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Vasant Ramchandra Sharma Vs. Narayanibai Mulchand Agrawal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 1821 of 1968 (with C. A. 939 of 1972 with Spl. C. As. Nos. 1839 and 19
Judge
Reported inAIR1973Bom214; (1973)75BOMLR24; ILR1973Bom993; 1973MhLJ157
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 11(3), 11(2), 12, 12(1) and 12 (3)
AppellantVasant Ramchandra Sharma
RespondentNarayanibai Mulchand Agrawal and ors.
Advocates:U.R. Lalit, ;R.B. Kotwal, ;Raghvendra A. Jahagirdar and ;G.L. Damle, Advs. and ;L.V. Talavalikar, Adv. for ;Y.S. Chitale, Adv.
Excerpt:
a) the case dealt with a suit filed for eviction of the tenant under the bombay rents, hotel and lodging house rates control act, 1947, and whether the tenant could raise a dispute related to the standard rent mentioned by the landlord - it was held that the court could not grant decree for eviction of the tenant only on the ground that he had failed to pay arrears of the rent for more than six months - further, the tenant could raise a dispute related to the standard rent in the written statement and could continue to pay the arrears of the rent and the rent determined by the court ; b) the case debated on whether the tenant could raise fresh dispute related to the standard rent after agreeing to a consent decree related to the same - it was held that the agreement to have a consent.....order1. these three petitioners arise out of a suit filed against the petitioners and others under the bombay rents, hotel and lodging house rates control act, 1947, and can be disposed of by a common judgment.2. the relevant facts may be briefly stated as follows : there is in polan peth in jalgaon a plot of land having city survey nos. 1862. out of the said plot, an area measuring 117 1/2 feet east-west and 150 feet north-south is the subject-matter of the dispute between the parties to these petitions. the said area, which will be hereinafter referred to as 'the suit plot', is owned by the plaintiffs in the aforesaid suit. the plaintiffs are respondents nos. 1, 2 and 3 in each of these petitions. defendant no.1, in each of these petitions. defendant no.1, who is the petitioner in.....
Judgment:
ORDER

1. These three petitioners arise out of a suit filed against the petitioners and others under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, and can be disposed of by a common judgment.

2. The relevant facts may be briefly stated as follows : There is in Polan Peth in Jalgaon a plot of land having City Survey nos. 1862. Out of the said plot, an area measuring 117 1/2 feet east-west and 150 feet north-south is the subject-matter of the dispute between the parties to these petitions. The said area, which will be hereinafter referred to as 'the suit plot', is owned by the plaintiffs in the aforesaid suit. The plaintiffs are respondents Nos. 1, 2 and 3 in each of these petitions. Defendant No.1, in each of these petitions. Defendant No.1, who is the petitioner in Special Civil Application No. 1821 of 1968 and respondent No. 4 in Special Civil Applications Nos. 1839 of 1968 and 1840 of 1968 and respondent No. 4 in Special Civil Applications Nos. 1839 of 1968 and 1840 of 1968, was the tenant of the suit plot. Defendants Nos. 2 to 17 in the original suit were impleaded in the suit as persons to whom the various structures built by defendant No.1 were let by him and who claim to be lawful sub-tenant of defendant No.1 even in respect of the suit plot. Although a decree for eviction is passed against all the defendants, defendant No.1 alone has filed the above Special Civil Application No. 1821 of 1968 challenging the said decision; defendant No.2 has filed Special Civil Application No. 1839 of 1968; and defendant No. 4 and heirs of defendant No. 7 have filed Special Civil Application no. 1840 of 1968.

3. The suit was filed by the plaintiffs for evicting all the said defendants Nos. 1 to 17 on the ground that defendant No.1 was their statutory tenant; that the standard rent of the premises was fixed at Rs. 95/- per month under a compromise decree in regular Civil Suit No. 416 of 1962 filed earlier by them; that defendant No. 1 failed and neglected to pay to the plaintiffs rent from September 1, 1962 to October 31, 1965: that the plaintiffs gave notice to defendant No.1 dated October 5, 1965 and terminated his tenancy under Section 12(2); that a copy of the said notice was also sent to defendants Nos. 2 to 17 for information; that though the notice was duly served on the tenant-defendant No.1, possession of the suit plot was not delivered to the plaintiffs and arrears of rent were not paid to them and hence they filed the suit to recover possession. In the suit possession was claimed under Section 12(3)(a) and also on the ground that defendant No.1 had let out portions of the suit plot to defendants Nos. 2, 9, 13 and 17 illegally and without their consent after January 1, 1962.

