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Virji Nathuram and ors. Vs. Krishnakumar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberWrit Petn. No. 3400 of 1983
Judge
Reported inAIR1985Bom429; 1985(1)BomCR332
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 12(3); Constitution of India - Article 227
AppellantVirji Nathuram and ors.
RespondentKrishnakumar
Appellant AdvocateNarendra V. Walavaltar, Adv.
Respondent AdvocateK.J. Abhyankar and; C.M. Chokhani, Advs.
Excerpt:
.....terms of lease, the lessee was prohibited from sub-letting the land but was permitted to erect superstructures and let them out to third parties- an eviction decree was passed against the lessee on the ground of non-payment of rent- the case questioned whether the tenants of superstructures could resist execution of decree- it was held that the decree which was being executed by the respondent could not be properly executed unless the status of the petitioners as licensees on the land also came to end- the petitioners therefore could not resist the execution of the decree which had been undoubtedly passed validly against the original lessee- all the subsidiary interests which were created, even if legal, by the original lessee pursuant to the lease deed must necessarily come to an..........lease deed, then the petitioners would be tenants of the structure which had been erected on the land originally let out to the judgment-debtor. the thrust of the arguments on behalf of the petitioners in the court of first instance was that being thus legal tenants of the structure, they could not be evicted in execution of a decree which was obtained by the respondent in respect of the open plot of land only.4. the learned trial judge by his judgment and order dt. 5th april 1980 discharged the obstructionist notice by holding that the petitioners were entitled to remain as tenants of the structure and after the removal of the original judgment-debtor, they became the tenants of the respondent. this order was challenged by the respondent in appeal, being appeal no. 309 of 1980 which.....
Judgment:
ORDER

1. This petition under Art. 227 of the Constitution is by 14 persons who are obstructing the execution of a decree obtained by the respondent in a suit, being R.A.E. & R. Suit No.124/856 of 1964 filed by the latter in the Court of Small Causes at Bombay. The said suit had been filed against Shivnarayan and Surajmal under the provisions of the Bombay Rents Hotel and Lodging House Rates Control Act (hereinafter referred to as the 'Bombay Rent Act') for possession of a plot of land which had been originally given to the aforementioned Shivnarayan under a registered lease deed dt. 29th Sept.1962. Under the said lease deed the respondent had prohibited the said Shivnarayan from subletting the plot without his prior permission but a clause in the lease deed had permitted the said Shivnarayan to erect structures which he was allowed to let out to third parties.

2. The suit, however, had been filed on the ground, among others, that the said Shivnarayan was guilty of arrears of rent for more than six months and that the respondent was entitled to a decree under S. 12(3) of the Bombay Rent Act. The trial Court passed a decree on 27th Nov.1974. An appeal, being Appeal No.183 of 1975, preferred by the said Shivnarayan and Surajmal came to be dismissed by the Appeal Court because the appellants did not comply with certain orders passed by the appellate Court.

3. Thereafter the respondent took out execution proceedings and in these execution proceedings, the petitioners have caused obstruction. The respondent, therefore, took out obstructionist notice No.157 of l976 for the removal of the obstruction on the ground that the petitioners are claiming through the judgment debtors and they had no right to remain in possession of the property. The petitioners, however, resisted the obstructionist notice by contending that they had been lawfully let in the structure erected by the original judgment-debtor under the express permission granted by the lease deed itself. According to them, the lease deed not only did not prohibit but specifically permitted the original tenant to construct a structure and to induct third parties into the said structure. If this permission given under the lease deed properly interpreted and if the action of the original judgment debtor is appreciated in the light of this provision contained in the lease deed, then the petitioners would be tenants of the structure which had been erected on the land originally let out to the judgment-debtor. The thrust of the arguments on behalf of the petitioners in the court of first instance was that being thus legal tenants of the structure, they could not be evicted in execution of a decree which was obtained by the respondent in respect of the open plot of land only.

4. The learned trial Judge by his judgment and order dt. 5th April 1980 discharged the obstructionist notice by holding that the petitioners were entitled to remain as tenants of the structure and after the removal of the original judgment-debtor, they became the tenants of the respondent. This order was challenged by the respondent in appeal, being Appeal No. 309 of 1980 which was heard and allowed by the appellate Bench of the Small Cause Court by its order dt 7th Sept.1983. The judgment is fairly elaborate and has dealt with every argument before the appellate Bench raised on behalf of both the petitioners and the respondent.

5. Though the law which had to be interpreted by the appellate Bench in the year 1983 has become well settled, in view of the arguments advanced and in view of probably the stakes involved. the appellate Bench thought it fit to bestow more than normal attention upon the case which came up before it and, therefore, dealt with the questions in a fairly elaborate judgment.

6. From the facts which I have already mentioned above, it is clear that the original judgment-debtor was a lessee of the land given to him under a registered lease deed by the respondent. The said registered lease deed prohibited the subletting of the demised premises by the lessee, but one clause of the said registered lease deed permitted the lessee to erect, if he so desired, a building on the said land and to induct third parties in the said building. The petitioners have accordingly been inducted in the structure which was constructed by the original lessee pursuant to the permission given to him under the registered lease deed. The question to which the Courts below had to address themselves was whether the persons who had been inducted in the superstructure erected on the demised land could be regarded as subtenants of the land and whether they were protected under the provisions of the Bombay Rent Act. A variation of the same question was whether the persons who were occupying the building permitted to be erected by the terms of the lease could continue to occupy the said building after the determination of the head-lease of the land on which the said building had been erected.

