# Sardar Surjeet Singh v. Om Prakash

- **Citation:** (2011) 1 ILRA 6
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-01-12
- **Bench:** Sanjay Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sardar-surjeet-singh-v-om-prakash-41900
- **Pages:** 7

## Headnote

Code of Civil Procedure Section 100readwith Transfer of Property Act,
Section -106(1)-lease of open land-for
four years to run saw mill-the tin shed
erected-subsequently-whether such tin
shed within the meaning of building-?-
held-"No"-so far notice part is concernlease for four years and not year to
year-section 106(1) not attracted-six
month notice held proper only the civil
court has jurisdiction.
Held: Para 11 and 20

It is thus clear that the defendantappellant could erect a tin shed for his
necessity in running the saw mill. There
was no tin shed that was let out by the
plaintiff-respondent. The averments in
paragraph 1 of the plaint do not indicate
a contrary intention and it refers to the
terms and conditions incorporated in the
registered agreement dated 23.03.1979.
The relationship of the parties are
governed by the registered agreement
hence only that agreement can be looked
into to determine as to what was let out.
It was definitely only the land. The tin
shed was raised subsequent to the start
of the lease period and it was made by
the defendant-appellant. The tin shed so
erected
for
running
the
saw
mill,
therefore,
cannot
be
held
to
be
accommodation or a building for the
purposes of U.P. Act No.13 of 1972.

In the present case, admittedly the lease
was given for running a saw mill over the
land with a contemplation that tin shed
could be erected. No part of the building
was given on rent. When the lease was
not month to month but it was for a
period of four years, the notice of six
months was a valid notice. It was a
protected lease. The second part of
section 106(1) of Transfer of Property
Act was clearly not applicable in the
facts and circumstances of the present
case.
Case law discussed
2010(3) ARC 750; AIR 1995 SC 1401; AIR
1995 Supreme Court 2482; JT 1995(3) SC
329;

## Text

6 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
should adopt a pragmatic approach. A
distinction must be made between a case
where the delay is inordinate and a case
where the delay is of a few days. Whereas
in the former case the consideration of
prejudice to the otherwise will be a
relevant factor so the case calls for a
more cautious approach."

23. For the foregoing reasons, the
order dated 04.09.1987 passed by the
court below is set aside. Revision is
allowed. Matter is remanded back to the
court
below
to
decide
afresh
in
accordance
with
law
after
giving
opportunity of hearing to the parties
concerned.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.01.2011

BEFORE
THE HON'BLE SANJAY MISRA, J.

Second Appeal No. - 26 of 2011

Sardar Surjeet Singh

 ...Appellant
Versus
Om Prakash

 ...Respondent

Counsel for the Petitioner:
Sri Divakar Rai Sharma

Counsel for the Respondent:
Sri Pankaj Agrawal

Code of Civil Procedure Section 100readwith Transfer of Property Act,
Section -106(1)-lease of open land-for
four years to run saw mill-the tin shed
erected-subsequently-whether such tin
shed within the meaning of building-?-
held-"No"-so far notice part is concernlease for four years and not year to
year-section 106(1) not attracted-six
month notice held proper only the civil
court has jurisdiction.
Held: Para 11 and 20

It is thus clear that the defendantappellant could erect a tin shed for his
necessity in running the saw mill. There
was no tin shed that was let out by the
plaintiff-respondent. The averments in
paragraph 1 of the plaint do not indicate
a contrary intention and it refers to the
terms and conditions incorporated in the
registered agreement dated 23.03.1979.
The relationship of the parties are
governed by the registered agreement
hence only that agreement can be looked
into to determine as to what was let out.
It was definitely only the land. The tin
shed was raised subsequent to the start
of the lease period and it was made by
the defendant-appellant. The tin shed so
erected
for
running
the
saw
mill,
therefore,
cannot
be
held
to
be
accommodation or a building for the
purposes of U.P. Act No.13 of 1972.