4. All the defendants resisted the suit. Defendant No.1 contested the suit by filing a written statement at Exh. 52. He admitted the tenancy of the suit plot. He contended that he was in possession under the registered lease-deed from January 1, 1952, and that he was not a statutory tenant as contended by the plaintiffs. He stated that his (defendant No. 1's) father had originally taken the lease of the plot in 1921 from the original landlord Balmukund Choturam, the predecessor of the plaintiffs; that the tenancy agreement or rent-note was executed by defendant No.1 in favour of Mulchand Gulabchand, the last predecessor of the plaintiffs on November 29, 1950, and under that rent-note a tenancy was created for eleven years in respect of the suit plot and defendant No.1 was given the right to build structure and to take sub-tenants in the said structures. It was also agreed that if after the expiry of the period defendant No.1 was required to vacate he should be paid the full value of the building. He contended that the rent of the premises was increased from time to time and on the expiry of the period of agreement the legal heirs of Mulchand Gulabchand filed Regular Suit No. 416 of 1962 against defendant No.1 to recover the arrears of rent. That suit ended in a compromise. The terms of the compromise provided that defendant No.1 should continue as tenant of the plaintiffs on payment of monthly rent of Rs. 95/-. But defendant No.1 still contended that the arrears claimed by the plaintiffs at the said rate were excessive because the rent of the plot was Rs. 37.50 on September 1. 1940, and that should be determined as the standard rent of the premises. he offered to pay the standard rent due from time to time; and there is no dispute that he has paid the standard rent which is fixed by the lower Court at Rs. 95/- per month from time to time and all the arrears and costs in the trial Court.

5. Defendants Nos. 2 to 17 also filed their written statements contending that they were the lawful sub-tenants of defendant No.1 inducted in the premises before the amendment of Section 15 by Ordinance of 1959 and that by virtue of determination of tenancy of defendant No.1 they became direct tenants of the plaintiffs protected by the Bombay Rent Act under Section 14 and hence no decree for possession could be passed against them. They further contended that they were ready and willing to pay rent in future to the plaintiffs. Defendant No. 17 has further stated that he has put up doors and tins at his expense.

6. The learned trial Judge framed as many as nine issues, in view of the contentions of the parties. He held, after considering the oral and documentary evidence led before him, that defendant No.1 was the statutory monthly tenant of the plaintiffs and had committed defaults in the payment of rent for more than six months, that his tenancy was validly terminated by notice and that notice was also sufficient to terminate the tenancy of defendants Nos. 2 to 17; that, however, by virtue of the rent-note between the plaintiffs and defendant No.1 dated November 29, 1950, defendant No.1 had a right to take sub-tenants and hence the defendants, who were inducted prior to the amendment by the Ordinance of 1959 had acquired the rights of tenancy under the amended provisions of the Rent Act; that, therefore, defendants Nos. 2 to 8, 10 to 12 and 14 to 16 cannot be dispossessed from the premises in the absence of independent notice terminating their respective tenancies; that the plaintiffs were bound to pay costs, according to the opinion of panchas, of structures made by defendants No.1 before getting the actual possession of the suit plot and hence he passed a decree for actual possession and for recovery of Rs. 3420/- and further damages against defendant No. 1 and for symbolical possession against defendants Nos. 2 to 17 without costs. With regard to the structures on the suit plot, the learned Judge directed - 'The defendant No.1 to remove his structure within four months or to assess the value of structure through Commissioner or by Regular Suit within these four months remaining in possession. After expiry of four months in case of default the plaintiffs are entitled to take possession through Court with arrears up-to-date.' He directed that the amount of Rs. 6145/- deposited by defendant No.1 should be paid to the plaintiffs.

7. Feeling aggrieved by the said judgment of the learned Civil Judge, Junior Division, Jalgaon, dated January 31, 1967, defendant No.1 filed an appeal in the District Court at Jalgaon, which was heard by the Extra Assistant Judge of Jalgaon, along with the appeals filed by defendants Nos. 2, 4, 8, 9 & 17 and an appeal filed by the plaintiffs who wanted a decree for actual possession against all the defendants. By his judgment and decree dated March 22, 1968, the learned Extra Assistant Judge set aside the decree passed by the trial Court and substituted the decree directing defendant No.1 to remove his structures from the suit plot and all the defendants to hand over possession of the suit plot to the plaintiffs within six months from the date of his judgment, giving liberty to the plaintiffs to apply for mesne profits due after the institution of the suit under Order 20, Rule 12 (1) (c) of the Civil Procedure Code and also directing that defendant No.1 should pay to the plaintiffs Rs. 3420/- for the past arrears of rent etc. The learned Extra Assistant Judge confirmed the finding of the learned trial Judge with regard to the defaults committed by defendant No.1 holding that defendant No.1 was the statutory tenant only after January 1, 1962. he also held that defendant No.1 had unlawfully taken defendants Nos. 2, 9, 13 and 17 as sub-tenants after January 1962 and hence the plaintiffs were entitled to possession of the suit plot from defendant No.1 on the ground of unlawfully sub-letting, assigning or transferring his interest under Section 13(1)(e) of the Bombay Rent Act, and also under Section 12(3)(a) for non-payment f rent, without paying any compensation for the structure to defendant No.1. he also further held that defendants Nos. 1 to 17 were liable to be evicted from the respective parts of the said building situate on the suit plot without any further notice to them. The said decisions are challenged in the above petitions filed by the petitioner-defendant No. 1 in Special Civil Application No. 1839 of 1968, by the petitioner-defendant No.2 in Special Civil Application No. 1839 of 1968 and by the petitioner-defendant No. 4 and heirs of defendant No. 7 in Special Civil Application No. 1840 of 1968.

