N.L. GANGULY, J.

The plaintiffs filed civil suit No. 405 of 1983 in the Court of the Munsif West, Allahabad for a decree of eviction and recovery of rent as well as damages in respect of premises No. 204, Mutthiganj, Allahabad. The plaintiffs pleaded themselves to be the landlord and owners of the property involved in the suit and the defendant to be their tenant at the monthly rent of Rs. 200. The defendant had rented the tenement for carrying on trade in bamboos and similar articles. The plaintiffs terminated the tenancy of

the defendant by serving on him a notice under Section 106 of the Transfer of Property Act dated 4-2- 1983 and asked him to vacate the premises within one month after service of the notice. The defendant failed to comply with the notice; hence the suit. It was also pleaded in the plaint that the tenanted premises is not covered under the provisions of the U. P. Act No. 13 of 1972.

2. In written statement the defendant denied the plaint allegations. It was pleaded that the grand-father of the plain tiffs No. 1 and 2, Sri Wajid AH, had filed suit No. 72 of 1982 as owner of the property, who got the construction done on plot No. 132, which now bears the present municipal number 204 and 205. There after Sri Wajid Ali aforesaid created a Waqf AM- auladin respect of property No. 132. The plaintiff No. 3 is the present Mutwalli of the said Waqf. The plaintiffs are not the owners of the property in dis pute ; hence they do not have any right to institute the suit in respect of the aforesaid property. Alternately it was pleaded that if the property in suit is not. deemed as Waqf property, then the defendant, being son of the daughter of Sri Wajid Ali, is a co-sharer of the property and no suit can be filed against a co-sharer of the property.

3. The defendant also pleaded that he was tenant of the whole property No. 204 but with the passage of time the plaintiff No. 1 became an adult and expressed the desire to start business. The defendant in consideration of the fact that the plaintiff No. 1 was a close relative, agreed to hand over half of his tenanted portion to plain tiff No. 1 and the defendant remained tlie tenant ol the other half portion. Both the parties executed an agreement. By virtue of that agreement the defendant secured the right to carry a further construction in addition to the construction already exist ing there. The construction in dispute has been in existence right from the life time of Sri Wajid Ali and was earlier known as baithak. The construction was not done by the defendant. Under the agreement executed between the parties it was agreed that the vacant land adjacent to the con struction is for the benefit of the building, which is under occupation and possession of the defendant, and the defendant con ducts his business from that accommoda tion. It has also been pleaded that on the basis of the agreement it was stipulated that the provisions of the U. P. Act No. 13 of 1972 would not be available for evicting the defendant. The validity of the notice under Section 106 of the Transfer of Property Act was challenged as unlawful and it was stated that the provisions olthe U. P. Act No. 13 of 1972 were applicable so the notice could not be served on the defendant. It was also pleaded that the notice violated the conditions laid down in the agreement between the parties. It was stated that the plaintiffs wanted to raise the monthly rent for the accommodation to Rs. 400 which the defendant refused to accede ; hence the suit. The suit was also said to be beyond jurisdiction of the Munsif Court.

4. The learned Munsif after framing the necessary issues found that the owner ship of the property in question vests in Allatala as the property is Waqf property and the Mutwalli functions only as its manager. The Munsif found in issue No. 4 that the notice issued under Section 106 of the the Transfer of

Property Act is valid. The Munsif also held that the plaintiffs are entitled for a decree of eviction of the defendant from the premises in suit and also for a decree of arrears of rent and damages.

5. A Civil appeal was filed against the judgment of the Munsif before the lower Appellate Court. The IX Addl. District Judge allowed the appeal, set aside the judgment and decree of the Munsif for eviction of the defendant. Second Appeal No. 2898 of 1987 was filed by the plaintiffs against the judgment and decree of the lower Appellate Court.