In the present case, admittedly the lease
was given for running a saw mill over the
land with a contemplation that tin shed
could be erected. No part of the building
was given on rent. When the lease was
not month to month but it was for a
period of four years, the notice of six
months was a valid notice. It was a
protected lease. The second part of
section 106(1) of Transfer of Property
Act was clearly not applicable in the
facts and circumstances of the present
case.
Case law discussed
2010(3) ARC 750; AIR 1995 SC 1401; AIR
1995 Supreme Court 2482; JT 1995(3) SC
329;

(Delivered by Hon'ble Sanjay Misra, J.)

1. Heard Sri Diwakar Rai Sharma,
learned counsel for the defendant-appellant
and Sri Pankaj Agarwal, learned counsel
for the plaintiff-respondent.

2. This is a second appeal under
Section 100 of the Code of Civil Procedure
1 All] Sardar Surjeet Singh V. Om Prakash
7
filed against the judgment and decree dated
29.9.2010 passed in Civil Appeal No.65 of
2005 by Additional District Judge, Court
No.11, Aligarh whereby the appeal of the
plaintiff-respondent has been allowed and
the suit for eviction has been decreed.

3. Sri Sharma has submitted that the
land in question contained a tin shed. A tin
shed would be covered in the definition of
a building hence the land was appurtenant
to a building and, therefore, the provisions
of U.P.Act No.13 of 1972 (U.P.Urban
Building Regulation of Letting, Rent and
Eviction) Act, 1972) would apply and the
trial court has rightly dismissed the suit of
the plaintiff-respondent on that ground. He
submits that the first appellate court has
illegally held that the suit could be
maintainable in the Civil Court and the
provisions of U.P.Act No. 13 of 1972
would not apply in the case. His
submission is that when there is a tin shed
which is let out, it would be an
accommodation and will be covered within
the definition of 'building' as given in
Section 3 of U.P.Act No. 13 of 1972.
According to him, the tin shed along with
land was let out to the defendant-appellant
for running a saw mill.

4. The second submission is that six
months' notice under section 106 of the
Transfer of Property Act, 1882 given by
the
plaintiff-respondent
was
invalid
inasmuch as it was a month to month
tenancy and, therefore, six months' notice
was not required but notice as provided in
the second part of Section 106 (1) of
Transfer of Property Act, 1882 could alone
terminate the lease.

5. In favour of his first submission
Sri Sharma has placed reliance on the
decision of a learned single Judge of this
court in the case of Kali Ram vs. Mistri
Udai reported in 2010(3) ARC 750 and
has referred to paragraphs 23, 24 and 25 of
the said decision. Paragraphs 23, 24 and 25
of the judgment are quoted below:-

"23. Similarly, in the case of Koti
Saroj Anamma & Anr. V. Jonnalagada
Malleswara Rao, AIR 1995 SC 1401:
1995 SCFBRC 379, the Apex Court has
held as follows:

"7. Looking to the evidence, it is clear
that the shed, which has a zinc sheet roof,
was erected only to protect the Saw mill
machinery. What was leased out to the
respondent was substantially the Saw mill
machinery for the purpose of carrying on
timber/Saw mill business. The shed was
merely erected to shelter the machinery.
The dominant purpose of the lease was to
lease out the Saw mill machinery. In order
that the lease should be covered by the
Andhra Pradesh Buildings (Lease, Rent
and Eviction) Control Act, 1960, the lease
should be of a building as defined in
Section 2(iii). It should, therefore, be a
lease of any house or a hut or a part of a
house or a hut let for residential or nonresidential purposes. It would include
gardens, grounds, garages and outhouses
appurtenant to such a house or a hut. In
the present case, however, the lease is not
of any house or a hut or part of a house or
a hut. The lease is of a Saw mill machinery
which is covered by a zinc sheet shed. The
dominant purpose of the lease is to lease
out the machinery. The shed is only an
adjunct. It is also pointed out that a
covering over the machinery in the shape
of a structure consisting of zinc sheets
supported on poles can hardly be called a
house or even a hut. In any case, looking to
the dominant purpose of the lease, the two
courts below have rightly come to the
8 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
conclusion that the lease is not covered by
the provisions of the Andhra Pradesh
Buildings (Lease, Rent and Eviction)
Control Act. 1960."