8. Mr. Lalit, the counsel for the petitioner-defendant No.1, raised four contentions in support of the petition filed by defendant No.1 : -

(1) The two Courts below erred in law in applying the provisions of Section 12(3)(a) notwithstanding the fact that an issue with regard to standard rent was framed, evidence was led by the parties and decision was given on the point in dispute and all rent due from time to time was deposited with the costs by defendant No.1.

(2) The lower Courts erred in holding that defendant No.1 became merely a statutory tenant from January 1, 1962 after the expiry of the lease and that it should have been held that defendant No.1 continued as a contractual tenant, who, under the original lease having been entitled to sublet, continued to have the said right of subletting even after January 1, 1962.

(3) Even assuming that defendant No.1 was a statutory tenant, as defendant No.1 did not transfer to any of the other defendants or to defendants Nos. 2, 9, 13 and 17 his interest in the suit plot, the lower Courts erred in law in holding that defendant No.1 was liable to be evicted under Section 13(1)(e).

4. In any event, the lower appellate Court erred in law in setting aside the decree passed by the trial Court with regard to compensation for the structure constructed by defendant No.1 which was payable by the plaintiffs under clause 6 of the original lease deed.

9. Turning now to the first contention, there can be no doubt that the decrees passed by the lower Courts would be liable to be set aside if the decrees were based only on the ground that defendant No.1 failed to pay arrears of rent for more than six months even after notice under Section 12(1) and Section 12(3)(a) applied to the case. It is now undisputed that all arrears have been paid by defendant No.1 with costs of the lower Courts. It is also now settled that where there is a dispute with regard to standard rent, even though the tenant did not pay the arrears of rent within one month from the receipt of the notice under Section 12(1) and did not make an application under explanation I to Section 12, it is open to the tenant to raise the contention about the standard rent in the written statement and go on paying the arrears of rent and the rent determined by the Court from time to time. See Dattu Subhana Panhalkar v. Gajanan Vithoba Bombhate, : AIR1971Bom396 (FB). The view taken by the lower Court on the point is contrary to the said decision of the Full Bench. The learned trial Judge has framed issues Nos. 7 and 8 as to whether defendant No.1 proved that his objection of standard rent. He decided these issues against defendant No.1 and went on to observe :-

'As these issues are decided against defendant No.1 the plea of standard rent raised by the defendant No.1 is not bona fide and the standard rent has been already fixed in Reg. Suit No. 416/52. The non-payment of the rent by defendant No. 1 is a willful defaulter and he has committed default by not paying the standard rent for 37 months.'

Having come to this conclusion, the learned Judge went on to observe : -

'It is also common ground between the parties that the period of tenancy agreement Ex. 153 of 11 years expired and defendant was allowed to continue in possession as tenant by fixing the standard rent at Rs. 95/- per month. In spite of it the defendant did not pay the standard rent and as before in the 3 suits filed for only arrears against defendant No.1, he has kept arrears. The defendant as such has no right to remain in possession more and as decided in : [1963]3SCR312 . Once the defendant has become defaulter the Court has no other discretion or jurisdiction but to give the decree of eviction.'

Although he does not in terms refer to Section 12(3)(a), his finding clearly shows that he though that the provisions of Section 12(3)(a) were attracted in the case. The said finding was confirmed by the learned Extra Assistant Judge with the following observations : -

'As already pointed above, all the conditions laid down under Section 12(3)(a) of the Bombay Rent Act, stand satisfied except that whether there was a dispute on the standard rent of the suit plot or not, between the parties, it is quite patent from the compromise decree, copy Exh. 151, that the plaintiffs and the defendants had taken into consideration all the facts and circumstances and thereafter fixed the standard rent of the suit plot at Rs. 95/- per month. Such fixation of the standard rent embodied in the consent decree, would constitute bar of res judicata and it stops (estops?) defendant No.1 from contending that the standard rent of the suit plot is not Rs. 95/- per month. this principle of law is well laid down in Popatlal Ratansey v. Kalidas Bhavan, : AIR1958Bom1 cited by the learned counsel for the plaintiffs.'