6. The High Court framed two sub stantial question of law on which the ap peal was to be decided:

(i) Whether the agreement dated 31-10-1978 is being unregistered and against the provisions of sections 11 and 13 of the Act was void and could be looked in evidence

(ii) Whether the small Kothari with a huge open land could bring the entire tenanted por tion under the definition of building with the provisions of the U. P. Act No. 13 of 1972

7. The learned single Judge of this Court by his judgment dated 16-5-1991 observed that:

"the defendant is doing his business on a piece of land and on a small portion of it if he has constructed a shed also, that would not change the nature of the land into a building so as to attract the provisions of the U. P. Act No. 13 of 1972. The first appellate Court has been in fluenced by the terms and conditions of the unregistered deed and, therefore, it has held the disputed property as building within the mean ing of the U. P. Act No. 13 of 1972. After exclud ing the unregistered lease deed as inadmissible, the other evidence which is on record would positively suggest that the property in question is not a building within the meaning of the U. P. Act No. 13 of 1972 but is a land let out for commercial purpose. That being so, a suit under the Transfer of Property Act could be brought against the defendant-respondent by the plain tiffs. "

8. The substantial question No. 2 was also answered in favour of the appellants and it was held that the eviction proceed ings in respect of the property in question would not be governed by the U. P. Act No. 13 of 1972.

9. The learned single Judge allowed the second appeal and the judgment and decree of the first appellate Court dated 19-8-1987 was set aside and the decree of the trial Court dated 23-3-1984 was res tored.

10. The defendant-respondent being aggrieved by the judgment of the learned Single Judge of the High Court filed Spe-cialleave Petition (Civil) No. 11962 of 1991 in which leave was granted after notice to the parties and Civil Appeal No. 4046 of 1991, arising out of the Special Leave Petition hereinbefore was heard and disposed of by the Judgment of the Honble Supreme Court dated 26-9-1991. The Honble Supreme Court while dispos ing of the appeal and remanding the case to the High Court observed as under:

"the High Court did nol consider the lease-deed for the reason that it was not a registered document. Counsel for the appellant submits that Section 107 of the Transfer of Property Act had been amended by the U. P. Act No. 57 of 1976 and the effect of the amendment had not been noticed by the High Court. Coun sel for the respondents, on the other hand, sub mits that the document in question is not a lease deed pure and simple, but it is a document evidending a composite transaction involving relinquishment and, therefore, the amendment of Section 107 will not be applicable. Counsel for the respondents further submits that in any way the appellant is not entitled to the protec tion of the Act as he had not been an authorised lessee in so far as the allotment order required under the Act had not been obtained. These are the questions on which we express no view. Whether specific averments on these points are contained in the pleadings and whether the evidence on record would justify these aver ments are matters on which we express no view. However, we are of the view that the whole question has to "be considered by the High Court. The area that will receive the attention of the Act has to be determined. " *

11. Since the learned Single Judge, who decided the appeal, has retired the Honble Chief Justice nominated this second appeal to this Bench for deciding the same in accordance with the observa tions of the Honble Supreme Court.

12. Heard Sri Sankatha Rai, learned Counsel for the plaintiff- appellants and Sri K. M. Dayal for the defendant-respon dent.

13. I have quoted the substantial question of law framed by the learned Judge at the time of admission of the second appeal.

14. Sri Sankatha Rai, learned Coun sel for the plaintiff- appellants submitted that after the judgment of the Honble Supreme Court setting aside the judgment of the High Court in the Second appeal remanding the case 10 this Court for fresh consideration with reference to the evidence and pleading already on record the legal position of the controversy in volved in the second appeal stands sub stantially changed. He submitted that now the question of applicability of the provisions of the U. P. Urban Buildings (Regulation of Letting, Rent and Evic tion) Act, 1972, hereinafter referred to as the Act becomes not relevant in view of the amendment in the Act by the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1995 (U P. Act No. 75 of 1995). He sub mitted that according to the findings of the Court below the property in suit is a Waqf property i. e. Waqf Alal-Aulad. According to the amendment of Section 2 of the. U. P. Act No. 13 of 1972 in sub-section (1) the following amendment, namely, (bbb) has been substituted. The entire provisions are quoted as under:

"2. Amendment of Section 2 of the U. P. Act No. 13 of 1972. In Section 2 of the Uttar Pradesh Urban Buildings (Regulation of Let ting, Rent and Eviction) Act, 1972, hereinafter referred to as the Principal Act:

(a) in sub-section (1)-^-

(i) in Clause (a), after the words a public sector Corporation, the words or a Canton ment Board shall be inserted;

(ii) In Clause (b), the words the whole of the income from which is utilised for the pur pose of such institution shall be omitted;