24. The proposition of law as laid
down by the Apex Court, in my considered
view, clinches the issue in favour of the
plaintiff landlord. The pleadings in this
regard, para-4 A of the plaint in particular
has been mentioned in the earlier part of
the judgment. The tenant D.W.-1 in his
deposition has stated that he is carrying on
business of repairing tractors and took the
property in question for the said purpose.
Further he is repairing the tractors on
open piece of land. He states that the
kothari is being used for the purpose of
keeping tools. Thus, it is admitted case of
the defendant tenant that he took the
property in question for the purposes of
repairing the tractors and keeping the
tools in the kothari. It has also been
noticed herein that the tin shed/kothari is
in existence on one of the corners of the
land in question having small dimensions 8
feet x 8 feet while the total dimension of the
land in question is 52 feet x 42 feet.

25. As against above, learned counsel
for the opposite party referred Ram
Dularey v. D.D. Jain and others, 1965
ALR 722, a case under the old Act with
reference to the question as to whether
jhopari
with
thatched
roof
is
accommodation or not. Jhopari has been
held to be a building. The said decision is
distinguishable on fact as the question
involved herein i.e. letting of a vacant
piece of land having small roofed structure
is not there. Obviously, if the roofed
structure has been let out, it will be an
accommodation. The said case is not much
assistance to the defendant opposite party.
Similarly
Om
Prakash
v.
the
III
Additional District Judge, Meerut and
other,
1981
ARC
278,
is
also
distinguishable on fact as it was with
respect to a temporary wooden "Khoka"
kept on the land in suit. It was held that the
building may also include within its scope
any structure which may not be a
permanent structure. This case is also not
of much help and is distinguishable on
facts. For the same reason, Anwar Ahmad
v.
IVth
Additional
District
Judge,
Saharanpur and others, 1981 ARC 654, is
also distinguishable. Lastly, reference was
made to the Apex Court Judgment in
Harish Chandra and another vs. Mohd.
Ismail and others, 1990(2) ARC 357, in
this case a piece of ground over which
there is a tin shed was let out. The Apex
Court has remanded the matter to find out
whether the said construction was put up
by the landlord or tenant first. There is no
discussion on the issue presently involved
in the case on hand and is therefore, not of
much assistance. ''

6. Insofar as his second submission is
concerned, he has placed reliance on the
decision of the apex court in the case of
Shri Janki Devi Bhagat Ram Trust v.
Ram Swarup Jain reported in AIR 1995
Supreme Court 2482.

7. The sum and substance of the
argument of Sri Sharma is, firstly, that the
land and tin shed in question was covered
under the provisions of U.P.Act No.13 of
1972 and his second submission is that the
notice of six months was invalid in view of
the second part of Section 106(1) of the
Transfer of Property Act, 1882. He has
emphasized that the lease was a month to
month lease.

8. Having considered the submissions
of learned counsel for the defendant-
1 All] Sardar Surjeet Singh V. Om Prakash
9
appellant and perused the impugned order,
it is clear that the trial court was of the
view that the tin shed and the land in
question would be covered under the
definition
of
appurtenant
land
and
building. Such a view of the trial court has
been upset by the first appellate court and
it was held that the land in question was let
out for running a saw mill which is a
manufacturing process. The lease deed has
been filed as Annexure-3 to the affidavit
supporting the Stay Application. A perusal
of the lease deed indicates that the purpose
of letting out the land was for running a
saw mill. The period stipulated therein was
four years. The condition was that rent
shall be payable month to month.

