B.K. Mehta, J.
1. A short but interesting question arises as to whether lease of the superstructure put up by the lessee on the open plot of land amounts to sub-letting of the land and exposes the original lessee of the land to the consequences of eviction under Section 13(1)(a) of the Bombay Rents, Hotels and Lodging House Rates Control Act, 1947 (hereinafter referred to as 'the Bombay Rent Act'), as in force in this State. The question arises in the following circumstances :--
2. In the suit filed by the original lessors of the land being Regular Civil Suit No. 219 of 1974 on the file of Civil Judge (J. D.) Sankheda, the plaintiff-landlord averred that open plot of land of S. No. 798/2 admeasuring about 20 gunthas, more particularly described in the schedule to the plaint, and situate oil the station road in Bahadurpur town of Sankheda taluka in Baroda district was let out originally to one Mohanbhai at the annual rent of Rs. 625/- for a period of one year prior to 1962, though it is not clear from the record precisely as to in which year this lease was affected. On expiry of the term of the lease, Mohanbhai became a statutory tenant. On his demise, it is so averred in the plaint, the original defendant No. 1 the petitioner herein, who was the son of said Mohanbhai, had become the statutory tenant. It has been alleged in the plaint that the petitioner-defendant had sublet, transferred or assigned his interest in the demised land to defendants Nos. 2, 3 and 4, which he was not entitled to under the law and, therefore, the plaintiff-landlord prayed for a decree of eviction.
3. The suit was resisted by the defendant-petitioner, inter alia, on the ground that originally this land was demised to his brother Dalsukhbhai Mohanbhai, who died before 15 years, He had put up some Kutcha structure on the said land and was carrying on his business on the said land as a tenant. After his death, the plaintiff-landlord gave open land, save and except that covered with the structure put up by said Dalsukhbhai, on lease to the petitioner-defendant No. 1. Since the deceased Dalsukhabhai left no legal heirs behind him, the petitioner-defendant No. 1 inherited the said structure and became the owner thereof. In other words, the petitioner pleaded that the lease granted by the plaintiff-landlord was for open land only and he was the owner of the structure which he inherited from deceased Dalsukhbhai and, therefore, there was no subletting, assignment or transfer of the land demised by the lease granted by the plaintiff-landlord to him in the year 1962. He denied that defendants Nos. 2, 3 and 4 had put up the structure or the shed as alleged by the plaintiff. The petitioner-defendant No. 1 also contended that the plaintiff-landlord had intentionally omitted to specify the date of the cause of action because the petitioner-defendant No. 1 and his deceased brother had become tenants of the open land before the Bombay Rent Act was made applicable to the area within the town limits of Bahadurpura and, therefore, the suit was liable to be dismissed ex facie. He also pleaded that the suit was bad for want of notice. Defendants Nos. 2, 3 and 4, who are alleged subtenants, have filed their respective written statements. Defendant No. 2 in his written statement denied that there was any subletting, assignment or transfer of the land leased to defendant No. 1. Defendant No. 3, however, supported the plaintiff admitting that he was a sub-tenant of the suit land for which he was paying annual rent of Rs. 300/- at the rate of Rs. 25/- per month to defendant No. 1. Defendant No. 4 made a limited submission in his written statement starting that he was doing his business of cloth in the shop let out to him by defendant No. 1 for which he was recovering monthly rent of Rs. 25/- per month from him, and that he is a tenant of the petitioner-defendant No. 1.
4. On the above pleadings, the learned civil Judge raised necessary issues and on consideration of the evidence, documentary as well as oral, upheld the contention of the petitioner-defendent No. 1 that he was the owner of the superstructure existing on the suit land. In spite of this finding, the learned Civil Judge held on construction of the rent note executed by the petitioner-defendant No. 1 Ex. 56, that he has failed to prove that only the open land was let out to him. He, therefore, by necessary implications held that the superstructure was also leased out by the plaintiff-landlord to the petitioner-defendant No. 1 and, therefore, there was subletting of the premises in favour of defendants Nos. 2, 3 and 4. In that view of the matter, the learned Civil Judge granted the decree of eviction against an the defendants.
