Full Judgment
K.S. Rakhra, J.
1. This revision Under Section 25 of Provincial Small Causes Court Act has been filed against the judgment and decree dated 9.3.2004 passed by the First Additional District Judge, Varanasi in S.C.C. No. 21 of 1999, Mukund Das v. Vijai Kumar, whereby, the suit of the plaintiff for ejectment of the revisionist and for recovery of arrears of rent etc. has been decreed.
2. Heard Dr, R. G. Padia learned counsel for the revisionist and Sri Ajai Kumar Singh, learned counsel for the opposite party. Perused the record.
3. The opposite party landlord brought a suit with the allegation that about 25 years ago, he had let out an open piece of land to the revisionist for keeping empty drums, trolleys, etc. on this land on payment of rent as mentioned in the plaint. Later on, he also permitted the defendant tenant to raise a temporary tin-shed kothari without doors on the lease land. This construction was raised with the understanding that it will be removed at the costs of the tenant as and when required by the landlord. The landlord after giving notice Under Section 106, C.P.C. brought suit for recovery of arrears of rent and ejectment.
4. The tenant contested the suit, inter alia on the ground that the suit was not maintainable in the Court of Small Causes as the property leased out, was an open land and, therefore, the suit was barred by Article 4 of the Second Schedule of the Provincial Small Causes Courts Act.
5. The said suit has been decreed by the Small Causes Court Act on the assumption that it has jurisdiction to decide the same.
6. The contention of the learned counsel for the revisionist is that as per the plaint version what was let out to the revisionist, was an open land on which the landlord permitted the tenant to raise a purely temporary construction, i.e., a kothari covered by tin-shed and without any doors therein.
7. Learned counsel for the respondent did not dispute that if it is deemed to be the tenancy of open land, the suit would not be maintainable before the Small Causes Court under the Provincial Small Causes Court Act but the contention of the learned counsel for the opposite party is that the structure raised on the spot by the tenant defendant was of permanent in nature and the tenant had himself stated so in para 2 of the written statement that there exists a pucca kothari and a tin-shed on the leased land. Similarly, in paras 4 and 5 of the written statement, the tenant had stated that he had not raised In construction with the permission of the landlord but what was leased out to him, was the land along with pucca kothari and tin-shed.
8. The question for determination would, therefore, be whether in view of such pleadings of parties, the jurisdiction is to be determined on the basis of the allegation in the plaint or the pleadings in the written statement can also be considered. It is well- settled that for the purpose of determination of jurisdiction, the pleadings in the plaint are only to be considered. The plaintiff had come with the definite averment that what was leased out to the revisionist defendant, was an open piece of land and the defendant had raised temporary structure, thereon with the permission of the landlord. Clearly, in such a situation the tenancy be that of a land and suit would not be maintainable in the Small Causes Court.
9. In this regard, I may place reliance on the law laid down in the case of Ichcha Ram v. Parsadi and Anr., 1990 (2) AWC 1276 : 1990 (2) ARC 295, that was a case where suit for eviction of the tenant from vacant land on which the tenant had with the permission of the landlord, raised chhappar, was filed in the Small Causes Court. Referring to Section 15(1) of Provincial Small Causes Court Act, 1887, II Schedule and Article 4 therein, it was held that the Small Causes Court has no jurisdiction to entertain the suit. Similarly, In the case of Harish Chandra v. Mohd. Ismail, 1990 (2) ARC 357, the landlord had let out a piece of land over which a tinshed was later on constructed. It was held that if the tenant had put up the said construction, there was no question of any lease being granted In respect of the same and the lease would really be of open land which would admittedly not be the building within the meaning of provisions of U. P. Act No. 13 of 1972.
10. In the case before us, the provisions of Section 29A of the U. P. Act No. 13 of 1972 also do not come to the rescue of the plaintiff because these provisions provide that they will apply to the land let out before or after the commencement of the section where the tenant with the landlord's consent, has erected any permanent structure and incurred expenses in execution thereof. In the instant case, according to the plaintiffs own version, the structure raised by the tenant was not permanent structure but It was a temporary kothari covered by tin-shed and without doors. No case law could be cited by the learned counsel for the opposite party against the above proposition.
11. In view of these circumstances, the court below certainly erred in exercising jurisdiction which was not vested in it and thereby, committed gross illegality.
12. The revision is allowed. The judgment and order dated 9.3.2004 of the First Additional Judge in S.C.C. Case No. 21/99 is set aside.
13. No orders as to costs.