(iii) after Clause (b), the following clauses shall be inserted, namely:

(bb) any building belonging to or vested a public charitable or public religious institution:

(bbb) any building belonging to or vested in a Waqf including a Waqf-alal-aulad;

(iv) after Clause (f), the following clauses shall be inserted, namely;

(g) any building, whose monthly rent ex ceeds two thousand rupees;

(h) any building or-which a mission of a Foreign country or any international agency is the tenant;

(b) sub-section (3) shall be omitted. "

15, Thus, he submit that the property in question being a waqf property is not covered within the clutches of the U. P. Act No. 13 of 1972. Sri Sankatha Rai sub-milted that when the suit was filed the provisions of the U. P. Act No. 13 of 1972 were not applicable to the property in question. The agreement dated 31- 10-1978 was a composite document the lease cum surrender-which was also not a registered document. In the said docu ment it is clearly mentioned that out of the larger area held by the defendant some part was released infavour of the plaintiffs. As the parties had entered into an agree ment, there was no necessity of allotment. Sri Sankatha Rai submitted that the defen dant was not right in pleading that the U. P. Act No. 13 of 1972 was applicable. The argument of Sri Sankatha Rai that it was a case of lease to which the U. P. Act No. 13 of 1972 was not attracted. Only a regular suit for eviction of the defendant is main tainable. He also submitted that oral sur render in respect of the lease is permissible in law without registration relying on the decision A. I. R. 1977 Allahabad 322, Sheomurat Ram v. Smt. Savitri&ors. , He further submitted that the decision 1993 (2) A. R. C. 204 (F. B.) Nootan Kumar & Ors. v. IIAddl. District Judge, Banda and others now could not be very relevant for the decision of the present second appeal.

16. Sri Sankatha Rai submitted that relying on the decision Parripati Chandra Shekhar Rao and Sons v. Alapati Jalaiah, 1995 S. C. and F. B. Rent Cases 311 sub mitted that the Supreme Court has been pleased to hold that the protection to tenants under the Rent Control Act when recalled even during the pendency of ap peal or second appeal, the tenant would not be competent to argue that by amend ing Act the protection of the Rent Act could not be withdrawn. The observations of the Honble Supreme Court in Parripatis case (supra) are quoted as under:

"the argument that the tenants have ac quired a vested right under the Act prior to its amendment is without any substance. Prior to

the amendment of Section 1 (3), by the Amend ing Act of 1978, the provision as it originally stood cannot be said to have conferred any vested right on the tenants. The provisions, as it originally stood prior to its amendment, might not have been constitutionally valid as the ex emption, sought to be granted was for an in definite period. That does not necessarily imply that any vested right in any tenant was thereby created. The right claimed is the right to be governed by the Act prior to its amendment. If the legislature had thought it fit to repeal the entire Act, could be tenant have claimed any such right Obviously, they could not have the question of acquiring any vested rights really does not arise. ". . . . . . . . . . . . . . .

According to us there is a material difference between the rights which accrue to a landlord under the common law and the protection which is afforded to the tenant by such legislation as the Act. In the former case the rights and remedies of the landlord and tenant are governed by the law of contract and the law governing the property relations. These rights and remedies continue to govern their relationship unless they are regulated by such protective legislation as the present Act in which case the said right and remedies remain suspended till the protective legislation continues in opera tion. Hence while it can legitimately be said that the landlords normal rights vested in him by the general law continue to exist till and so long as they are not abridged by a special protective legislation in the case of the tenant, the protective shield extended to him survives only so long as and to the extent the special legisla tion operates. In the case of the tenant therefore the protection does not create any vested right which can operate beyond the period of protection or during the period of the protection is not in existence. When the protection does not exist, the normal relations of the landlord and tenant come into operation. Hence the theory of the vested right which may validly be pleaded to support the landlords case is not available to the tenant. It is for this reason that the analogy sought to be drawn by Shri Subbarao between the landlords and the tenants rights relying upon the decision of this Court in 1988 Suppl. (2) S. C. R. 528 : AIR 1988 S. C. 2031, is misplaced. In that case the landlords normal right to evict the tenant from the premises was not interfered with for the first ten years of the construction of the premises by an exemption specifically in corporated in the protective Rent legisla tion in question. The normal right was obviously the vested right under the general law and once accrued in continued to operate. The protection given to the tenant by the Rent legislation came into operation after the expiry of the period of 10 years, notwithstanding the coming into operation of the protection and in the absence of the provisions to the contrary, the proceedings already commenced on the basis of the vested right could not be defeated by mere passage of time con sumed by the said proceedings. It is for this reason that the Court there held that the right which had accrued to the landlord being a vested right could not be denied to him by the efflux of time.