5. Surprisingly, however, defendants Nos. 1, 2 and 3, carried the matter in appeal, though defendant No. 3 had supported the plaintiff and clearly admitted in his written statement that he was a sub-tenant of the suit land and the plaintiff was entitled to claim relief as prayed for. The learned Assistant Judge agreed with the trial Court arid found that defendant No. 1 had rendered himself liable to eviction on the ground of subletting to defendants Nos. 2, 3 and 4, since the plaintiff has satisfactorily proved that defendants Nos. 2 to 4 are sub-tenants of the suit land as inducted by defendant No. 1 subsequently in the year 1964 and, therefore, rendered themselves liable to suffer the decree of eviction. It is this judgment and decree of the learned Assistant Judge which is the subject matter of this revision before me.
6. At the time of hearing of this revision application. Miss D. T. Shah, learned Advocate, appearing for the petitioner-defendant No. 1 urged the following two contentions:
(1) In the first place, the Courts below have failed completely to appreciate the pleadings of the parties and particularly the case of the plaintiff as averred in the plaint which was to the effect that the plaintiff had demised only the open plot of land and his case was that defendant No. 1 had sublet, assigned or transferred his interest in the demised land to defendants Nos. 2, 3 and 4. It was, therefore, not open to the Courts below to investigate and decide as to whether the structure put up by the petitioner-defendant's predecessor in interest and inherited by him was of the ownership of the plaintiff or not.
(2) In view of the pleadings of the parties, and particularly in view of the finding of the trial Court that the superstructure on the demised land belonged to defendant No. 1, the findings of the Courts below that there was a subletting, assignment or transfer of interest of defendant No. 1 in the land to defendants Nos. 2, 3 and 4, who were the tenants in the structure of the land, was clearly against law, and, therefore liable to be reversed and consequently the decree for eviction should be set aside.
7. I am of the opinion that on both these contentions, the petitioner must succeed in this revision application. It is settled position in law that when a lessee-builder of the land lets out the structure erected by him on the demised land to a tenant without anything more he does not thereby let and for that matter sublet his right or interest in the land also but is presumed to grant merely a right to support the land for the superstructure (vide: Vinayak Gopal v. Laxman Kashinath, (1956) 58 Bom LR 592 : (AIR 1957 Bom 941 and Sunderlal Chhotalal Chokshi v. Kantaben Sunderlal Mehta Civil Revision Application No. 989/62 decided on Nov. 16, 1966 (Coram: J. b. Mehta, J.) reported in (1966-67) 4 Guj LT 155). It is pertinent to remind as to what the Division Bench, consisting of Gajendragadkar and Gokhale JJ. has held in Vinayak Gopal's case (supra). The question before the Division Bench was whether a building lease in respect of an open plot of land can be within the purview of Section 6(1) of the Bombay Rent Act because it cannot be used for residence unless it is built upon. The Division Bench, speaking through Gajendragadkar J., held having regard to the material terms in the lease in question before the Court and the purpose which the premises had been let out, and on consideration of all or relevant facts before the Bench, that open plots of land were held to be within the purview of Section 6(1) of the Bombay Rent Act. A contention was urged in course of the hearing 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 Section 15 of the Bombay Rent Act. Rejecting this contention, the Division Bench held as under.
'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 Section 15, and their sub-tenancies would fall within the mischief of Section 15 of the Act. We are not impressed by this argument. Section 15 no doubt enjoins upon the tenant not to sub-let or transfer 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 Section 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.'
8. In Dossibai v. Khemchand, AIR 1966 SC 1939 the question before the Supreme Court was when a lessee takes lease of open land for the purpose of constructing on it buildings intended to be used for residence or for business is this 'letting for residence', or 'letting for business' In that context, the Supreme Court considered as to whether Section 15 would stand in the way of the lessee of the land letting out the buildings constructed by him on such land, and approved the decision of the Bombay High Court in Vinayak Gopal's case (supra). The Supreme Court has expressed its approval in the following terms :
11. It is unnecessary for us to decide whether if there is no contract to the contrary, Section 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 ILR (1956) Bom. 827 : (AIR 1957 Bom 94) where the very question which is now before us arose for decision, that the bar of Section 15 will operate only in the way 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.