9. So far as the submission of Sri
Sharma that the land in question is
appurtenant to the building and the tin shed
is an accommodation is concerned, it is not
denied that the plaintiff-respondent is the
owner of the premises in question. It is also
not denied that the defendant-appellant
was leased out the premises in question for
the purpose of running a saw mill wherein
a tin shed was erected. In the conditions of
the lease deed it was provided that a tin
shed for the purposes of running the saw
mill can be erected by the defendantappellant. However, it appears that in
paragraph 1 of the plaint it has been stated
by the plaintiff-respondent that the tin shed
and the land was let out. Such an averment
does not, in any manner, negate the
stipulation in the lease deed that the
defendant-appellant could erect the tin
shed for running a saw mill.

10. A perusal of the lease deed
would, therefore, be necessary. It stipulates
that the land would be let out for a period
of four years on monthly rent. The lessee
could vacate the land or the parties could,
by mutual consent, enter into a lease for
further period. In the event the lessee
vacates the land he was to remove all his
effects therefrom. The lease was entered
into only for the purpose of running the
saw
mill. The lease permitted the
defendant-appellant to raise a tin shed for
running the saw mill, therefore, the
dominant purpose was to let out the land
on lease for running the saw mill. The
dominant purpose of the lease was not to
let out a tin shed. In case, there was a tin
shed already existing and was let out then
it would have found mention in the lease
deed. On the contrary the lease deed in
condition
no.2
provides
as
quoted
hereunder:-

"2. izFke i{k ;fn pkgs rks [kkyh LFkku ij
mij NIij o Vhu viuh t#jr ds fygkt ls vius
[kPkZs ls Myok;saA "

11. It is thus clear that the defendantappellant could erect a tin shed for his
necessity in running the saw mill. There
was no tin shed that was let out by the
plaintiff-respondent. The averments in
paragraph 1 of the plaint do not indicate a
contrary intention and it refers to the terms
and
conditions
incorporated
in
the
registered agreement dated 23.03.1979.
The relationship of the parties are
governed by the registered agreement
hence only that agreement can be looked
into to determine as to what was let out. It
was definitely only the land. The tin shed
was raised subsequent to the start of the
lease period and it was made by the
defendant-appellant. The tin shed so
erected for running the saw mill, therefore,
cannot be held to be accommodation or a
building for the purposes of U.P. Act
No.13 of 1972.
10 INDIAN LAW REPORTS ALLAHABAD SERIES [2011

12. It is also not disputed that no part
of the neighbouring building is in the
tenancy or lease of the defendantappellant. Consequently the situation is
that the land in question has been let out to
the defendant-appellant for the purposes of
running a saw mill. The provisions of
Section 3 of U.P.Act No.13 of 1972 refer
to a 'tenant' in relation to a building either
for residential purpose or for nonresidential purpose. It is 'tenant' which has
been defined therein and the building
includes any land including any garden,
garages and out-houses appurtenant to
such building. When the tenancy or lease
was not of the building, the defendantappellant cannot claim the benefit of
Section 3 of U.P.Act No.13 of 1972
inasmuch as he was not a tenant of any
building and, therefore, the land in
question could not be brought within the
ambit of appurtenant land to a 'building' of
which
the
defendant-appellant
was
admittedly not a tenant.

13. Sri Pankaj Agarwal, learned
counsel for the plaintiff-respondent has
cited a decision of Supreme Court in the
case of Koti Sarroj Anamma & Another
Versus Jonnalagada Malleswara Rao
reported in JT 1995(3) SC 329 and has
referred to paragraphs 9 and 10 thereof.
Paragraphs 9 and 10 are quoted below:-