That is not the situation in the present case where the tenant who un doubtedly had the right and remedies under the Act to claim reliefs against the landlord, lost the same the moment the protection was taken away, the rights and remedies being not vested ones. "

17. Sri K. M. Dayal submitted that the decision of the Honble Supreme Court in Parripatis case (supra) is not applicable to the facts and circumstances of the present case. He submitted that the decision of the Supreme Court was in relation to the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. He pointed out that Section 26 of the said Act provided for exemption from the ap plicability of the A. P. Rent, Act, which is quoted as under:

"26. Exemptions.-Notwithstanding any thing in this Act, the Government, may, by notification in the Andhra Pradesh Gazette, ex empt subject to such conditions and terms, if any, as they may specify in the notification, any building or class of buildings from all or any of the provisions of this Act. "

He pointed out that the exemption of premises under the AP. Act was not by statute but by a power conferred on the Government to exempt on notification published in the Gazette subject to such conditions and terms, if any, as they may specify in the notification. Any building or class of buildings from all or any of the provisions of the Act. Sri K. M Dayal, Counsel for the respondents, submitted that there was no exemption provided in the A. P. Rent control Act whereas it is contained, in U. P. Act. He submitted that perusal of the provisions of the U. P. Act No. 13 of 1972 Section 2 (2) shows that the exemptions are created by statute. He also submitted that Section 6 of the General Clauses Act apply to acts repeals of the statute.

18. In Punjab National Bank Ghaziabadv. Dr. Rajendra Nath Azad, 1996 (Vol. I) A. R. C. 348, the controversy about the applicability of the amended provisions of the U. P. Act No. V of 1995 by which the provisions of Section 2 (l) (g) of the U. P. Act No. 13 of 1972 was amended came for consideration before this Court. This Court relying on the decision of the Honble Supreme Court Parripati Chandra Shekhar Rao and Sons (supra) held that if during the pendency of the suit certain amendment was made in the Act by notification, the amendment will operate and it cannot be said that such amendment will operate prospectively in the sense that previously instituted suits will be governed by the old provisions. On the date the suit was decided the amending provisions were already enforced and consequently it could be taken note of by Court concerned. This Court while deciding the revision under Section 25 of the Provincial Small Cause Courts Act applied the amended provisions of the Act of 1995 and treated that the provisions of the U. P. Actno. 13 of 1972 would no t be attracted.

19. Sri K. M. Dayal cited the case reported in 1984 ARC 265 (SC) Vineet Kumar v. Mangal Sain Wadhera. Sri K. M. Dayal relied on this decision in support of his argument that for argument sake also if it is accepted that it was an open piece of land let out to the defendant without any substantial construction thereon and the Rent Control Act was not applicable even then by virtue of paragraphs 19 and 22 of the

agreement between the parties the defendant-tenant would be protected as if the Act was applicable. He submitted that there was a specific condition n paragraphs 19 and 22 of the agreement between the parties by which the parties had agreed that the Rent Control Act would be applicable. He submitted that the language of paragraphs 19 and 22 of the agreement in substance may be taken into account and it was the intention of the parties that the plaintiff would not evict the defendant as if the Rent Control Act was applicable to the premises. He submitted that such an understanding and the agreement was ar rived at between the parties as the parties were closely related to each other. The argument may look attractive but it is not based on pleadings and record. There is no alternative pleading in the written state ment of the defendant which I have ex amined by looking to paragraphs 21 and 22 of the written statement. Thus, I do not consider it necessary to permit the defen dant- respondent to raise a plea which was not pleaded in the trial Court nor any such substantial question of law was framed when the second appeal was admitted. It is also worth mentioning that no application for amendment of the written statement of introducing the alternative plea was moved by the defendant-respondent.

