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Jekisondas Maganlal and ors. Vs. Abdul Rehman Haji Ahmedbhai and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. Nos. 480 and 481 of 1972
Judge
Reported inAIR1975Guj205
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 13(1); Transfer of Property Act, 1882 - Sections 105
AppellantJekisondas Maganlal and ors.
RespondentAbdul Rehman Haji Ahmedbhai and ors.
Appellant Advocate N.R. Oza, Adv.
Respondent Advocate A.H. Mehta and; I.C. Bhatt, Advs.
Cases ReferredNagindas Ramdas v. Dalpatram Iccharam.
Excerpt:
(i) tenancy - possession - section 13 (1) of bombay rents, hotel and lodging house rates control act, 1947 and section 105 of transfer of property act, 1882 - suit for recovery of possession - facts revealed defendants constructed two rooms in suit premises without obtaining written permission as such committed waste in suit premises - such independent structures not covered by term 'such other alterations' - two rooms considered to be permanent structure under section 13 (1) (b) - held, defendant liable to be evicted under section 13 (1) (b) for having erected permanent structure. (ii) eviction - whether splitting up of tenancy amongst co-tenants ground of eviction - in case defendant split up tenancy inter se for more beneficial enjoyment of suit premises it is no ground of eviction.....order1. the plaintiffs filed regular civil suit no. 265 of 1966 against the defendants for recovering possession of the suit premises on the grounds that the defendants nos. 1, 2 and 3, the original tenants, had unlawfully sub-let a part of the suit premises to the defendants nos. 4, 5 and 6, that the defendants nos. 1. 2 and 3 had constructed permanent structures in the suit premises without obtaining the permission of the plaintiffs in writing, that the defendants had committed waste in the suit premises, that the plaintiffs require the-suit premises reasonably and bona fide for their occupation and that the defendants nos. 1, 2 and 3 had split up the original tenancy in two parts. the plaintiffs also pleaded that the defendants had been denying the plaintiffs title and have not been.....
Judgment:
ORDER

1. The Plaintiffs filed Regular Civil Suit No. 265 of 1966 against the defendants for recovering possession of the suit premises on the grounds that the defendants Nos. 1, 2 and 3, the original tenants, had unlawfully sub-let a part of the suit premises to the defendants Nos. 4, 5 and 6, that the defendants Nos. 1. 2 and 3 had constructed Permanent structures in the suit Premises without obtaining the permission of the plaintiffs in writing, that the defendants had committed waste in the suit premises, that the Plaintiffs require the-suit Premises reasonably and bona fide for their occupation and that the defendants Nos. 1, 2 and 3 had split up the original tenancy in two parts. The Plaintiffs also pleaded that the defendants had been denying the plaintiffs title and have not been observing the terms of the tenancy.

2. The defendants in their turn challenged the validity of the statutory notice served by the plaintiffs upon the defendants Nos. 1, 2 and 3.

3. The learned Trial Judge held that the statutory notice served by the Plaintiffs upon the defendants Nos. 1, 2 and 3 was valid. So far as unlawful subletting was concerned he negatived the plaintiffs' allegation in that behalf. He, however, upheld the plaintiffs' contention that the defendants had constructed permanent structures in the suit premises without obtaining the plaintiffs' permission in writing. He negatived the plaintiffs' grounds of eviction that the defendants had committed waste in the suit premises, that the plaintiffs require reasonably and bona fide the suit premises for their occupation and that the defendants have committed breach of the term is of the tenancy. Next he found that the plaintiffs had not proved that the defendants had committed waste in the suit premises. In view of his finding on the plaintiffs' ground -of eviction relating to the construction of permanent structures by the defendants in the suit premises, he passed in favour of the plaintiffs decree for possession.

4. The defendants Nos. 1, 2 and 6 challenged the decree in Civil Appeal No. 189 of 1969 which they filed before the District Court. The defendants Nos. 3, 4 and 5 challenged that decree in Civil Appeal No. 194 of 1969 which they filed in the District Court. Both the appeals were heard together by the learned appellate Judge. He allowed both the appeals, set aside- the decree for possession Passed by the learned Trial Judge and dismissed the plaintiffs' suit. The findings recorded by the learned Appellate Judge are as follows:- The defendants have not constructed a permanent structures in the suit premises. There is no unlawful sub-letting of a part of the suit premises. The defendants have not committed any waste in the suit Premises. The plaintiffs do not reasonably and bona fide require the suit Premises for their occupation. The defendants had not denied the plaintiffs' title nor have they committed any breach of the terms of the tenancy.