7. The appellate Bench referred to a judgment of this Court delivered by Patel and K. K. Desai JJ. in S. R. Shetty v. P. N. Kulabawala (C.R.A. No. 1511 of 1960, decided on 21st Nov. 1962). The appellate Bench noticed that the Division Bench had held that the persons who had been inducted in a superstructure on a land which was the subject-matter of the lease could not be the subtenants of the land on which the superstructure was erected. In another judgment of this Court delivered by Sawant J. in Damji v. Om Prakash, (1980)1 RCR 142 it was held that where land can be leased out separately and a building is erected on the said land, the lease in respect of the building does not necessarily include lease in respect of the land underneath it. In a more recent judgment in Dinkar S. Vaidya v. Ganpat S. Gore, : AIR1981Bom190 , Sharad Manohar J, has made an exhaustive survey of the entire law on the subject and has pointed out that when a land is given on lease by a landlord to a tenant and the latter erects a structure on that land, the occupants of the structure do not become the tenants or the subtenants of the land originally leased. At the most, they remain the tenants of the structure which had been erected by the original lessee of the land. In so far as the status of the occupants of the said structure is concerned vis-a-vis the laud, they can at the most he held to be licensees of the land. In view of this long line of decisions which have held the field, the appellate Bench naturally came to the conclusion that the petitioners were not entitled to remain in occupation of the structure, and in execution of the decree which is passed in respect of the land on which the said structure is raised. they will have to be necessarily evicted.

8. It is against this order of the appellate Bench of the Court of Small Causes that the present petition has been presented under Article 227 of the Constitution. Mr. Walavalkar, the learned Advocate appearing in support of the petitioners has taken me through the judgments of the two Courts below and has also assisted me by referring to the various judgments which were the subject-matter of discussion in the Court below. In view of the fact that there is on this legal aspect a long line of decisions which has not been interrupted by any judgment, Mr. Walavalkar naturally could not contend that the petitioners had any status higher than that of licensees as far as the suit land is concerned. He, however, advanced an argument, which has not been advanced in the same manner in the two Courts below, that since under the terms of the lease the original lessee was not only given permission but was entitled to erect structures in which he could induct third persons and even after the determination of the original lease the superstructure was to remain intact. the persons inducted in the superstructure could not be evicted pursuant to a decree passed in respect of the land. The submission is that the lease deed permitted the erection of a superstructure on the land. The lease deed also permitted the original lessee to induct third persons as tenants of the superstructure erected by the original lessee. The person so inducted were lawful tenants of the structure because their tenancy was not only not prohibited by the terms of the lease deed but was specifically permitted by the terms of the lease deed. The lease deed also shows that after the determination of the original tenancy, the superstructure need not be demolished. On the other hand, it was allowed to be returned to the original landlord, namely, the respondent before me. If this is so, the respondent could not in execution of the decree, which relates to the land, proceed to evict persons who are admittedly the lawful tenants of the superstructure erected on the land. If the structure remains, there is no reason, says mr. Walavalkar, why the occupants of the superstructure should vacate because their tenancy is valid and legal.

9. The argument is highly attractive. Though this argument had not been advanced in such terms in the Court below, since it is based on the facts already on record and it is raised in the form of n legal proposition. I have heard Mr. Walavalkar at length on the same. In my opinion, though as mentioned above, the argument is highly attractive, it ignores one basic ingredient in the dual relationship which has come into existence as a result of the lease deed executed by the respondent in favour of the original lessee and the law laid down by the long line of decisions to which I have already made reference earlier. The original lessee has naturally got to be evicted pursuant to the decree passed in the suit preferred by the respondent. The original lessee has to be evicted from the entire land which was the subject-matter of the lease which has now been determined. Undoubtedly, as has been pointed out repeatedly, the original lease has permitted the erection of a superstructure on the land and the induction of third parties in the said superstructure. The persons so inducted were no doubt the tenants of the superstructure which was erected. The status of the persons who were inducted though legally, in the superstructure vis-a-vis the land is necessarily that of licensees and not any other higher status. At present the decree is being sought to be executed in respect of the land which was the subject-matter of the original lease and upon which the status of the petitioners is nothing more than that of licensee. The correct legal position is that on the determination of the lease or other interests which are created on the land including the superstructure, the interest, if it can be so called, of the licensees has necessarily to come to an end. The decree which is being executed by the respondent cannot be properly executed unless the status of the petitioners as licensees on the land also comes to an end. It is in this sense that the petitioners have got to be evicted from the suit land This cannot be done unless naturally they are also evicted from the structure which is standing on the land in question. Therefore, in execution of the decree by the respondent inexorably the possession of the petitioners of the land as licensees must also come to an end. The petitioners cannot remain in possession of the structure unless they have a right to remain in possession of the land as licensees, which they are not entitled to do in view of the decree which has been validly passed against the lessee. The petitioners, therefore, cannot resist the execution of the decree which had been undoubtedly passed validly against the original lessee. All the subsidiary interests which were created, even if legal, by the original lessee pursuant to the lease deed must necessarily come to an end unless otherwise they are protected under the provisions of the Bombay Rent Act. The possession of a licensee in the year 1964 when the suit was filed could not survive the determination of the lease in respect of the land on which the licence was created It is thus that the petitioners do not enjoy any protection even in respect of the structure in which they have been inducted legally pursuant to the term of the lease.

10. In the result, this petition must fail Rule is discharged. Mr. Abhyankar who appears for the respondent mentions that the decree will not be executed till 17th November 1984. No order as to costs.

11. Rules discharged.


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