was that it started about 50 years ago whereas the plaintiffs evidence was that it started about 40 years ago. However, this difference is wholly immaterial inasmuch as the suit was instituted in 19fi4 and tenancy in no case could be said to have started before 1914. The T. P. Act obviously will, therefore, govern this tenancy and the defendant's version of a permanent tenancy would come in conflict with the requirement of law contained in the first para of Section 107 of the said Act. In it was clearly laid down that the requirement of registration contained in the said provision could not be circumvented or allowed to be defeated by setting up a case of permanent tenancy on the basis ot oral evidence. The courts below were, therefore, right in rejecting the defendant's contention that his tenancy was a permanent one. They have relied on Exts. 5 and 6 which are the counterfoils of the rent receipts granted by the plaintiff to the defendant. They clearly establish that the tenancy in the instant case was monthly and the rate of rent was a monthly one. The defendant admitted his signature on the said documents. These documents clearly negative the case of permanent tenancy set up by the defendant. I, therefore, uphold the findings of the courts below that no permanent tenancy was granted to the defendant by the plaintiff and it was a case of monthly tenancy.
25. So far as the second point is concerned, it seems to me that Shri Agrawal is not right in his contention that a plaintiff can evict his tenant on the basis of the denial of the former's title in the suit itself. I think Shri Prakash Gupta, learned counsel for the defendant-appellant, is right in contending that the denial of title must precede the suit and in the plaint the plaintiff should set out a ground based on the defendant's denial of his title. Section 111(g) lays down that a lease of immoveable property is determined by forfeiture in certain circumstances. Sub-clause (ii) provides for determination of lease by forfeiture 'in case the lessee renounces his character as such by setting up a title in a third person or claiming title in himself'. However, it is clearly provided in the last part of Clause (g) that the lessor or his transferee must give notice in writing to the lessee of his intention to determine the lease, In view of this provision about a notice, which has to be given prior to the institution of the notice and which must be based on the existence of one of the three conditions which have been enumerated in Sub-clauses (i), (ii) and (iii) of Clause (g) of Section 111. I cannot see how a plaintiff can take advantage of the said provision by a denial of title which is made for the first time by the defendant during the pendency of the suit.
26. Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act, 1947 laid down the circumstances in which a landlord could file a suit for the eviction of his tenant without the permission of the District Magistrate. Clause (f) of Sub-section (1) of the said section provides as follows:
'That the tenant has renounced his character as such or denied the title of the landlord and the latter has not waived his right or condoned the conduct of the tenant;'
The true legal significance of this provision is that in case there is a denial of titie then a suit can be filed by the landlord on (he basis of this clause without obtaining the permission of the District Magistrate. But the requirement contained in Section 111(g) of a prior notice expressing the lessor's or his transferee's intention to determine the lease remains to be complied with. It has been repeatedly held that the provisions contained in the U. P. (Temporary) Control of Rent & Eviction Act, 1947 were not derogative of the provisions contained in the T. P. Act. The requirements of law contained in Section 106 or in Section 111 of the T. P. Act do not stand abrogated by anything contained in the various clauses of Section 3 of the aforesaid Act of 1947. Therefore, I hold that where a landlord seeks to justify the maintainability of his suit without the District Magistrate's permission under Section 3 (1) (f), he has to show that he has complied with the requirement of notice as contained in Section 111(g) of the T. P. Act. If this be the correct legal position then it seems to me that there is no scope tor an argument that the plaintiff can take advantage of the denial of title contained in the written statement filed by the defendant tenant in the very suit itself.
Moreover, it seems to me that on the well-known rules of pleading the accrual of cause of action based on the denial of the plaintiff's title has to be prior to the institution of the suit. In : 2SCR906 the Court had to decide whether the provision of a notice in Section 111(g) could be called a rule of equity applicable to the situations where the lease was not governed by the T. P. Act. It was held that where the lease was not governed by the T. P. Act then it was not obligatory that such a notice should be sent before the institution of the suit. Obviously, in the instant case we are not concerned with a situation where the T. P. Act is not applicable. I have already held that the lease in the instant case stands governed by the provisions of the said Act.
27. In 1975 All LJ 377 there was no occasion for considering the instant controversy. In the said case the denial of title had preceded the institution of the suit.
28. In : AIR1972All494 again no such controversy arose as is involved in the present appeal. Therefore, this case is not of any help to us.
