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Gobind Sahai Vs. NaraIn Dass and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal No. 240 of 1967
Judge
Reported inILR1972Delhi55
ActsDelhi Rent Control Act, 1958 - Sections 2
AppellantGobind Sahai
RespondentNaraIn Dass and ors.
Advocates: N.D. Bali,; R.M. Lal and; Arun Kumar, Advs
Cases ReferredGhanshiam Dos vs. Debi Prasad
Excerpt:
tenancy - premises - section 2 of delhi rent control act, 1958 - vacant land with boundary wall let out to tenant - criteria for vacant land to come within term 'premises' - vacant land should be appertaining to and forming part of building - it should be let out for residential or commercial purposes - vacant land without roof will not normally form part of 'premises' - such vacant land included in term 'premises' if same capable of being and intended to be used as such without roof. - - 3 and 5, but failed. the premises must consist of a building or part of a building and they must be let or intended to be let for a purpose like residence, commercial use 'or any other purpose which, in the context of the definition, must mean a useful purpose. or the like. that authority was,..........court. the facts in the case before the supreme court were that the landlord had let out only the vacant land while the tenant erected some structures which had to be removed by the tenant for they would become the property of the landlord at the end of the term, but the structures really belonged to the tenant. the supreme court, thereforee, held that what the landlord had let out was not any building within the meaning of the rent act. in this connection, the supreme court laid down the following test, namely :- 'in order to determine whether the lease is of a vacant land or of a building within the meaning of the act of 1960 we must take into account both the form and the substance of the transaction. in form the transactions in suit were leases of vacant land. the substance of the.....
Judgment:

B.C. Misra, J.

(1) This second appeal under section 100 of the Code of Civil Procedure has been filed by the defendant-tenant and is directed against the appellate order of the Additional Senior Subordinate Judge dated 2nd June, 1967 by which he maintained the decree of the trial Court dated 16th May, 1966 for eviction, but modified it in respect of recovery of compensation which he finally determined at Rs. 220.36 instead of Rs. 225.35 found by the Court of first instance.

(2) The facts of the case lie in a narrow compass. There is a plot of land measuring about 200 square yards situated in a colony in Delhi-Shahdara. On 1st February, 1968, the plaintiffs let it out to the defendant for a period of Ii months at the rate of Rs. 20.00 per month under a rent note dated 3rd February, 1958 (Exhibit P-1) and it is the construction of the said rent note and whether what had been let out is premises within the meaning of the Rent Act, is the question which has arisen for determination in this appeal.

(3) The plaintiffs served a notice of ejectment on the defendant-tenant and instituted a suit for eviction and recovery of damages for wrongful holding over in the Civil Court. The tenant-defendant contested the suit on the ground that under section 50 of the Rent Act, the Civil Court had no jurisdiction to entertain the suit as the property let out to him constituted the premises. It was also urged by the. defendant that there were previous proceedings between the parties where the plaintiffs filed a petition for eviction against him before the Rent Controller under the Rent Control Act. but it ended without any finding.

(4) On the pleadings of the parties, the following issues were framed:-

'1. Whether the property in suit is not premises as defined in Delhi Rent Control Acts OPD. 2. If issue No. 1 is proved, whether the Court has no jurisdiction to try the suit OPD. 3. whether the plaintiff is estopped from filing the suit in Civil Court as alleged by the defendant in his written statement? OPD. 4. whether the suit of the plaintiffs does not lie for rent OPD. 5. whether the notice to suit is in accordance with law OPP. 6. whether the plaintiff is entitled to damages, if so at what rate and for what period OPP. 7. Relief.'

(5) The learned trial Court, in answer to issue No. 1, held that the property in suit did not constitute premises and the answer was returned in favor of the plaintiffs. As a result, issue No. 2 was answered in favor of the plaintiffs. Issues Nos. 3 and 4 were answered against the defendant and issues Nos. 5, 6 and 7 were answered in favor of the plaintiffs and the suit for possession was decreed by removal of the shed or structure of the defendant and a decree for damages was also passed.