5. Those two appellate decrees are challenged by the plaintiffs in these two Civil Revision Applications. Since they arise out of one suit and require examination of common contentions in light of the evidence on record and in light of the findings recorded by the Courts below. I decide them by a common judgment.

6. Mr. Oza, appearing for the plaintiffs, has raised before me the following six contentions.

1. The defendants Nos. 1, 2 and 3 have unlawfully sub-let a part of the suit premises or assigned their interest in the suit premises to the defendants Nos. 4, 5 and 6.

2. The defendants have constructed permanent structures in the suit premises.

3. The defendants have committed waste in the suit premises.

4. The Plaintiffs require the suit premises reasonably and bona fide for their occupation.

5. The defendants have committed breach of the terms of the tenancy.

6. The defendants have split up the tenancy and rendered themselves liable to be evicted from the suit premises.

39. The third aspect of the case which Mr. Mehta has raised before me is that if the defendants Nos. 1, 2 and 3 are found to be statutory tenants, they have not sub-let a part of the premises to anyone., He has tried to base his argument on the deed of dissolution, Ex. 205. He has advanced two arguments, According to him, if the case Pleaded by the plaintiffs is accepted, it will mean that the defendants Nos. 1, 2 and 3 created sub-tenancy in their favour. It can never be done. Relying upon the decision of this Court in Mehta Jagjivan Vanechand v. Doshi Vanechand Harakchand, 12 Guj LR 487 = (AIR 1972 Guj 67) he has argued that sub-letting postulates two distinct persons - the head tenant and the sub-tenant. Their rights and obligations are different. One cannot be one's own sub-tenant. The proposition laid down in that decision is, in my opinion, eminently correct. No exception can be taken to the principle which Mr. Mehta has tried to state to me. Sub-letting indeed means that the premises which are in the possession of a 'person as a lessee are sub-let to a third Demon. Unless there are two distinct persons who can be described as a head-tenant and a sub-tenant, there cannot be sub-letting. He has also tried to argue that the deed of dissolution, Ex. 205 does not show that if any more Persons were brought into Ahmed and Co. and if the business of Ahmed and Co., was later on divided amongst these persons, there was any sub-letting. Sub-letting or sub-tenancy, according to him, must mean transfer of exclusive possession from a head-tenant to a sub-tenant either of the whole premises in the occupation of the tenant or a part thereof. This principle which Mr. Mehta has tried to enunciate before me also cannot be controverted.