29. As a matter of fact, except the two Punjab cases and the one reported in AIR 1951 Assam 70, none of the cases relied on by Shri Agrawal has really considered the instant controversy and, therefore, I do not think it necessary to deal with them individually- So far as the two Punjab cases are concerned, in AIR 1971 Punj 434 the learned single Judge has merely followed the law laid down in . The latter judgment is that of a Division Bench and it has laid down as follows (at pp. 512-13):
'From this observation it is clear that a disclaimer or renunciation in clear and unequivocal terms, in the written statement to the suit can also result in the forfeiture of the tenancy. The argument of the learned counsel for the appellants that the denial of the tenancy in the written statement cannot be taken advantage of in that suit but can be taken advantage of only in a subsequent suit to be filed by the landlord, does not appeal to us. It will lead to unnecessary multiplicity of legal proceedings if the landlord is obliged to file a second suit for ejectment of the tenant on the ground of forfeiture. entailed by his denial of his character as a tenant in the written statement and not allowed to avail of that plea in the suit in which the written statement has been filed especially when it has been pleaded in the plaint that the defendant had denied his character as a tenant of the plaintiff orally before the institution of the suit was pleaded in the two suits out of which the present appeals have arisen.'
However, in the subsequent part of the judgment the Division Bench also observed :
'It is correct that no cause of action will accrue to landlord to eject the tenant on the ground of forfeiture of tenancy unless the forfeiture had taken place prior to the institution of the suit.'
The Bench held that the binding force of AIR 1919 PC 1 which was relied on by the Full Bench of the Lahore High Court in Mt. Gindori v. Sham Lal, (AIR 19.16 Lab 330) had been taken away by the judgment of the Supreme Court in : AIR1965SC1923 . The following passage from the said Supreme Court's judgment was extracted and relied on in the Punjab case (at p. 1928):
'No doubt the provisions of the T. P. Act were not, it is stated in terms, applicable to the area in question, but it has been laid down that the principles embodied in Section 111(g) are equally applicable to tenancies to which the Act does not apply on the ground of the same being in consonance with justice, equity and good conscience..........
We consider the law to be that unless there is a disclaimer or renunciation in cleat and unequivocal terms, whether the same be in a pleading or in other documents, no forfeiture is incurred.'
30. In my view with respect, the Punjab case has not correctly interpreted the aforesaid Supreme Court pronouncement. Far from dissenting from the law laid down in AIR 1919 PC 1 the Supreme Court in the said case approved of the law laid down in the said Privy Council pronouncement. The observations, on which the Punjab Court placed reliance, certainly do not lay down that a plaintiff can take advantage of the denial of title made by the defendant in that very suit. The observations merely say that the denial may be made in the pleadings or in other documents. In my view, the Punjab decision purporting to be based on : AIR1965SC1923 does not lay down the correct law. Moreover, as I have noticed 'above, the Division Bench itself has made a contrary observation in its judgment while observing that the cause of action must arise before the institution of the suit
31. In AIR 1951 Assam 70 the instant controversy was not considered. However, an observation was made by the learned Chief Justice silting in a Division Bench of the said Court in the following manner (at p. 72): 'In any case, in view of the written statement of the defendant denying the landlord's title the defendant would not be entitled to a notice to quit' With respect, I do not agree with the said observation.
32. In my view, the cases relied on by Shri Prakash Gupta clearly substantiate his contention that the denial of title must precede the institution of the suit In AIR 1919 PC 1 it was laid down:
'Denial in the suit will not work a forfeiture of which advantage can be taken in that suit, because the forfeiture must have accrued before the suit was instituted.'
33. As I have already stated, the aforesaid Privy Council pronouncement has been relied on and approved in : AIR1965SC1923 .
34. In AIR 1924 All 726 a learned Judge of this Court laid down as follows :
'On the question of notice, the latter court observed that inasmuch as the defendants had denied the title of the plaintiffs no notice was necessary. There was no proof, however, that the title of plaintiffs had been denied prior to the suit; and as held in Haidri Begam v. Nathu. ((1894) ILR 17 All 45) that ground cannot be sustained.
35. : AIR1958All847 has not considered the instant controversy. It considered the question as to what amounts to denial ot title.
36. In Daya Ram v. Chiraimji Lal : AIR1977All449 it has been laid down as follows (at p. 451 of AIR):
'Even when the lessee sets up title in himself or in third person, the lease is to be forfeited by means of notice, -and does not stand automatically forfeited.
Section 114-A clearly provides for a notice under certain circumstances when the breach of an express condition can be remedied so that a further opportunity may be allowed to the lessee to remedy the breach. But the notice under Section 111(g) is necessary for determining the lease even if it is determined by forfeiture. Similarly, notice is necessary under Section 111(h) read with Section 106 of the Act
It makes no difference whether the lessee himself renounces the character as such by setting up a title in a third person or by claiming in himself or puts another person in possession of the property through whom the character of the lessee as such is renounced and a title is set up in him as well as in that third person.'