20. Sri K. M. Dayal cited 1987 A. R. C. (Vol. 2) 361,nand Kishore Marwah v. Smt. Sundari Devi, 1988 A. R. C. (Vol. 2) 465, Shiv Kumar v. Jawahar Lai Verma & Ors. and 1988 A. R. C. (Vol. 2) 557, Alma Ram Mhtal v. Ishwar Singh Puma in support of his argument that exemption from evic tion will continue to be available until such suit is decided or adjudicated. Such is the purport of the Act. The submission of Sri K. M. Dayal that the defendant would be protected from eviction on account of a condition in the agreement is not accept able. It has been found by the Court below that the agreement in question was not a registered document and is not admissible in evidence and the terms and conditions of the said agreement would not be enfor ceable. Further it is also in dispute from the record that there was no such alterna tive pleading in the written statement of the defendant. I do not consider it neces sary and appropriate to provide another inning to the parties to raise a question, which was not even permitted or con sidered necessary substantial question of law when the present second appeal was admitted by the High Court. The decision of Honble Supreme Court reported in AIR 1995 SC llslpanipati Chandra Shek-herrao (supra) is clear and unambiguous. The legal position is crystal clear. No vested right had accrued to the tenant in occupation. The landlord has a normal right to evict the tenant under the general law and the protection once given to the tenant by the Rent Legislation, the protec tion provided to the tenant, when taken away, the suit deserves to be decreed.

21. Sri K. M. Dayal feebly raised a submission that there was no cause of ac tion for the suit and the sui t was liable to be dismissed on this ground. He realised the weakness of his ground and abandoned this argument. Sri K. M. Dayal also sub mitted that the notice under Section 106. TP. Act served on the defendant was not valid. The High Court while admitting the second appeal had framed only two sub stantial questions of law, referred to at page 3 of the judgment. I am not inclined to entertain all sort of arguments, which was not considered by the Bench admitting the second appeal as substantial questions of law. The Honble Supreme Court had made it clear that the argument part, referred to in

the judgment was merely reference of the submissions and the Honble Supreme Court did not express any view.

22. After hearing the learned Coun sel for the parties at length and perusal of the record, there is no doubt that the defendant- respondent is a tenant of the premises involved in the suit to which the provisions of the U. P. Act No. 13 of 1972 are not attracted, the property being a waqf property, the notice terminating the tenancy under Section 106 TP. Act is valid and the terms and conditions mentioned in the unregistered agreement arrived at between the parties were not enforceable in law. The plaintiffs suit deserves to be decreed. The judgment and decree dated 19-8-1987 passed by the IX Addl. District Judge. Allahabad is set aside and the judg ment and decree dated 23-3-1984 passed by the X Addl. Munsif, Allahabad decree ing the plaintiffs suit for eviction of the defendant-respondent and for recovery of pendente lite and future damages for use and occupation is restored.

23. For the reasons stated above the second appeal is allowed. The parties shall bear their own costs.

24. At the time I was delivering the judgment, Sri Nagendra Kumar Srivas-tava, Counsel for the respondent made a request to grant some time to enable the respondent to vacate the premises in ques tion. He prayed that atleast one years time may be given to vacate the premises. Sri Sankatha Rai, learned Counsel for the ap pellants has serious objection. He sub mitted that the suit is pending for more than a decade and one years time is too much to be allowed for vacating.

25. The respondent is doing his busi ness in the premises in question. Iconsider that it would be just and proper in the facts and circumstances of the case to grant six months time to enable him to search out another accommodation for the tenant. Six months time is allowed from today for vacating the premises in question provided the defendant-respondent files an affidavit giving undertaking before the trial Court that he shall vacate the premises after occupying it for six months from today and deliver vacant possession to the appellants. He shall not damage or induct any other person in the premises in question. The respondent also sates and undertakes to deposit the rent for the premises for the period which he would be occupying under the orders of this Court today within the period specified as one week from today in advance. Any arrear if due payable to the appellants shall also be paid within one month from today. Any amount already paid shall be duly ad justed.

26. In case of default of submission of the undertaking by the respondent within one week from today in the Court below, the appellants shall be free to execute the decree, in accordance with law. Appeal allowed.