xx xx xx xx

41. The first argument which Mr. Mehta has raised is that whereas tenancy rights in respect of Premises other than the suit premises have been expressly dealt with and partitioned as evidenced by the recitals contained in Paragraph 4 and paragraph 8, the tenancy rights in respect of the suit premises have not been dealt with- at all. What has been dealt with in paragraph 3 of the deed of dissolution, Ex. 205, is only the possession and enjoyment of the suit premises. The difference in language which Mr. Mehta has tried to point out to me indeed is there. It cannot be gainsaid. So far as the possession is concerned. whereas the defendant No. 3 has been given exclusive possession of half, the Portion by the defendants Nos. 1 and 2, the defendant No. 3 has given exclusive possession of other half to the defendants Nos. 1, 2 and some other persons whose names have been stated in -paragraph 3 of the deed of dissolution, Ex. 205. On these Premises Mr. Mehta has sought to argue that none has given exclusive possession of any part of the suit premises. Secondly, he has also argued that so far as one Dart of the suit premises is concerned, the defendant No. 3 who is one of the co-tenants Is in possession. So far as another part of the suit premises is concerned, the defendants Nos. 1 and 2 who are co-tenants are in possession thereof. What he has tried to argue is that the defendants other than the defendants Nos. 1, 2 and 3 have been merely admitted to partnership business. There is no Parting of posses sion in their favour by the defendants Nos. 1. 2 and 3. On these premises he has asked me to apply the principle laid down by Mr. Justice M. P. Thakkar in the case of Mehta Jagjivan Vanechand (supra). As held by the Supreme Court in the case of Anand Nivas Private Ltd. (supra) there is no transferable interest which a statutory tenant has and which he can sub-let. Since- I have held that the defendants Nos. 1, 2 and 3 have been the statutory tenants of the plaintiffs, the question of their transferring any estate or interest in the suit premises to anyone else, Properly so-called, does not arise. Al statutory tenant forfeits his right to the protection of the statute if he -parts with possession and the Person in whose favour he Parts with possession cannot claim any rights in respect thereof. It is in light of that Principle that I have to judge the recitals contained in paragraphs 3 and 7 of the deed of dissolution, Ex. 205. Those recitals which I have reproduced above leave no doubt in my mind that for valuable consideration specified in paragraph 7 of the deed of dissolution, Ex. 205. the defendant No. 3 had retained Possession only of half the area of the suit premises and the defendants Nos, 1 and 2 and certain other Persons had got Possession of the remaining half. If it, was a purely inter se arrangement between the defendants Nos. 1. 2 and 3, it could have pro bably been said with some justification that what they had done was merely a method of working out the best terms of enjoying their Premises. It is the introduction of some persons other than the defendants Nos, 1, 2 and 3 which has created the difficulty. When the recitals contained in paragraphs 3 and 7 are read together, it is quite clear that the defendant No. 3, one of the statutorv co-tenants, had parted with possession of half the area in favour of his two other statutory co-tenants and some other Persons. The defendants Nos. 1, 2 and 3 as statutory co-tenants were jointly in possession of the entire suit premises. That position has been altered for valuable consideration. The defendants Nos. 1, 2 and 3 and some other Persons have divided the suit premises and retained to each of themselves possession of the half and parted with the rest. The persons other than the defendants Nos. 1, 2 and 3 are amongst those who constituted one section of persons. It cannot be said that they have parted with-possession of that Dart which is now in -possession of 'the defendant No. 3 because they did not have any possession at all. Really speaking therefore the defendants Nos. 1 and 2 have parted with Possession of half the area in favour of their statutory co-tenant (defendant No. 3). That does not seem to be objectionable in any manner. However, what the defendant No. 3 has done under this deed of dissolution requires consideration, As a statutory co-tenant he had been in Possession of the entire premises. He has retained half of the suit Premises and Parted with Possession of half in favour of persons amongst whom there are strangers, viz., Mohmed Sidiq Abdul Rehman and Mohmed Kasim Abdul Rehman. They are not the statutory cotenants of the plaintiffs and this arrangement has been done for valuable consideration. The possession, and enjoyment of each of the two parts of the suit premises have been given over to each of the two groups independently and exclusively. Judging the recitals contained in paragraphs 3 and 7 of the deed of dissolution, Ex. 205, 1 have no doubt in my mind that the arrangement evidenced by them has led to parting of possession of a part of the suit Premises by the defendant No. 3 in favour of two strangers -Mohmed Sidiq Abdul Rehman and Mohmed Kasim Abdul Rehman. To this arrangement the defendants Nos. 1 and 2 are -parties. In the light of the Principle laid down by the Supreme Court in the case of Anand Nivas Private Ltd., (1964) 5 Guj LR 111 = (AIR 1965 SC 414). 1 must hold that the defendants Nos. 1. 2 and 3 have forfeited the protection of the statute and have therefore, rendered themselves liable to be evicted from the suit premises.

42. The next aspect of the case which Mr. Mehta has raised is that there is neither unlawful assignment nor unlawful transfer within the meaning of Section 13(1)(e) of the Bombay Rent Act '. Section 13(1)(e) reads as under:-

'Notwithstanding anything contained in this Act. but subject to the provisions of Section 15. a landlord shall be entitled to recover Possession of any Premises if the Court is satisfied that the tenant has, since .. the coming into operation of this Act, unlawfully sub-let the whole or part of the premises or assigned or transferred in any other manner his interest therein'.