(6) The defendant-tenant in appeal before the lower appellate Court seriously challenged issues Nos. 3 and 5, but failed. He also challenged the answer to issue No. 1 faintly and the lower appellate Court came to the conclusion that the decision of the trial Court on this issue, was, in view of Exhibit P.I, unassailable and that in view of Chanda Lal vs. Ram Kishan Air 1952 All 60 the counsel for the appellant did not press his challenge to the issue further.

(7) In second appeal in this Court, the tenant-appellant has not challenged any other finding of the lower appellate Court, but has strongly contended that issues Nos. 1 and 2 ought to have been decided in favor of the defendant and it ought to have been held that the civil Court had no jurisdiction to try the suit as the property in dispute constituted premises as defined in the Rent Act.

(8) The Rent Act applicable to the facts of the case is the Delhi Rent Control Act 59 of 1958 (hereinafter referred to as the Act). Section 50 of the Act bars the jurisdiction of the civil Court to entertain any suit or proceeding * * * * to order eviction of any tenant from any premises to which Rent Act applies * * * * since the Controller is empowered to decide the same under the Rent Act. Section 14 of the Act places an embargo on the eviction of a tenant from any premises in spite of terms in a contract or provisions of any other law except on the grounds specified therein. 'The definition of the world 'premises' is, thereforee, a key which attracts the application of the Rent Act and the same has been defined in clause (j) of section 2 of the Act as follows:-

'(J)'premises' means any building or part of a building which is, or is intended to be let separately for use as residence or for commercial use or for any other purpose and includes- (i) the garden, grounds and out-houses, if any, appertaining to such building or part of the building: 5-879HCD/71 (ii) any furniture supplied by the landlord for use in such building or part of the building; but does not include a room in a hotel or lodging house.'

(9) The question for determination, thereforee, is whether on a true application of the said definition, the property in dispute constitutes premises. The rent note (Exhibit P.I) recites that what has been let out is a gher (enclosure) on a plot of land. The plaintiffs in paragraph 2 of the plaint asserted that the defendant had taken on lease the said open and vacant plot of land under the rent note (since marked Exhibit P. 1). In the written statement, the defendant admitted the contents of the said paragraph to be correct subject to facts mentioned in paragraph I where the defendant had urged that the civil Court had no jurisdiction to try the suit as the matter was triable by the Controller under the Rent Act.

(10) The evidence on the record discloses (and the same is the undisturbed finding of the Court of first instance) that what was let out was an open piece of land with a brick enclosure around, but with no roof or any other construction and that after accepting the lease, the defendant had put up tin-sheds on the same. The primary facts, thereforee, are that it is an open piece of land containing boundary walls or walls around but without any roof and without any other structure. Can the same, as a matter of law, constitute premises

'The definition of 'premises', as given in the Rent Act, shows that it means any building or part of a building let separately for use. Two essential conditions, thereforee, follow from it. The premises must consist of a building or part of a building and they must be let or intended to be let for a purpose like residence, commercial use 'or any other purpose which, in the context of the definition, must mean a useful purpose. This leads us to the consideration of the question as to what is a building. Saunders words and phrases Legally defined, published by Butterworth, has answered the question by quoting that 'the imperfection of human language renders it not only difficult, but absolutely impossible, to define the word 'building' with any approach to accuracy, one may say of this or that structure, this or that is not a building; but no general definition can be given *****a building is usually understood a structure of considerable size, and intended to be permanent, or at least to endure for a considerable time. For example, a cow-house or stable may be a building, but a bird cage or a wig-box or a dogkennel, or a hen-coop do not constitute buildings.'

(11) In Stroud's Judicial Dictionary it is stated that what is a building must always be a question of degree and circumstances: its ordinary and usual meaning is, a block of brick or stone work, covered in by a roof. This definition is based on the observations of Lord Esher, M. R. in Moir vs. Williams, (1892) I Q B 264 (2) where the learned Judge observed that ordinarily a building is an enclosure of brick or stone work covered in by a roof. The brick or H stone work is not a necessary ingredient of a roof and the same has been settled in Great Britain by the Court of Appeal in Aylward vs. Matthews (1905) I K B 343, where they held a wooden structure to be a building, but the existence of a roof was still considered to be an important constituent of a building.