12. In that case 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 Section 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 for construction of residential buildings and so the conclusion reached by the Bombay High Court in Vinayak Gopal's case (ILR (1956) Bom 827) : (AIR 1957 Bom 94) is, in our opinion, correct.'
9. A similar question arose before S. B. Mehta J. (as he then was) in Civil Revision Application No. 989/62 (supra). The learned single Judge considered the terms of the lease of the land and found that what was let was only the open land and the superstructures were constructed by the deceased lessee. The learned single Judge thereafter posed a narrow question which arose before him as to if the lease is for Open land can there be subletting of the lessee's right or interest in the land when the lessee lets out the superstructures put up by him on the demised land Answering the question in the negative against the landlord, the learned Single Judge held as under:
'........... .If the subletting was only of the open land and not of the superstructure which remained the property only of the tenant, there would be no question of subletting the premises let or transferring or assigning the same or of charging by the tenant for those premises anything in excess of the standard rent. In view of the aforesaid decision of their Lordships of the Supreme Court, both the Courts were right in holding that as in the present case what was let was open land and not the superstructure. The letting of the four rooms which were owned by the tenant would not amount to any subletting, or transferring of the interest in the land itself..................
Mr. Majumdar, however, argued that once the superstructure was erected on the land, on the principle that what was fixed to the land would go with the land, the entire premises must be considered as let to the tenant at the time of the subsequent lease. It is always a question of interpretation of the lease in question as to what is let and this contention was in terms negatived even in the aforesaid decision of the Supreme Court and, therefore, this argument cannot be accepted.........'
The only perfinent question which requires to be considered and answered by me in this revision application is that what was the property which was leased by the plaintiff to defendant No. 1. On the plain reading of the plaint, the case averred was that the plaintiff had let out the open land more particularly described in paragraph 6 of the plaint, to the father of petitioner-defendant No. 1, and that the said land was let out to defendants Nos. 2 to 4, who have put up their structures and where defendants Nos. 2 to 4 are carrying on their business of running their hotels and cloth shop. In the relief clause, it has been prayed for the possession after removal of the structures. It cannot, therefore, be gainsaid that what was leased by the plaintiff to defendant No. 1 was the open land only, and this view is fortified by the relief which the plaintiff has asked for since otherwise he would not have prayed for removal of the structure, if what was leased to the petitioner-defendant No. 1 was the land with the structures. As a matter of fact, in the written statement of the petitioner-defendant No. 1 it was unequivocally contended that there was no question of subletting transfer or assignment of any right or interest of the lessee in the land since what has been let out to defendants Nos. 2 to 4 was the structure of the shops put up by the predecessor to interest of defendant No. 1. The trial Court has raised the question for its determination at issue No. 5 that is it proved that defendant No. 1 is the owner of the superstructure existing on the suit land? The learned Civil Judge has answered this question in the affirmative. In para 20 while dealing with the said issue No. 5, this is what the learned Civil Judge has said :--
'20. Issue No. 5 :-- The defendant No. 1 has contended that he is the owner of the superstructure constructed on the suit land. In support of his case he produced the demand notice of the panchayat union which is at Exs. 85, 86 and 88 to 95. The plaintiff in his deposition has also admitted that the defendant No. 1 has constructed superstructure consisting of three rooms and he has also admitted in his cross-examination that none of the superstructure on that suit land belongs to him. In Ex. 55 produced by the plaintiff, it is also shown that superstructure belongs to Suthar Dalsukhbhai Mohanbhai. Under these circumstances, I hold that defendant No. 1 has proved that he is the owner of superstructure and hence I decide this issue accordingly.'