Founding his argument on this clause he has submitted that whereas Section 13 renders unlawful sub-letting of the whole or a -part of the premises, it renders an assignment or transfer of interest in the suit premises unlawful if -such an assignment or transfer is of the entire interest and not a Dart of it. He has further argued that it is nobody's case here that the defendants Nos' 1. 2 and 3 have assigned or transferred their entire interest in the suit premises to third persons. Both the submissions made by Mr. Mehta appear to me to be correct. On facts there is no assignment or transfer of the entire interest by the defendants Nos. 1, 2 -and 3 in the suit premises to, anyone else. So far as the construction of Section 13(1)(e) is concerned, on carefully scanning the language of that clause, I find that the expression 'unlawfully sub-let the whole or part of the premises' is one single expression and does not govern the expression 'assigned or transferred in any other manner his interest therein'. If clause (e) of sub-section (1) of Section 13 is broken into three parts for the purpose of analysis and understanding it will read as under:

(a) that the tenant has un1awfully sub-let the whole or part of the premises;

(b) that the tenant has assigned in any other manner his interest therein:

(c) that the tenant has transferred in any other manner his interest therein,

The careful scanning of the language of Section 13(1)(e) leads to the only conclusion that whereas unlawful sub-letting can be in respect of the whole or, a part of the Premises, there cannot be unlawful assignment or transfer of a part of the interest in the premises, The argument advanced by Mr. Mehta, therefore, that in this case there is neither unlawful assignment nor unlawful transfer because there is no assignment or transfer of the entire interest by the defendants Nos. 1. 2 and 3 in the suit premises to anyone else is correct and must be up held. The learned Appellate Judge has taken a contrast view. He has held that by virtue of the compromise decree. Ex. 214, a contractual tenancy was created in favour of the defendants Nos. 1, 2 and 3 on the same terms as were incorporated in the rent note. Ext. 105, I have carefully analysed the compromise decree in all its aspects, I am, therefore, unable to uphold the finding recorded by the learned Appellate Judge that the compromise decree, Ex. 214, read with the rent note, Ex. 105 has created in favour of the defendants Nos. 1, 2 and 3 the contractual tenancy. I am. therefore. Unable to uphold his finding that by virtue of the clause contained in the rent note, Ex. 105, the defendants Nos. 1, 2 and 3 were entitled to sublet the suit premises. The second reason which has weighed with the learned Appellate Judge is that Ahmed & Co, had seven Partners at the time of the compromise decree. His finding is based upon the partnership deed, Ex, 169 He has not considered the question whether the admission of new Partners to a business binds the landlords who have demised their premises only in favour of some. His finding therefore, suffers from a serious infirmitv and it cannot be upheld. The third reason which has weighed with the learned Appellate Judge is that the deed of dissolution, Ex. 205, brought about division of assets and liabilities inter se only amongst the partners. To say this is to simplify the problem. I have tried to analyse in details the recitals contained in the deed of dissolution, Ex. 205, and for the reasons stated by me I am unable to uphold the finding recorded by the learned Appellate Judge. I, therefore, set aside his finding that the contractual tenancy was created by the compromise decree, Ex. 214 read with the rent note. Ex. 105, in favour of the defendants.

43-49. xx xx xx

50. The next allegation which has been made by the Plaintiffs is that the original partition wall which was made of iron sheets fixed in wooden frames and partitioning the ground floor of the suit premises in two unequal divisions has been removed and the defendants have constructed a partition wall with bricks and cement not at the same Place where the wall of iron sheets existed but at a different place. In other words, what the defendants have done is firstly to remove the partition wall of iron sheets in wooden frames and to construct a wall of bricks and cement at a different place by which the suit premises which were otherwise divided into two unequal divisions have now been divided into two equal halves. Section 13(1)(b) of the Bombay Rent Act Provides that a landlord shall be entitled to recover possession of any premises if the Court is satisfied that the tenant has, with out the landlord's consent given in writing, erected on the premises any permanent structure. Explanation to Section 13(1)(e) is very material for the present purpose. It reads as under:-