10. The views taken by the two Courts below are manifestly illegal as they are contrary to the scheme of the provisions contained in the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 with regard to the rights of tenants to raise a dispute about the standard rent. The learned Extra Assistant Judge ignored that after Popatlal's decision, : AIR1958Bom1 the legislature amended the Act by inserting Section 11-A which lays down the limits of the application of the principles of res judicata. Section 11(1)(e) and Section 11(2) confer on the tenants an unfettered right to raise disputes about the standard rent. It may be that in some cases, the tenants would raise unreasonable and mala fide disputes, but there is nothing indicated by the legislature in Sections 11(1)(e) and 11(2) to show that the disputes must be always bona fide. Under Section 11-A it is only when the standard rent is determined by the Court 'on the merits of the case' that the tenant is precluded by raising a fresh dispute about the standard rent. The learned Assistant Judge has not even referred to the provisions of this section which were enacted by Maharashtra Act 14 of 1962.

11. There is also nothing in the consent decree Ex. 151 to indicate that the parties had taken into consideration all the circumstances of the case. Even assuming that the parties had taken into consideration all the circumstances of the case, it can never be said that the Court had decided the case on merits merely because the parties had taken into consideration all the circumstances of the case when applying for a consent decree. The duty of the Court cannot be delegated to the parties. In the present case, there was a dispute raised in the written statement filed by defendant No.1 about the standard rent. It does appear that defendant No.1 was in possession of the suit plot from 1921. The rent of the suit plot was raised from time to time. The mere fact that for some reason he agreed to have a consent decree about the standard rent does not preclude him from raising a fresh dispute under Section 11(1)(e) and under Section 11(2). If the dispute existed, it can never be said to be a mala fide dispute having regard to the facts and circumstances of the case. If at all it was necessary to find out whether the dispute was mala fide, there can be no doubt that the dispute in the present case was bona fide as the plaintiffs and the predecessors were not recovering uniform rent from 1921. In these circumstances, the two Courts below erred in law in applying the provisions of Section 12(3)(a) to the case. There is no dispute that if Section 12(3)(b) applied, no decree for eviction could be passed against defendant No.1 on the ground of non-payment of arrears of rent. Defendant No.1 would have, therefore, succeeded if the decree for eviction was passed against him only on the ground of non-payment of rent.

12. Turning now to the second contention, it is necessary to refer in the first instance to the lease deed at Ex. 153. It was a registered lease deed dated November 29, 1950. The first clause of the lease deed provided that the lease shall commence from January 1, 1951 and end at the end of 11 years on December 31, 1961 subject to the conditions mentioned in the lease. The second clause of the lease deed provides for annual advance payment of Rs. 1400/- as the rent of the plot. It also stated that if the amount was not paid within three months from the 1st of January, the lease was liable to be forfeited and the lessor was entitled to recover possession after paying the compensation for the structure which defendant No.1 constructed on the plot; Clause 3 provided that the annual taxes in respect of the plot to the Government were to be paid by the lessor. Clause 4 provided that the municipal taxes in respect of the structure to be built by defendant No.1 lessee should be paid by him and the lessor would not be liable to pay the same. Clause 5 said that the lessee had the permission of the lessor for making alterations, repairs and additions to the structure built by defendant No.1 on the plot and any additional municipal tax which may be levied in respect thereof should be paid by the lessee himself. Clauses 6 and 7 are the most important clauses in the lease deed on which Mr. Lalit heavily relied in the course of his arguments; and they are as follows : -

Relying on these two clauses, Mr. Lalit submitted that clause 6 provided that even after the expiry of 11 years, there was a covenant for renewal of the lease on the same condition that whatever happened, defendant No.1 was entitled to recover from the lessor the reasonable compensation in respect of the structures built by him that clause 7 provided the mode of the determining the compensation. Clause 8 stated that the lessor was not liable to pay any compensation to defendant No.1 if he was compelled to construct other structures elsewhere in a new plot. clause 9 is important and it runs as follows :-

Mr. Lalit submitted that as long as defendant No. 1 was in possession, he had a right under clause 9 to sublet the structure and the plot and hence, the findings of the two Courts below that by subletting the premises to defendants Nos. 2, 9, 13 and 17 the tenancy of defendant No.1 was liable to be terminated was contrary to law inasmuch as Section 15 did not prohibit subletting if it was permitted under the contractual lease.

