1. This petition is directed against judgment dated 30-9-1974 passed by the Additional District judge, South Kanara, Mangalore, in H. R. C. Appeal No. 3 of 1970, allowing the appeal filed by the present respondent against the order dated 24-12-1969 passed by the Munsiff, Coondapur, in H. R. C. Suit No. 4 of 1969, and directing eviction of the petitioner from the premises in question viz., 7 cents of vacant land in survey No. 107/7 of Coondapur Kasaba, District South Kanara.
2. The undisputed facts are that the respondent is the owner of 7 cents of land in survey No. 107/7 of Coondapur Kasaba, District South Kanara, and that is the premises concerned in this case. The respondent leased out this vacant land to the petitioner for running timber depot.
*(Against order of Addl. Dist. J., South Kanara, Mangalore, D/- 30-9-1974
The respondent filed a petition in H. R. C. Suit No. 4 of 1969, before the Munsiff at Coondapur, against the petitioner' under S. 21(1)(a), (f) and (h) of the Karnataka Rent Control Act, 1961 (to be hereinafter referred to as the Act), It is necessary to state here itself that in this petition only the provision in S. 21 (1) (f) of the Act arises for consideration as the case of the respondent in regard to application of the provisions in S. 21 (1) (a) and (h) has been negatived by the two courts below. The respondent contended that the petitioner had sub-leased a portion of this 7 cents of land to a man from Malabar for constructing a bunk-shop and, therefore, was liable to be evicted in view of S. 21 (1) (a) (f) of the Act.
4. The petitioner contended that he bad not leased any portion of the land viz., the premises to anyone, but he himself had constructed a bunk-shop because the same was required by the respondent himself and rented it out to the respondent and the respondent in turn rented it out to different persons.
5. The learned Munsiff has held that the structure the petitioner himself had constructed constituting the bunk-shop and the petitioner had leased that structure to Chandrasekhar and others and that the petitioner had failed to establish that he had leased that structure to the respondent, as alleged by him. The learned District judge has, in his judgment, observed that it was admitted that the structure had been constructed by the petitioner. Sri K. Ramakamath, the learned Advocate appearing on behalf of the respondent, urged that the consistent case of the respondent was that the petitioner had leased out a portion of the premises in the form of land itself and that the person to whom the lease of the portion of the land had been given, had constructed a bunk-shop and that is also the say of the respondent in his evidence. I am unable to agree with this contention of Sri Ramakamath because the respondent has in his examination-in-chief stated as follows:
'Respondent has sub-leased the bunk to Chandrashekhar.'
He has further on in his cross-examination, stated as follows:
'Respondent might have spent Rs. 300/- to Rs. 400/- for the structure. Bunk was put 5-6 months after. It was leased out. He used it. He leased to Sri. W. Baliga for 3-4 months. I do not know who is now tenant. 7-8 month's back it was let out to Chandrashekhar. He was for 3-4 months Respondent is now in possession.'
This say of the respondent in his evidence before the Munsiff is clear enough to show that the respondent has admitted that the petitioner himself had constructed the bunk-shop and leased out the bunk-shop to different persons.
6. The learned Munsiff after holding that the petitioner had constructed the bunk-shop and leased it out to different per-sons, proceeded to apply the principle laid down in the decision in Mrs. Dossibai v. Khemchand : 3SCR928 to the effect that what had been leased by the petitioner was not a portion of the premises taken by him on lease front the respondent but only a bunk-shop which the petitioner himself had constructed and, therefore, the petitioner had -jot sub-let any portion of the premises taken by him from the respondent and as such S. 21 (1) (f) of the Act was not attracted. He dismissed the petition of the respondent On the same finding on facts the learned District judge has observed that what has been observed by the Supreme Court in Dossi Bai's case is by way of obiter and that it has to be held that what was sub-let by the petitioner was not a building but mainly the open space and as such the petitioner was liable to be evicted in view of S. 11(1)(f) of the Act.