'For the purposes of clause (b) no permanent structure shall be deemed to be erected on any premises merely by reason of the construction of a partition wall, door or lattice-work or the filling of kitchen-stand or such other alterations made in the Premises as can be removed without serious damage to the Premises.' In light of what the Explanation provides the mere construction of a partition wall cannot be regarded as a permanent structure within the meaning of Section 13(1)(b) so as to render the defendants liable to be evicted from the suit -premises. Mr. Mehta has tried to argue that the construction of a partition wall, whatever may be its character. is excluded by the explanation from the -purview of Section 13(1)(b). The expression 'as can be removed without serious damage to the premises' does not govern the construction. of a partition wall. A partition wall door, lattice-work and the filling of kitchen-stand are specifically excluded by the Explanation from the mischief of the expression 'permanent structure'. The Explanation then uses the residuary expression 'such other alterations'. It is a residuary category. The question, therefore, which has been raised by Mr. Mehta is whether the expression has can be removed without serious damage to the Premises' governs only the expression 'such other alterations' or governs the construction of a partition wall, door, lattice-work, the filling of kitchen-stand as well as 'such other alterations', Now, the construction of a Partition wall in an existing structure is an alteration. The construction of a door in an existing structure is also an alteration. Constructing a lattice-work in an existing structure is also an alteration. Filling of kitchen-stand in an existing structure is also an alteration. Having specifically mentioned these four types of alterations the legislature has used the residuary expression 'such other alterations'. Though ex facie it appears that the word as used in expression as can be removed without serious damage to the premises' appears to be going with the word 'such' used in the expression 'such other alterations', it is difficult to say that it does not apply to the four specified categories of alterations mentioned in the Explanation. To take such a view is to hold that even if a partition wall or door or lattice-work or the filling of kitchen-stand which has been constructed cannot be removed without causing to the premises, they fall under the exempted categories not rendering the tenant liable to be evicted from the suit premises. It appears to me that the tenant by virtue of the provisions contained in the Explanation to Section 13(1)(b) is given liberty by the legislature to make any of the specified attractions in the Premises in his occupation and any other kinds of al-1crations which he thinks fit provided they are alteration is, but it does not appear to me that the legislature has given him liberty to do all those things or carry out all those alterations and to damage the suit premises without incurring the liability of being evicted therefrom. Therefore. the expression 'as can be removed without serious damage to the premises' governs not only the residuary Expression 'such other alterations' but also governs the four other specified categories of alterations which the Explanation names. It is merely cause the legislature has used the expression 'such other alterations' for the -purpose of widening the scope of the Explanation that it has used the expression 'as' so as to be harmonious with the word 'such' used in the expression 'such other alterations'. it is merely the form of language. That form of language used by the legislature does not lead to the conclusion that the concept of removal without serious damage applies only to the residuary category of alterations and not to a partition wall, door, lattice-work or the filling of kitchen-stand.

51. Mr. Oza has invited my attention to the deposition of the defendant No. 1 which has some bearing on the aspect of damage likely to be caused to the suit premises if the partition wall is removed. In his deposition, Ex. 166, Haji Abdul Rehman Haii Ahmedbhai states as follows. He is defendant No. 1.

'The load of the Galas is on the middle wall. If that wall is removed the round beams will be hanging. There are three to four such round beams. These round beams are of the total length of both the shops. ThEy are old beams. They get support of the wall in the middle. If that wall is removed the ceiling will come down and the Property will be seriously damaged.