13. Mr. Lalit further relied on the compromise decree Exh. 151 in regular civil suit No. 1416 of 1962 filed by the plaintiffs to recover arrears of rent against defendant No.1. By that decree it was provided Relying on the underlined portion of the decree, Mr. Lalit strenuously urged that when the suit was filed by the plaintiffs recovery of arrears of rent, they had not terminated the tenancy of defendant No.1 which he was holding over within the meaning of Section 116 of the Transfer of Property Act and though the period of the lease had expired, the consent decree expressly stated that the rights of the defendant no. 1 under the lease should remain unaffected. Mr. Lalit argued that the effect of this clause was to continue the contractual tenancy of defendant No.1 subject to the modifications in rent made in the consent decree but subject, nevertheless, to all other terms and conditions of the lease, particularly the covenants for renewal, as interpreted by Mr. Lalit, contained in clause 6, the covenant for payment of compensation under that clause read with clause 7 and the covenant permitting defendant No.1 to sublet the premises without any objection being raised by the plaintiff's under clause 9.

14. Similar arguments were addressed to the lower Courts and the two Courts below rejected these contentions on the ground that the period of the lease having expired, defendant No.1 became only a statutory tenant with effect from January 1, 1962. Mr. Lalit's reference to Section 116 of the Transfer of Property Act in this connection is entirely misconceived, as that section will apply only where the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, and there is no agreement tot he contrary. The Section 111(a) of the Transfer of Property Act under which a contractual lease determines a efflux of time limited thereby. It is not disputed that on January 1, 1962, the period of the lease had expired. Only if the plaintiffs desired to lease the plot, they had to do it first to defendant No.1. Plaintiffs were not bound to lease after the period expired. The plaintiffs did nothing thereafter which would amount to an acquiescence or consent to defendant No.1 continuing as a lessee subject to the terms and conditions mentioned in the lease deed.

15. The reference in the compromise decree to the rights of defendant No.1 must be read not divorced from the entire compromise decree which starts with a categorical assertion that the period of the lease has expired, fixes a new monthly standard rent and makes the tenancy a monthly tenancy with effect from September 1, 1962 and only keeps alive the rights of defendant No.1 with regard to the structure which he had constructed on the plot. The compromise decree does not keep alive or open any of his rights in respect of the old registered deed which had expired.

16. Reading the lease deed and the compromise decree together it is clear that the only right which defendant No.1 could claim was the right to compensation as provided under clauses 6 and 7 of the registered lease deed. That right was kept undecided in the compromise decree. On a plain reading of the lease deed and the compromise decree, I find that no other inference is possible. Mr. Lalit's argument that in spite of the expiry of the lease deed, defendant No.1 continued to have the right under the lease deed to sublet the plot and structure or that the lease deed was subject to a covenant of renewal must be rejected as baseless. The lower Courts were, therefore, quite right in holding that with effect from January 1, 1962, defendant No. 1 became purely a statutory tenant, who could not sublet the suit plot to defendants Nos. 2, 9, 13 and 17 as he did after January 1, 1962 in contravention of Section 15 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. He became a statutory tenant under Section (11) (e) as a person remaining after the determination of the lease in possession with the consent of the landlord under the compromise decree. The only contractual right which survives to his benefit was his right to claim compensation in respect of the structure built by him prior to January 1, 1962. He had no right to sublet the plot or assign or transfer his interest in the plot in any other manner, as such subletting, assignment or transfer was prohibited under Section 15.

17. In view of this conclusion, it is not difficult to reject the third contention of Mr. Lalit. It is undisputed that defendant No.1 inducted defendant No.2 in a godown and defendants Nos. 9, 13 and 17 in parts of the structures which were already standing on the plot, after January 1, 1962. That is the concurrent finding of fact arrived at by the two Courts and cannot be challenged in this Court in a petition under Article 227 of the Constitution as the said finding is based on careful appreciation of the evidence by the two Courts.