7. In Dossibai's case AIR 1968 SC 1%9 the Supreme Court was considering a lease in regard to open land. The land leased was to be used, as per the terms of the lease, for residence or business after constructing buildings thereon. Their Lordships after discussing the provisions of Ss. 5, 8, 6 and 15 of the Bombay Rents, Hotel and Lodging House Rates Control Act, held that though an open land had been leased, the lease in question was for residence or business and as such was within the ambit of S. 6 of the said Act. In paragraphs 11 and 12 of their judgment, their Lordships have held as follows:
'It is unnecessary for us to decide whether if there is no contract to the contrary, S. 15 will really stand in the way of a lessee of the land letting out buildings constructed by him on such land. We may say however that there is in our opinion much force in the argument which found favour with the Bombay High Court in Vinayak Gopal v. Laxman Kashinath, : AIR1957Bom94 , where the very question which is now before us arose for decision, that the bar of S. 15 will operate only in the WRY Of letting out the land of which lease has been taken, but will not stand in the way of letting the building constructed on the land.
In that caw the Bombay High Court held that where land is leased for the purpose of construction of buildings for residence, the land is 'let for residence' within the meaning of S. 6 of the Rent Act. Mr. Bhatt devoted a considerable part of his argument to persuade us that some of the reasons given in that judgment do not stand scrutiny. We think it unnecessary however to examine whether all the reasons given in the judgment are correct. For, as already indicated, the words 'let for residence- on a proper construction would cover the case of open land being let f or construction of residential buildings and so the conclusion reached by the Bombay High Court in Vinayak Gopal's case is, in our opinion, correct.'
8. It cannot at all be gainsaid that their Lordships of the Supreme Court have approved the view taken by the Bombay High Court in the decision in Vinayak Gopal Limaye v. Laxman Kashinath Athavale, : AIR1957Bom94 . In paragraph 9 of the judgment in Vinayak Gopal Limayes case, it has been held as follows:
'It was suggested during the course of the hearing of these revisional applications that, if a building lease attracts the provisions of the Rent Act, the occupants of the building would have to be regarded as sub-tenants within the meaning of S. 15, and their subtenancies would fall within the mischief of S. 15 of the Act. We are not impressed by this argument. Section 15 no doubt enjoins upon the tenant not to sub-let or transfers his rights. But the prohibition is in respect of the whole or any part of the premises let to the tenant; and when a builder lets out a building to his tenants, technically he is not leasing out the open plot which has been let to him by his lessor, but he is letting out the structure built by him. If it is permissible to draw a distinction between the open plot which is the subject-matter of the first lease and the building which is the subject-matter of the second lease, then S. 15 may not affect the rights of the actual occupants let in by the builder of the building. No doubt, this distinction may appear to be technical and notional; but as I have already indicated, some of the unusual features which building leases of this kind disclose are the inevitable result of the doctrine of dual ownership recognised under the Indian law.'
9. The facts held proved in this case do show that there is a line of distinction between the open land below bunk-shop and the bunk-shop. What has been held to have been proved as leased out by the petitioner is only the bunk-shop, It is undisputedly a temporary structure. There is no other material to show that the petitioner had leased the plot of the land below the bunk-shop also. I am in respectful agreement with the position in law laid down by the Bombay High Court in Vinayak Gopal Limaye's case : AIR1957Bom94 and approved by the Supreme Court in Dossibai's case : 3SCR928 . The view of the learned District judge that what was leased by the petitioner to Chandrashekhar and others, was not a' building, but mainly the open space, is not correct on facts.
10. Sri Rama Kamath argued that lease of the bunk-shop by the petitioner to Chandrashekhar and others could not be dissociated from the land below it and as such it should be inferred that the petitioner had leased both the bunk-shop and the land below it to Cbandrashekhar arid others. I have already pointed out that a line of distinction is available on the facts of this case in the light of the view expressed by the Bombay High Court in Vinayak Gopal Limaye's case : AIR1957Bom94 .
11. In view of the foregoing reasons, this petition is allowed and the judgment dated 30-9-1974 passed by the Additional District judge. South Kanara, Mangalore, in H. R. C. Appeal No.3 of 1970, is set aside. No order as to costs under the circumstances of the case.
12. Petition allowed.