52. Mr. Mehta has invited mv attention to the deposition of the plaintiffs' witness Naranbhai Vanmalibhai Patel. It is at Ex. 162. His evidence does not throw any light on this aspect of the case. What Mr. Mehta has tried to argue is that if the removal of the partition wall which the defendants have constructed in the middle of the suit Premises is such as its removal will seriously damage the suit premises. the -plaintiffs would not have missed an opportunity to ask their expert witness Naranbhai a question in order to elicit from him the correct state of affairs. The fact, however, remains that the plaintiffs' witness Naranbhai does not throw any light on the question. I have, therefore, to judge the question raised by Mr. Oza in the light of what the defendant No. 1 has stated in his deposition. He is not an expert and Mr. Mehta is quite right in advancing that argument before me. Now, before the Present partition wall was constructed there was a partition wall at some other place in the suit premises. From what the defendant No. 1 has stated in his evidence (I have reproduced it above) it is quite clear that the ceiling of the ground floor will certain1y be affected if there is no partition wall to support it. If there was a partition wall in the -past which supported the ceiling of the ground floor and if it has been removed and another has been constructed by the defendants at some other Place, the question is not whether its removal will cause serious damage to the suit Premises but whether the removal of the present partition wall and reconstruction thereof at the place where it originally stood would cause serious damage o the suit premises. There is no evidence on record on this aspect. Mere removal of the present partition wall may damage the suit Premises seriously. Similarly, if it the old Partition wall which the defendants have removed had been removed without constructing the Present partition wall, probably the ceiling of the ground floor of the suit premises would have been seriously damaged. Therefore, in my opinion. the question which must be posed is not one which Mr. Oza has posed before in. The correct question which must be posed is this:- If the present Partition wall is removed and if the partition wall is simultaneously constructed at the Place where the original wall was situate, would it cause serious ,damage to the suit premises There is no evidence on record to answer this question. Therefore, I am unable to up hold the argument raised by Mr. Oza in that behalf. By constructing the present Partition wall what the defendants have done is to remove the site of the Partition wall a few feet away from its original site and to construct it with cement and bricks in Place of the original one which was made of iron sheets fixed in wooden frames. Without entering into the technical aspect of this question, it appears to me that the present partitioned wall of bricks and cement will support the first floor much better and more strongly than the original Partition wall; made of iron-sheets fixed in wooden frames, Therefore, though, in my opinion, it is a permanent structure which the defendants have constructed in the suit premises, the plaintiffs have not proved that its removal and reconstrucition of the partition wall at its original site will cause any serious damage to alter suit premises ' Therefore. so far as to ground is concerned, it does not answer the requirements of Section 13(1)(b) ; I lit, in my opinion, also does not answer the requirements of waste. To construct a partition wall cannot be said to cause waste in the premises let out to a tenant ; It is intended to protect a -property and tot make it more serviceable.

53-58. xx xx xx

59. The next question which arises for my consideration is whether these two new rooms which have been constructed by the defendant's are permanent structures within the meaning of Section 13(1)(b) of the Bombay Rent Act. The test to determine whether a particular structure is a permanent structure or not has been laid down by a Division Bench of this Court in Khureshi Ibrahim Ahmed v. Ahmed Haji, (1965) 6 Guj LR 27 = (AIR 1965 Guj 152). What is required to be shown is that the structure must have an element of permanence in it. It must be intended to be a lasting structure. Whether it is a lasting structure or not will depend on the nature of the structure. The Permanent or temporary character of the structure is to be determined having regard to the nature of the structure and the nature of the materials used in the making of the structure and the manner in which the structure is created and not on the basis of how long the tenant intended to make use of the structure. As a. matter of fact the nature of the structure 'itself would reflect whether the tenant 'intended that it should exist and be available for use for a temporary period or for an indefinite period of time. This Court after having laid down the aforesaid principle has taken the view that the legislature has provided an objective test and into a subjective test. Once it is shown that the structure erected by the tenant is of such a nature as to be lasting in ~duration - lasting of course according to ordinary notions of mankind the tenant cannot come forward and say that he erected it for use for only a temporary period and it is, therefore, a temporary structure. This decision has been followed by Mr. Justice M. U. Shah in Ishwarbhai v. Parshottam, (1967) 8 Guj LR 665. It has been laid down by the learned Judge in that decision that removability cannot per se be a test in the matter, It is also not necessary that a particular type of material, must have been used to give the structure an element of permanance or to make it of such a nature as to be of a lasting nature. The expression 'permanent structure' in Section 13(1)(b) of the Bombay Rent Control Act has been used to denote some work which is not of a temporary nature. The character of the structure - whether it is permanent or not is a mixed question of fact and law and the intention of the party who puts up the structure is a factor to be considered in determining the character of the structure in question and the nature of the construction, the nature of the material used. the manner in which the structure is erected and the Purpose thereof are also material factors in arriving at a proper conclusion in the matter.

60. In Ramji Virji v. Kadarbhai Esufali, 13 Guj LR 81= (AIR 1973 Guj 110) Mr. Justice J. B. Mehta has dealt with the question. He has laid down that the nature of the structure is be found by looking to the nature of the construction and by applying objective test. The intention of the tenant is also a relevant factor. The nature of construction, materials used, the mode of annexation, the situation and the removability of the structure have to be taken into account together to determine whether a particular structure is a permanent ~structure or not, He has also observed that the test of easy removability has received statutory recognition.