18. What is argued by Mr. Lalit however, is that as the structure built on the plot belonged to defendant No.1, he had every right to induct defendants nos. 2, 9, 13 and 17 even after January 1, 1962 as the tenants of the structures in which the plaintiffs had no interest whatsoever. he argued relying on Lala Laxmipat Singhania v. Larsen and Toubro Ltd., : AIR1951Bom205 ; Bhatia Co-operative Housing Society Ltd. v. D. C. Patel, : [1953]4SCR185 ; Vinayak Gopal Limaye v. Laxman Kashinath Athavale, : AIR1957Bom94 and Mrs. Dossibai N. B. Jeejeebhoy v. Khemchand Gorumal, 64 Bom LR 256 and an unreported decision of Patel and K. K. Desai, JJ. in Civil Revision Application No. 1511 of 1960 dated 21-11-1962, that defendants Nos. 2 to 17, who occupied the structure built by defendant No.1 were merely licensees in respect of the suit plot. He argued that no interest of defendant No.1 was assigned or transferred or conveyed to the said defendants Nos. 2 to 17 by making them tenants of the structures. Although the question did not specifically arise for consideration in the other cases, in civil revision application no. 1511 of 1960, D/- 21-11-1962 Patel and K. K. Desai, JJ. did hold as follows : -

'As held by the learned trial Judge, with whom we agree, since the petitioner was merely a tenant of the superstructure belonging to opponent 2, it cannot be said that by that reason alone he was also a sub-tenant in respect of the open pieces of the plot. As the learned Judge says, it only means that he was a licensee of the land and a tenancy of the superstructure. Once it is held that he was merely a licensee of the land, there can be no question of application either of Section 14 or of Ordinance III of 1949 or the subsequent amended Section 15 of the Rent Restriction Act.' As this question did not directly arise for consideration in the other cases, it is unnecessary to discuss them. The decision of Patel and K. K. Desai, II. is binding on me. The leave granted to appeal to the Supreme Court against the decision in S. C. C. A. 155/1963 was revoked on April 5, 1963 as the value was inflated in the application. It must, therefore, follow that Mr. Lalit is right in his contention that none of the defendants Nos. 2 to 17 became the sub-tenants of the suit plot.

19. However, the decision of Patel and K. K. Desai, JJ. was given in the context of the question as to whether the petitioner in that case, who was the obstructionist, could set up a plea of sub-tenancy. A reference in this connection was also made before me to the decision of Bal. J. in special civil application No.1 of 1966 decided on 2-3-1966 and the decision of Bhasme, J. in special Civil application No. 1191 of 1967 decided on 10-3-1970. Bal, J. was of the view that the question as to whether a person, who was inducted in the structure built by the lessee of a plot, or is not a sub-tenant depends on the facts and circumstances of each case, observing as follows with reference to the judgment of Patel and K. K. Desai, II : -

'The ratio of this decisions that a tenant of the superstructure belonging to a lessee does not automatically by operation of law, become a sub-tenant of the lessor. the alternative contention of Mr. Nariman stated above must, therefore, be rejected. The decision does not, however, go so far as to say that a tenant of the superstructure can never be a sub-tenant of the land under it. It is possible to let out the structure along with the land under it. It is also possible to let out the structure along and to allow the land under it to be used by way of licence. What has been actually done is a question of fact to be determined in each case.'

Bhasme, J. also referred to the said decision of Patel and K. K. Desai, JJ and the decision of Bal. J. in the context of the definition of the word 'lease' in Section 105 of the Transfer of Property Act and in the light of the facts of the case before him and concluded : -

'In the present case Khambatta was the lessee of the open plot of the land. He had built the superstructure on the land. When he let out the various portions of the built structure to the several occupants, he can do so only when he parts with his lease hold interest in the land. He owned the structure and, therefore, there was no difficulty in handing over the possession of the structure to the several occupants, who were his tenants. But when he inducted the several tenants on the and to occupy the structure, then in law he was creating the sub-leases in favour of the several tenants in respect of the portions of the land under the structure. The legal consequence of the transaction effected between Khambatta and the several occupants is that the occupants become the sub-lessees in respect of the land. It is not possible in the absence of any evidence to break up the transaction in the manner in which Mr. Andhyarujina suggests that it should be done. It is not possible to hold that the several occupants were licensees in respect of the land and tenants in respect of the structure. In fact it is possible to hold in the reverse order. The various occupants can be the sub-tenants in respect of the structure. In fact it is possible to hold in the reverse order. The various occupants can be the sub-tenants in respect of land with the right to occupy the structure. In other words, in law they can be licensees of the structure and sub-tenants in respect of the open lands.'

The context in which the question arose before Bhasme, J. was the finding of the appellate Bench that under the terms of a consent decree, Khambatta had relinquished his rights or interest in the superstructure erected by him and immediately Khambatta's tenants became sub-tenants of the owner of the plot who has released the plot to Khambatta. As stated above, the Division bench decision is binding on me and it is unnecessary for me to consider the validity of the view taken by Bhasme, J.

20. When apply precedents, we can never forget the warning given by Lord Halsbury in Quinn v. Leathem, 1901 AC 495

' ............ every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found .......... a case is only an authority for what it actually decides.'