37. I do not consider it necessary to refer to other cases relied on by Shri Prakash Gupta inasmuch as I think that the point stands concluded by the aforesaid pronouncement of the Privy Council and affirmed by the Supreme Court. Moreover, I should also like to observe that it has been held that if a tenant sets up more favourable terms regarding his tenancy than is admitted by the plaintiff landlord, it cannot be said to be a case of the denial of the plaintiff's title. In the aforesaid Privy Council pronouncement it was observed as follows:
'The qualification that the denial must be in clear unmistakable terms has not unfre-quently been applied by the Courts in India, which have held that where a tenant admits that he does hold as tenant of the person who claims to be his landlord, but disputes the terms of the tenancy, and sets up terms more favourable to himself, he does not, though he fails in establishing a more favourable tenancy, so far deny the landlord's title as to work a forfeiture. See Vithu v. Dhondi ((1890) ILR 15 Bom 407). Venkaji Krishna Nadakarni v. Lakshman Devja Kandar (1895) ILR 20 Bom 354 (FB), Unhamma Devi v. Vaikunti Hedge, (1893) ILR 17 Mad 217 :3 Mad LJ 287 and Chinna Narayayudu v. Harischendana Deo (1903) ILR 27 Mad 23).'
In the present case, the tenant asserted that Jhe paid rent for the land which, according to his allegation., was taken on a permanent basis for raising constructions. Applying the ratio of the Privy Council case, therefore, it has to be held that there was no denial of the plaintiff's title. The defendant tenant was asserting more favourable terms in respect of his tenancy. In my view, therefore, the second point has to be decided in favour of the defendant-appellant and against the plaintiff-respondent.
38. I take up the third point now.
39. Section 29-A which was added to U. P. Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 by the U. P. Act No. 28 of 1976 lays down as follows :
'29-A. Protection 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 laud 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 Subsection (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 applies 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.' It will be seen that on the plea raised by the defendant in his written statement it is not open to him now to invoke the aid of the said provision. His case was that he had taken the open land on rent and that the letting was on a permanent basis and for the purpose of enabling him to raise constructions of permanent nature. In para 20 of the written statement the defendant alleged:
'20. That it is wrong to say that the deft, made any material alterations or encroached upon any land of the plff. As a matter of fact whatever land were initially taken by the deft, has been in his possession, he having raised constructions of a permanent nature thereon at huge costs. As the land was permanently given to the deft, for raising constructions of a permanent nature no question of any permission or consent of the plff. could arise or making any alteration or laising any further constructions.'
In this view of the matter, it seems to me that it is not open to Shri Prakash Gupta now to seek the aid of the newly added Section 29-A to the U. P. Act No. 13 of 1972. The trial court did not believe the defendant's allegation that he had orally taken the permission from the plaintiff to convert the kachcha accommodation into a pucca one. On the other hand, the said court gave the benefit of Section 3 (1) (c) of U. P. Act. No. 111 of 1947 to the plaintiff. The lower appellate court did not believe the plaintiff in his stale-merit that not the open land but accommodation was let out to the defendant However, the said court also held that the plaintiff had not encouraged the raising of the constructions by the defendant and the plaintiff was not responsible for the raising of the said constructions by the defendant. The suit was held not to be barred by the principles of estoppel. In my opinion, both the courts below have given a finding against the defendant on the question whether the constructions were made by the defendant with the consent of the plaintiff. I do not think it necessary to frame an additional issue on the basis of the plea based on Section 29-A in view of the nature of the pleadings contained in the written statement and also in view of the finding recorded by both the courts below. Moreover, it has come in evidence that both the original lessor and the lessee died during the pendency of the litigation and thus their heirs cannot be expected to know about the terms of the original tenancy and whether the constructions, if at all raised by the defendant, were raised with the consent or the permission of the plaintiff.
In my opinion, the defendant-appellant is not entitled to the benefit of Section 29-A of U. P. Act No. 13 of 1972.
40. The trial court granted the decree on the basis of material alterations made by the defendant without the consent of the plaintiff. The lower appellate court maintained the decree on the ground that open land was let out to the defendant. The rent control legislation, it is well-known, has never applied to open land. Section 29-A is an exception which is not applicable to the facts of this case, ft is applicable only to an accommodation. In the present case, therefore, the defendant appellant cannot succeed because the decree for eviction is maintainable On either of the aforesaid two grounds.
41. The appeal fails and is hereby dismissed with costs.