(12) In Trasdell vs. Gay, (1859) 13 G311, it was observed that a 'building' cannot always be held to include every species of erection on land and that, taken in its broader sense, it very often means only an erection intended for use and occupation as a habitation, or for some purpose of trade, manufacture or ornament, constituting a fabric or edifice, and not merely a wall, a fence, a gate. or the like.

(13) In the authorities of our country, there is a judgment of Mookerjee, in Corporation of Calcutta vs. Benoy Krishna Bose, 15 C w N 84, where his lordship, sitting in a Division Bench, has examined a number of authorities and has come to the conclusion that a boundary or compound wall, without the roof, did not constitute a building. That authority was, however, delivered in construing the provisions of Calcutta Municipal Act and although the observations are helpful, they cannot constitute a safe guide for interpreting the definition in the Rent Act.

(14) In the High Court of Calcutta, P. B. Mukherji, J., in an original suit reported as Tulsiram Shaw vs . R. C. Pal Limited, : AIR1953Cal160 , held that a vacant piece of land containing the boundary wall, but no roof did not constitute premises, but it remained a vacant piece of land within the meaning of the Transfer of Property Act.

(15) The High Court of Allahabad in the case of Chanda Lal (supra) construing the word 'building' contained in the Rent Act of that State, clearly held that the building connotes a roofed structure and not a mere wall or fence.

(16) The High Court of Patna in Smt. Jugal Kishori Devi vs . Ashok Mills and Foundaries and others, : AIR1961Pat330 , held in respect of the relevant provisions in the Rent Act that a vacant piece of land let out for erecting buildings for industrial use did not constitute a building since the superstructure did not belong to the Lesser and it was not governed by the Rent Act. Justice v. Ramaswami, C.J. (as his lordship then was) was a party to the said judgment.

(17) The High Court of Madras in J. H. Irani and others vs. T. S. P. L. P. Chidambaram Chettiar and others, (1962) Ii Mad LJ 221 (s) observed with reference to the word 'building' as defined in the Rent Act of that State and construing a number of authorities that a 'building' was an enclosure not necessarily of brick or stone work but even of mud walls, but it must be covered in by a roof. This authority has laid down the existence of a roof as an almost indispensable test. This was referred to in two other authorities of the High Court of Madras in M. P. S. Palouriappa Chettiar and others vs. VE. ST. Variayan Chettiar (1963) I Mad L J 130 and Palaniappa Chettiar vs. Bahu Sahib (1964) I MadL J 110 but these two later authorities probably went beyond the dictum laid down in J. H. Irani's case. 'The matter came up for consideration before the Supreme Court directly in A. R. Salay Mohamad Sait vs. Jaffer Mohamad Salt's Memorial Dispensary Charity and others (1969) I R C R 322 before J. C. Shah and G. K. Mitter, JJ. and his lordship, Mr. Justice Mitter, speaking for the Court, held that the two later decisions of the Madras High Court in following J. H. Irani's case did not arrive at the correct conclusion. The authority of f. H. Irani's case has, thereforee, not been shaken by the decision of the Supreme Court. The facts in the case before the Supreme Court were that the landlord had let out only the vacant land while the tenant erected some structures which had to be removed by the tenant for they would become the property of the landlord at the end of the term, but the structures really belonged to the tenant. The Supreme Court, thereforee, held that what the landlord had let out was not any building within the meaning of the Rent Act. In this connection, the Supreme Court laid down the following test, namely :-

'In order to determine whether the lease is of a vacant land or of a building within the meaning of the Act of 1960 we must take into account both the form and the substance of the transaction. In form the transactions in suit were leases of vacant land. The substance of the transactions points to the same conclusion.'