It cannot be quoted for a proposition that may seem to follow logically from the decision. Lord Halsbury commented on this mode of reasoning as follows : -

'Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.'

21. With respect, what Patel and K. K. Desai, JJ. decided was also in the context of the question before them as to whether the obstructionist could be regarded as a sub-tenant under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 of the plot of land in dispute in that case. It is clear that they have laid down that the tenant of a structure built by a tenant could never claim the sub-tenancy in respect of the plot of land. That decision must apply in the present case also.

22. In paragraph 3 of the written statement filed by defendant No.1 he contended that he had a right to sublet the plot to defendants Nos. 2 to 17 and his subletting was not prohibited by Section 15 and, therefore, he could not be evicted for unlawful subletting. He did not contend that merely because he sublet the structure to defendants Nos. 2 to 17, they automatically became the sub-tenants of the plot. Clause 9 under the registered lease deed, which permitted the petitioner to induct defendants Nos. 2 to 17, permitted him to do so only in respect of the structure and not in respect of the plot of land. The contention of Mr. Lalit that the lease deed gave defendant No.1 right to sublet the plot also to defendants Nos. 2 to 17 is not borne out by the terms of lease deed. In the absence of any such terms, following the decision of Patel and K. K. Desai, JJ. I must hold that defendants Nos. 2 to 17 were not the sub-tenants of the suit plot.

23. The main question, however, is as to whether by inducting defendants Nos. 2, 9, 13 and 17 after January 1, 1962, defendant No.1 rendered his tenancy liable to be terminated by the landlord under Section 13(1)(e). Mr. Lalit submitted relying on the aforesaid decision of Patel and K. K. Desai, JJ. that since the letting out of the superstructure, as held by them, id not attract the provisions of Section 14 or of Ordinance III of 1949 or of the subsequent amended Section 15 of the Rent Restriction Act, it would not amount to an unlawful subletting of the whole or part of the premises or assignment or transfer in any other manner of defendant No. 1's interest in the plot within the meaning of Section 13(1)(e).

24. The argument made by Mr. Lalit is undoubtedly very attractive at the first blush. But, as stated above, the decision of Patel and K. K. Desai, JJ. must be confined to the facts and the issues raised before them. Logical extensions and corollaries from the observations made in the judgment cannot be permitted so as to defeat the provisions of Section 13(1)(e) and Section 15. It is true that they have referred to Section 14, Ordinance III of 1949 and also Section 15 of the Rent Restriction Act. But all these plea of the obstructionist in the case that he was a sub-tenant. That was not a case where a tenant was sued on the ground that the tenant had rendered himself liable to be present case. In the facts of the present case, however, the main question, as stated above, is whether the landlord has established the ground under Section 13(1)(e). It may be that in view of the decision of Patel and K. K. Desai, JJ., which binds me, I must hold that defendant No.1 did not unlawfully sublet the plot to defendants Nos. 2, 9, 13 and 17 and that he merely granted them a licence to use the portions of the land on which the structures let out to them stood.

25. That is, however, not the only ground on which the landlord can succeed under Section 13(1)(e). Unlawful subletting is one ground under that sub-section and under Section 15. If the landlord establishes any other assignment or transfer of any interest of the tenant other than unlawful subletting, he is entitled to succeed under Section 13(1)(e). Relying strongly on the decision of Patel and K. K. Desai, JJ., Mr. Lalit submitted that if the tenant of the structure was merely a licencee in respect of the plot, could not be said that he had any interest in the suit premises and, therefore, applying that very decision it must be held that defendant No.1 did not transfer any interest which he had in the plot to defendants Nos. 2, 9, 13 and 17. This submission ignores the nature of a licence. It is true that for creating a lease, an interest in the land must be transferred. It is also true that under Section 52 of the Easements Act, it is only when the right transferred as a licence is not an easement or interest in the property that the right is called a licence. But what is required to be established by the landlord under Section 13(1)(e) is that the tenant has 'unlawfully sublet,' which cannot be the case in respect of the superstructure, as in the present case, 'or assigned or transferred in any other manner his interest therein.' The words 'in any other manner' have reference to earlier. In certain circumstances, such other manner may be even creation of a sort of irrevocable licence. The licence, in cases like the present where a superstructure is let out, in respect of a plot of land is in the nature of an accessory licence referred to under Section 55 as it is a licence necessary for the enjoyment of the tenancy rights of the superstructure. Under Section 60 (a) of the Easements Act, the licence cannot be revoked by the defendant No.1 because the licence is coupled with the transfer of property in the superstructure as long as such transfer is in force. It is true that defendant No.1 has not transferred his entire interest in the land to the tenants of the superstructure. But it must be held to be a transfer or assignment included in the words 'in any other manner' of the interest of defendant No.1. In the facts and circumstances of the case, therefore, it must be held that although the plaintiffs are not entitled to succeed on account of the unlawful subletting, they are entitled to get possession under Section 13(1)(e) as it is established that defendant No.1, who became a statutory tenant on January 1, 1962, transferred unlawfully a licence with respect to the suit plot to defendants Nos. 2, 9, 13 and 17, which was a transfer r assignment 'in any other manner of his interest' within the meaning of Section 13(1)(e).