61. Bearing in mind these principles I must find out whether the two rooms which the defendants have constructed are permanent structures within the meaning of Section 13(1)(b). Indisputably they have been constructed with bricks and mortar. Such a structure is not easily removable. Such a structure is intended by, a tenant to be of lasting duration for his use. Such a structure cannot be called a temporary structure as distinguished from a Permanent structure. I am, therefore, of the opinion that the two rooms which the defendants have constructed on the terrace of the suit premises are permanent structures.

62.The next question which arises for my consideration is whether they are saved by the Explanation to Section 13(1)(b). Rooms do not fall in any of the four specified structures mentioned in the Explanation. Therefore, I am required to consider whether the two rooms which the defendants have added on the terrace of the suit premises are saved by the residuary expression 'such other alterations'. In my opinion. alterations are alterations and not independent additions. The Explanation does not contemplate an independent addition to an existing structure. A Partition wall is an alteration and not an independent structure. A door is an alteration and not an independent structure. A lattice work is an alteration and not an independent structure. A kitchen-stand is an alteration and not an independent structure. it is in that context that the legislature has used the expression 'such other alterations'. Therefore, what the legislature, by enacting the Explanation, has saved from the mischief of Section 13(1)(b) are alterations, properly so called, and not independent additions. That is the view which I have expressed in Civil Revn. Appln. No, 947 of 1971 decided by me on 26-6-1974 (Guj). For the reasons stated in that judgment and for the reasons stated in this judgment I am of the opinion that the two rooms which are independent structures are not 'such other alterations' within the meaning of Explanation to Section 13(1)(b). Since they are. not saved by the principal part of the Explanation it is not necessary for me to consider whether they can or cannot be reinvade without any serious damage to the premises. In that view of the matter, The defendants are liable to be evicted from the suit premises under Section 13(1)(b), they having a erected Permanent structures in the shape two rooms on the terrace of the suit premises.

63. xx xx xx

64. The sixth and last contention which Mr. Oza has raised is that the de4'endants are liable to be evicted from the suit premises for having split up the tenancy. He has tried to urge it as an independent around of eviction. I have dealt with this aspect of the case under the head of unlawful sub-let extremely difficult for me to upload this ground as an independent ground of eviction. It has been held by the Supreme Court in Nagindas Ramdas v. Dalpatram Iccharam. AIR 1974 SC 471 that it is not open to the Rent Court to pass a decree for Possession either in invictim or with the consent of the parties on a around which is de hors the Act or ultra vires the Act. The Supreme Court has further held that a prohibitory mandate to the Rent Court that it shall not travel beyond the statutory grounds mentioned in Sections 12 and 13 and to the parties that they shall not contract out of those statutory grounds is inherent in the public Policy built into the statute. If the defendants split up the tenancy inter se amongst themselves for the -purpose of more beneficial enjoyment of the suit premises, they cannot be evicted because that is not a ground of eviction under the Bombay Rent Act. Secondly, where there are two or more co-tenants the splitting up of the tenancy only amongst themselves for the purpose of beneficial enjoyment of a property cannot be said to be objectionable in principle because such an inter se arrangement amongst themselves Only is not binding upon the landlord. So far as the landlord is concerned, all the cotenants are his tenants in respect of the entire suit Premises. How they enjoy the suit premises is a matter for the co-tenants to decide. Even after the cotenants split up their tenancy for more beneficial enjoyment of the suit premises if anyone of them in respect of a -particular -premises occupied by him commits an act by which he renders himself liable to be evicted from the suit premises, indeed all will be evicted from the entire suit premises, Such an arrangement arrived at between the co-tenants for more beneficial enjoyment of the Property is not a matter to which the landlord can take an exception, The question will assume different aspect when they introduce strangers to tenancy rights, or to Possession of the premises. I have dealt with that aspect in the foregoing paragraphs of this judgment. Mere splitting up of tenancy amongst the co-tenants is, in my opinion, no ground of eviction at all. Relying upon the principle laid down by the Supreme Court in the aforesaid decision in the case of Nagindas Ramdas (supra) I reject the last contention raised by Mr. Oza in support of the plaintiff's case.

65. xx xx xx

66. Rule made absolute.


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