Surprisingly, however, the learned Civil Judge in course of the discussion of issues Nos. 2 and 3 which related to the questions as to whether defendant No. 1 had sublet, assigned and/or transferred the suit land to defendants Nos. 2 to 4 illegally and in clear breach of the terms of tenancy, and thereby defendant No. 1 has rendered himself liable for eviction, rejected the contention urged on behalf of the defendant No. 1 that it was only the open land which was rented out and not the superstructure. In the opinion of the learned Civil Judge reliance sought to be placed on the decision of S. B. Mehta, J. in Civil Revision Application No. 989/62 (supra) was not well founded and, therefore, not applicable on the facts of the case, because of his earlier finding that defendant No. 1 has failed to prove that only the open land was rented out to him. This is quite contrary to what he has held on issue No. 5. Apart from this inconsistency, the learned Civil Judge, and for that matter, the learned Assistant Judge failed to appreciate the true effect of the averments in the plaint and the case of defendant No. 1. It should be emphasised at the cost of repetition that the plaintiff has prayed in the suit for vacant and quiet possession of the land in question after removal of the structure. It is not even faintly suggested in the plaint that what was demised to the petitioner-defendant No. 1 was the land with the structure. On the contrary, defendant No. 1 has raised a plea that there was no question of subletting, assigning or transferring since what had been let to defendants Nos. 2 to 4 was the structure which had been put up by the predecessor in interest of defendant No. 1. The learned Civil Judge has raised that issue and found in favour of defendant No. 1. In that view of the averments in the plaint, the clear admission of the power of attorney-holder of the plaintiff, who was examined on his behalf, the conclusion is inescapable that the structure belonged to defendant No. 1. If that is the correct finding, which indeed is in my opinion, the inference is inescapable that there was no letting out of any right or interest in the land, nO material has been placed on behalf of the plaintiff to substantiate this allegation that defendant No. 1 has sublet his right or interest in the demised land to defendants Nos. 2 to 4. Mr. Patel, appearing on behalf of the plaintiff-respondent No. 1 invited my attention to the evidence of the petitioner-defendant No. 1 where in the course of the cross-examination, he has stated that it was true that the land which was used by defendants Nos. 2 to 4 was in their possession. I am afraid that the context of the statement does not warrant the inference which the learned Advocate for respondent No. 1-plaintiff wants me to draw, namely, that it was admitted by the petitioner-defendant No. 1 that he had sublet his right or interest in the land to defendants Nos. 2 to 4. The reason of my inability to draw the inference is obvious. The paragraph in the cross-examination where the aforesaid statement of the defendant is to be found reads as under.-
'My father had kept the suit land first. My father had kept the open land and land beneath the Malan on rent. It is true that my father had executed a rent note. Now I say that no rent note is executed. The land beneath Malan is of mine. I have produced the receipts of Panchayat to show my ownership. I have got no other evidence except this. The land beneath the Malan is kept from the plaintiff but I do not know how it was kept. The land beneath Malan is not mine. It is true that it belongs to the plaintiff. It is true that I have got possession of the same premises which were in possession of my father, which belong to Mahendrabhai. Whatever we have constructed on the _said land is 'Malan'. It is true that land which is used by defendants Nos. 2 to 4 is in their possession. It is true that I have to collect only the rent of the said property.'
The learned Assistant Judge has been impressed by this hesitating and contradictory statement of defendant No. 1 in the said paragraph about the ownership of the said land. In my opinion, however, these contradictions, if at all they are really so, would not be conclusive on the question as to of whose ownership the structure was. As stated above, in view of the pleadings, in view of the clear admissions of the plaintiff, in view of the documentary evidence in the nature of extracts from the property register of the Panchayat, and in view of the consistent statements of defendant No. 1, it cannot be held otherwise as sought to be urged by the learned advocate for the respondent No. 1-plaintiff that the ownership of the superstructure was of the plaintiff As a matter of fact, it was not the case of the plaintiff at any stage of the suit either in the plaint or at the time of the evidence. In that view of the matter, therefore, the findings of both the Courts below that the petitioner-defendant No. 1 was guilty of subletting or transferring his right or interest in the land demised to him by the plaintiff must be held to be legally erroneous and, therefore, the judgments of both the Courts below are against the law and the decree of eviction passed by the trial Court and confirmed in appeal is liable to be reversed.
10. The result is that this revision application is allowed and the suit of the plaintiff is dismissed. There should be no order as to costs having regard to the facts and circumstances of this case.