26. Turning to the findings of the trail Court with regard to this ground of eviction, what I find is that the trial Court came to the conclusion that as defendant No.1 had a right to take subtenants, the subtenancies created in favour of defendants Nos. 2 to 17 were not unlawful. that is why the trial Court passed only a decree for symbolical possession against them while passing a decree for actual possession against defendant No.1 on the ground of defaults. The learned Extra Assistant Judge, on the contrary, reversed the said finding holding that defendant No.1 unlawfully sublet the suit plot or assigned or transferred his interest in the suit plot to defendants Nos. 2, 9, 13 and 17 after January 1, 1962 holding inter alia as follows :

'As the facts stand, defendant 1 has let out the various parts of his buildings to defendants 2, 9, 13 and 17. The portions of the buildings so let out by defendant 1 consist of the portions of the buildings and the portions of the land underneath them respectively. Under the circumstances, defendant No.1 will have to be taken to have not only let out the structures to the aforesaid defendants but also the land beneath them respectively. Undoubtedly, in law, this cannot be considered as subletting as held in the two aforesaid rulings, still Section 13(1)(e) is not restricted to subletting only, but it also includes transfer or assignment of the interest of the tenant in the premises or part of it, in any manner. When defendant No.1 has let out the part of the suit plot to the aforesaid defendants, though along with his structures thereon he has to be held to have contravened provisions of Section 13(1)(e) of the Bombay Rent Act. And the plaintiffs are entitled to claim possession from him on that ground.'

For the reasons stated above, I agree with the said conclusion of the learned Extra Assistant Judge. The third contention of Mr. Lalit must also fail.

27. If that contention fails, then special civil application No. 1839 of 1968 filed by defendant No.2 and Special Civil Application No. 1840 of 1968 filed by defendants Nos. 4 and 7 must also fail as they were mere licensees and if the landlord is entitled to recover possession from defendant No.1, the decree for eviction can be executed against them also.

28. The last contention of Mr. Lalit is with regard to the compensation for the structure built by defendant No.1. The learned Assistant Judge set aside the decree passed by the trial Court in this connection with the following remarks : -

'Further the only contention raised by defendant No.1 in his written statement about compensation for his structures was that he was not liable to be evicted from the suit plot, unless the plaintiffs paid him compensation for his structures. He had nowhere claimed any compensation in this suit and as such there was no question of defendant No.1 valuing his structures or paying the court-fees thereon. The aforesaid pleas raised by defendant No.1 were in connection with the possession of the suit plot, which would be heard and decided by the lower Court exercising special jurisdiction under the Bombay Rent Act. I am, therefore, not inclined to accept the argument of the learned Counsel for the plaintiffs on this point.'

Thus the learned Assistant Judge has taken a very technical view of the pleadings and disallowed the claim of defendant No.1 for compensation to which he was entitled under clauses 6 and 7 of the registered lease deed quoted above. An issue was framed in the trail Court on the topic at Issue No. 5 and the learned trial Judge held that the plaintiffs were not entitled to recover possession of the suit plot without paying him compensation for the building situated on the suit plot. There is considerable force in the reason given by the learned Assistant Judge in disallowing the claim of the defendant on the ground that he had not specifically asked for compensation and also on the ground that the Rent Court under Section 28 was not concerned with the claim for compensation. However, it is unnecessary at this stage to decide that question. Prima facie it seems that the plaintiffs are bound to pay compensation only if they were to take possession under the terms of the lease. The decree for eviction is passed against defendant No.1, in the facts and circumstances of the present case, not under the terms of the lease but under Section 13(1)(e), which does not provide for any compensation being paid to defendant No.1 for the structure which he has built. It at all defendant No. 1 has any right to claim compensation from the plaintiffs, he is at liberty to file a suit, if so advised, for recovering compensation before or after the execution of the decree passed against him.

29. For these reasons, the decree passed by the learned Extra Assistant Judge is confirmed. The rule in each of the three petitioners is discharged with costs. In view of this order and further in view of the fact that opponent No. 13 has already appeared through an Advocate in this Court, no orders are necessary on Civil Application No. 939 of 1972.

30. Order accordingly.


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