Sultan Singh, J.
(1) (ORAL). This appeal under Clause 10 of the Letters Patent is directed against the judgment of the learned Single Judge dated 4th January, 1972 in R.S.A. No. 52 of 1969. It has arisen out of a suit filed by the Respondent Sheikh Abdul Gaffar against the appellant Noor Elahi praying for ejectment of the latter and for recovery of arrears of rent. The trial court decreed the suit. The first appeal filed before the Additional Senior Sub Judge and the second appeal filed in this Court were dismissed.
(2) The plaintiff-respondent filed a suit praying for the ejectment of the appellant Noor Elahi from the suit plot of land and for recovery of Rs. 115.62 on account of arrears of rent for three years ending 31st December, 1965. The plaintiff alleged that he was the owner of the suit plot, that the appellant-defenda,nt was in occupation of the plot as a tenant on behalf of the plaintiff at a monthly rent of Rs. 3.12 P, that a sum of Rs. 115.62 as arrears of rent was due, that the tenancy of the defendant was terminated by a notice dated 6th December, 1965 and since the defendant did not vacate the suit plot inspire of the termination of tenancy, the suit for ejectment and recovery was filed.
(3) The defendant contested the suit. He pleaded that the plaintiff was not the owner, that there was no relationship of landlord and tenant between the parties, that he was a tenant in respect of the premises and not of any vacant plot and as such the suit was not maintainable and that the Civil court had no jurisdiction. The plaintiff filed replication repudiating the allegations of the defendant. The plaintiff further pleaded that he was charging rent only for the vacant plot and that the tin shed on the plot was put up by the defendant himself. The plaintiff further stated that he previously filed an application before the Rent Controller under mistaken advice and on Realizing the said mistake of the counsel, he withdrew the application on the ground that the Controller had no jurisdiction. On the pleadings of the parties the following issues were framed :
(1)Whether there is relationship of tenant and landlord between the parties with reference to property mentioned in Para No. 1 of the plaint ?
(2)Whether the suit property is vacant plot and not premises as defined in Delhi Rent Control Act, 1958, it not, to what effect ?
(3)Whether the tenancy of the defendant has been terminated by service of a valid notice to quit ?
(4)What amount, if any, is due to the plaintiff on account of arrears of rent from defendant in the circumstances of plaint ?
(4) The trial court decreed the suit holding that when the defendant occupied the plot, it was a vacant plot of land and that he constructed a Khokha on the plot subsequently that he was tenant in respect of the vacant plot and not of the premises a? defined in Rent Control Act, that the tenancy was terminated by a valid notice and that a sum of Rs. 115.62 was due on account of arrears of rent. Accordingly a decree for ejectment and recovery of Rs. 115.62 was passed against the defendant appellant. The first appeal was dismissed by the Additional Senior Sub Judge on 10th January, 1969. An application for additional evidence was filed on behalf of the appellant before the Additional Senior Sub Judge but the same wa,s also rejected. The findings of the trial court were confirmed by the Additional Senior Sub Judge. The second appeal filed by the appellant was also dismissed by the learned Single Judge confirming the findings of the courts below
(5) The learned counsel for the appellant has raised two points. Firstly that the Additional Senior Sub Judge ought to have allowed the filing of a plan of the premises as additional evidence. Secondly that the plaintiff was estopped from denying that the property was not premises within the meaning of the Delhi Rent Control Act. As regards the first question the counsel for the appcllant wanted to prove on record by filing the plan that the plaintiff was not the owner of the property. The Additional Senior Sub Judge rejected the application for additional evidence on the ground that there was sufficient evidence to dispose ail the matters between the parties. He held that the disputes between the parties were, whether there was relationship of landlord and tenant and whether plaintiff was entitled to claim eviction from she plot or not. For both these disputes, it was held, the filing of me plan was not necessary. The learned counsel for the appellant contended that if the plaintiff is not held to be the owner, no decree for ejectment can be passed against the appellant. We do not agree with this contention of the learned counsel for the appellant. There is no issue regarding the ownership of the property in suit. The only issue is with regard to relationship of landlord and tenant. Although the plaintiff pleaded that he was the owner of the property in suit which fact was denied by the defendant but no issue was claimed. We are of the opinion that it was also unnecessary to frame an issue , regards ownership of the plaintiff. Thu's evidence relating to ownership of the property in suit is irrelevant for the purposes of the present proceedings and we are thereforee, of the opinion that the Additional Senior Sub Judge and the learned Single Judge rightly rejected the appellant's prayer for additional evidence in the form' of filing the plan of the. property alleged to be attached to the Sale deed in favor of the plaintiff.
(6) As regards the second contention that the property was premises within the meaning of the Delhi Rent Control Act and not plot the learned counsel for the appellant relies upon an application for eviction by the plaintiff before the Rent Controller describing the suit plot as premises. His argument is that the plaintiff was estopped now from pleading that the property was not premises. In other words he contends that the plaintiff cannot go beyond the admission made by him before the Rent Controller. There is no force in this argument. Whether a property is 'premises' within the meaning of the Rent Control Act is not a pure question of fact but a mixed question of law and fact. An admission as such is not conclusive and it is open to the plaintiff to show that the said admission was not true. It was also open to the plaintiff to explain how the admission was made. The plaintiff as a witness deposed that he withdrew the eviction application as the property was a plot and not a premises. In the replication filed by him in the present suit he pleaded that the eviction application was filed before the Rent Controller on mistaken advice and that it was withdrawn when the mistake was discovered. It has been heldb in the present proceedings that initially the defendant occupied the plot as a tenant and that subsequently a Khokha, was constructed by him. For the purpose of determination as to whether the property is preises or not one has to see as to what was actually let by the landlord in a particular case as the time of letting. The more fact that some temporary construction was raised by the tenant for his own use on the vacant site would not convert the same into premises. The courts have held under Issue No. 2 that it was a vacant plot a.t the time of occupation by the defendant and in fact the defendant admitted the same in his statements made before the Assistant Custodian (Exs. P-6 and P-7). According to the defendant himself the plot of land was the alleged evacuee property which was dealt with by the Custodian.
(7) No other point was argued. There is no merit in the appeal and thereforee, we dismiss the same with no order as to cost.