"9. Looking to this evidence, it is
clear that the shed, which has a zinc sheet
roof, was erected only to protect the Saw
mill machinery. What was leased out to the
respondent was substantially the Saw mill
machinery for the purpose of carrying on
timber/Saw mill business. The shed was
merely erected to shelter the machinery.
The dominant purpose of the lease was to
lease out the Saw mill machinery. In order
that the lease should be covered by the
Andhra Pradesh Buildings (Lease, Rent
and Eviction) Control Act, 1960, the lease
should be of a building as defined in
Section 2 (iii). It should, therefore, be lease
of any house or a hut or a part of a house
or a hut let for residential or nonresidential purposes. It would include
gardens, grounds, garages and out-houses
appurtenant to such a house or a hut. In
the present case, however, the lease is not
of any house or a hut or part of a house or
a hut. The lease is of Saw mill machinery
which is covered by a zinc sheet shed. The
dominant purpose of the lease is to lease
out the machinery. The shed is only an
adjunct. It is also pointed out that a
covering over the machinery in the shape
of a structure consisting of zinc sheets
supported on poles can hardly be called a
house or even a hut. In any case, looking to
the dominant purpose of the lease, the two
courts below have rightly come to the
conclusion that the lease is not covered by
the provisions of the Andhra Pradesh
Buildings (Lease, Rent and Eviction)
Control Act, 1960.

10. The respondent relied upon a
decision of a Full Bench of the Andhra
Pradesh High Court in the case of
Mohammad Jaffar Ali v. S. Rajeswara Rao
(1971) 1 Andhra Pradesh Weekly Reports
194). In that case, there was a lease of the
cinema theatre. The Court held that the
lease was essentially a demise of the
building with accessories like furniture and
machinery, the dominant purpose of the
demise was to lease the cinema theatre
building and hence, the provisions of the
Andhra Pradesh Buildings (Lease, Rent
and Eviction) Control Act, 1960 apply to
such a lease. In the present case, the
dominant purpose is clearly to lease out
the Saw mill machinery. A zinc sheet shed
which has been erected merely to cover the
1 All] Sardar Surjeet Singh V. Om Prakash
11
machinery cannot be a pre-dominant
reason for the lease. The High Court,
therefore, was not right in coming to the
conclusion that the lease was governed by
the
provisions
of
Andhra
Pradesh
Buildings (Lease, Rent and Eviction)
Control Act, 1960."

14. From the aforesaid decision, it is
quite clear that it has to be lease of a house
or a hut or a part of a house or part of a hut
let out for residential or non-residential
purpose. If there is such a lease of a
building then it will include appurtenant
land, garden, garage and out-houses. But,
if there is no lease of any house or a hut or
a part of a house or part of a hut then the
land which has been leased out would not
be appurtenant land but it would be simply
a land leased out. The submission made by
Sri Sharma is, therefore, mis-conceived
and cannot be accepted.

15. Consequently, insofar as the
present lease is concerned, the provisions
of first part of Section 106(1) of Transfer
of
Property
Act
would
be
clearly
applicable even in the absence of a contract
and in view of the registered lease dated
23.03.1979. Sub clause (1) of Section 106
is quoted below:-

"106. Duration of certain leases in
absence of written contract or local
usage.-

(1) In the absence of a contract or
local law or usage to the contrary, a lease
of immovable property for agricultural or
manufacturing purposes shall be deemed
to be a lease from year to year, terminable,
on the part of either lessor or lessee, by six
months' notice; and a lease of immovable
property for any other purpose shall be
deemed to be a lease from month to month,
terminable, on the part of either lessor or
lessee, by fifteen days' notice."

16.

The
aforesaid
provision
contemplates of two situations of a deemed
lease. The first
for
agricultural
or
manufacturing purpose would be deemed
to be a lease from year to year and
terminable by six months' notice. The
second part is that a lease of immovable
property for any other purpose would be
deemed to be a lease from month to month
terminable by 15 days' notice.