(18) The counsel for the appellant has, however, strongly relied on another judgment of the Supreme Court in Ghanshiam Dos vs. Debi Prasad, : [1966]3SCR875 . This was a case of leasing out of a brick kiln as defined in section 9 of the U.P. Zamindari abolition and Land Reforms Act 1 of 1951. Where the brick kiln in dispute did not have any walls or any proof, as found by the Courts below, and the same consisted of a mere pit dug in the ground with bricks by its side, the Court held that the same did not constitute a building within the meaning of the relevant provision. In this judgment, Ramaswami J. speaking for the Court reproduced definition of 'building' in the Websters New International Dictionary as follows :-

'That which is built specif: (a) as now generally used a fabric or edifice, framed or constructed, designed to stand more or less permanently and covering a space of land for use as a dwelling, store house, factory, shelter for beasts or some other useful purpose. Building in this sense does not include a mere wall, fence, monument, boarding or similar structure though designed for permanent use where it stands, nor a steamboat ship or other vessel of navigation.'

(19) After referring to the definition, their lordships observed 'from this definition it does not appear that the existence of a roof is always necessary for a structure to be regarded as a building. Residential buildings ordinarily have roofs but there can be a non-residential building for which a roof is not necessary. For example a large stadium or an open-air swimming pool would be a building as it is a permanent structure and designed for a useful purpose.'

(20) The learned counsel for the parties here cited authorities under- various other special Acts. I am of the view that the definition section of a particular statute is confined as a general rule to explain and define the meaning of words used in that statute and it cannot be extended to define those words used in other statutes since the words are not necessarily used in the same sense in each statute and each statute is designed to meet a distinct and particular purpose and so words used in it must be read and interpreted in the context of that statute in aid of its object and purpose. The object of the Delhi Rent Control Act is to protect the tenants against eviction from the premises situated within the municipal limits described in First Schedule to the Act. The Act has been enacted to alleviate the suffering of the people on account of acute shortage of accommodation and it, thereforee, applies to buildings or part of the buildings which are let for a useful purpose. The Act does not apply to vacant lands Reference in this connection may be made to clause(a) of section 2 of a sister Act known as Delhi Tenants (Temporary Protection) Act 97 of 1956 in which it is provided that premises means any premises as defined in the Rent Act and includes any vacant ground. The definition of premises as given in clause (g) of section 2 of the Delhi Rent Control Act 38 of 1952 is the same as given in clause (j) of section 2 of the present Rent Act. The provisions of this Act, thereforee, show the legislative intent that vacant ground is not covered by the definition of premises contained in the Rent Act. The question to be answered, however, is whether a vacant land containing boundary walls all around, but without a roof, would be a vacant land or would constitute premises.

(21) As a result of the analysis of the provisions of the Rent Act and study of the authorities mentioned above, my conclusions on the subject are summerised as follows

1. Whether or not a property is a building is primarily a question of fact depending upon the circumstances of each case and upon the form and substance of each transaction of letting. Still certain guidelines may broadly be adopted. 2. Premises is a building or part of a building which is separately let out for use. A building consists of a piece of land with superstructures which are habitable and are let out for a useful purpose like residence, commercial use or other normal and reasonable purposes. 3. A vacant piece of land, if appertaining to and forming part of a building, is included within the definition of 'premises' while an open and vacant land not so appertaining cannot constitute a building and is outside the connotation. 4. The land bounded by walls and covered by a roof and capable of being used for a useful purpose is normally a building. 5. The existence of boundary walls is not decisive of the matter as they may be erected to demarcate the boundaries of the land or to support a shed or a roof or for any other purpose. 6. A roofless structure would ordinarily not constitute a building unless it is established as a fact that the same was capable of being and was intended to be used as such without a roof, for example, an open air restaurant, a swimming pool etc. 7. The erection of superstructures by a tenant after the letting is irrelevant for determination of the question as to whether what had been let out by the landlord constitutes premises.

(22) On the facts of the present case and the state of the pleadings and evidence on record, the Courts below have concurrently come to the conclusion that the property in suit let by the landlord-respondents to the tenant-appellant was an open land and not premises as defined in the Rent Act and I affirm the said finding. As a result, I hold that the matter falls outside the jurisdiction of the Controller and consequently the jurisdiction of the civil Court is, under section 50 of the Act, not barred. No infirmity can, thereforee, be found with the decrees of the Court below. Consequently the appeal fails and is dismissed, but under the circumstances of the case, without costs


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