17. In the present case, the lease deed
is available on record. It contemplates a
period of four years. It is not a case of
absence of a contract. The relevant portion
as contained in the recital part of the leasedeed and condition no.8 of the testatum
component of the lease are quoted
hereunder:-

"ge fd ljnkj lqjthr flag vkRet ljnkj
txr flag fuoklh 'kkg deky jksM 'kgj vyhx<
izFke i{k o vkse izdk'k vkRet ykyk y[keh pUnz
fuoklh eqgYyk 'kkg deky 'kgj vyhx< vyhx<
f}rh; i{k gS tks fd ,d fdrk Hkwfe e; lk;cku Vhu
lhek fuEufyf[kr fLFkr eqgYyk 'kkg deky 'kgj
vyhx< ds Lokeh o vf/kdkjh f}rh; i{k gS vr%
mi;qDr tk;nkn dks 200@& nks lkS :i;k ekgokj
rkjh[k 1&8&79 ls okLrs pkj lky izFke i{k us
f}rh; i{k ls fdjk;s ij yh gS ftlesa izFke i{k vkjk
e'khu dk dkjksokj vkjk e'khu o fctyh izFke i{k
vius [kpsZ ls yxkys ftls og [kkyh djrs le;
m[kkM dj ys tkosxk A

8&mij fy[kh pkj lky dh eqnnr [kRe gksus
ij izFke i{k foyk ghyk o gqTtr o >xMk fd;s
cxSj mi;qDr LFkku dks ftl 'kDy esa fdjk;s ij
fy;k gS mlh 'kDy esa [kkyh djds f}rh; i{k ds
dCts esa ns nsxk vkSj izFke i{k dk dksbZ gd mijksDr
LFkku ij ugh jgsxkA"

18. The first appellate Court has
recorded finding of fact that the purpose of
the lease was for setting up a saw mill and
12 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
not for any other purpose. In paragraph 19
of the judgment it has been recorded that
the lease is of open land and not of any
permanent constructions which could, in
any manner, be a building or an
accommodation for any purpose. In a
second appeal the evidence cannot be reappreciated to record a finding of fact by
substituting the view taken by the Court
below. The Court has considered the lease
deed and recorded its finding of fact. Such
finding of fact cannot be held to be
perverse in any manner.

19. The submission of Sri Sharma
that this is a month to month lease is
clearly mis-conceived and against the
record. The lease was for four years on
payment of monthly rent.

20. In the present case, admittedly the
lease was given for running a saw mill
over the land with a contemplation that tin
shed could be erected. No part of the
building was given on rent. When the lease
was not month to month but it was for a
period of four years, the notice of six
months was a valid notice. It was a
protected lease. The second part of section
106(1) of Transfer of Property Act was
clearly not applicable in the facts and
circumstances of the present case.

21. The findings given by the first
appellate court cannot be said to suffer
from any error of law. They are findings of
fact based on evidence. No substantial
question of law arises in this appeal. The
appeal is accordingly dismissed.

No order is passed as to costs.
---------

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.01.2011

BEFORE
THE HON'BLE RAJ MANI CHAUHAN, J.

U/S 482/378/407 No. - 32 of 2011

Constable 763, Raj Kumar Gupta

 ...Petitioner
Versus
The State of U.P. and another

 ...Respondent

Counsel for the Petitioner:
Singh Vinod Kumar

Counsel for the Respondent:
Govt. Advocate

Code of Criminal Procedure-Section-482Revision-against dismissal of complaintwithout impleading the accused-held-bad
in law-order passed by Revisional Court
not sustainable direction issued to decide
revision after hearing to accused also.

Held: Para 8

The impugned order passed by the
learned Additional Sessions Judge in the
absence of the petitioner was bad in the
eyes of law and and liable to be quashed
and the matter requires to be remanded
back for afresh decision in accordance
with law after directing the revisionist to
implead the petitioner as party and
affording
him
proper
opportunity
of
hearing.
Case law discussed:
Raghu Raj Singh Rousha Vs Shivam Sundaram
Promoters Private Limited and another in
(2009) 2 Supreme Court Cases 363

(Delivered by Hon'ble Raj Mani Chauhan, J.)

1. Heard Sri Vinod Kumar Singh,
learned counsel for the petitioner and Sri
Rajendra Kumar Dwivedi, learned A.G.A