I agree with the view taken by the learned judges of the appellate Bench of the Small Cause Court that the premises appurtenant to the rented premises are certainly part of the premises themselves let out to the tenant. In my opinion, the contrary view will lead to certain anomalies, for example, the tenant who is occupying the premises, is using the passage for going and if a decree is passed against him for delivery of possession of a room which he is occupying he may as well occupy the passage itself and say that the Rent Court has no jurisdiction to evict him, which situation, I do not think, is contemplated by the legislature while using the expression "erection of permanent structure on the premises". In my opinion, in order to give a realistic meaning to the provisions, it will have to be held that any structures or additions made to adjoining space will have to be treated to have been made as a part of the premises appurtenant to the tenanted premises or as a part of space which is necessary for beneficial enjoyment of rented premises. I, therefore, think that the contention of the learned Counsel for the petitioner in this behalf is not well founded.
IN THE HIGH COURT OF BOMBAY
Writ Petn. No. 1157 of 1981
Decided On: 15.11.1984
Shridhar Govind Natu Vs. Ankush Krishnaji Sawant
Hon'ble Judges/Coram:
S.J. Deshpande, J.
Citation: 33 Bom RC 1986
1. This petition was heard by me at length in order that the appellate order reversing the judgment and decree passed by the trial Court was seriously challenged by the learned Counsel for the petitioner, who is original defendant in the suit, on the ground that there was non-application of mind to the evidence on record and there was no legal admissible evidence to arrive at the finding. I have heard both the learned Counsel in detail for a long time. I am satisfied after going through the evidence, which was read out to me as if (this is) the First Appeal, that the finding recorded by the appellate Court seems to be not manifestly erroneous of otherwise perverse to attract the jurisdiction of this Court under Article 227 of the Constitution of India.
2. Briefly stated, this was a simple case filed by the landlord against his tenant under the provisions of the Bombay Rents, Hotel and Lodging House Rents Control Act, 1947 (hereinafter referred to as the 'Bombay Rent Act') for recovery of possession of the rented premises i.e. under S. 13(1)(g) of the Bombay Rent Act. The suit was filed on 7th Aug, 1967. The suit notice seems to have been given on 16th Nov. 1966, which was replied by the defendant on 6th Dec. 1966, to the original tenant who is the petitioner before me. It appears that the trial Court framed issues on 22nd Nov. 1974. Recording of evidence was started on 30th Jan. 1975 and concluded on 6th June 1975.
3. The plaintiff averred in his plaint that he along with his family members is residing in Kubal Nivas. He is the owner of the building named "Krishna Kripa" and it is in this building that the disputed premises room No.7 on the first floor is situated. This room No. 7 has got front and back side galleries. Defendant is a monthly tenant of the suit premises. Rent of the suit premises is Rs. 26.63, exclusive of all permitted increases, per month. It was stated by the plaintiff that he requires the suit premises reasonably and bona fide for personal occupation of his family members. The present premises which he is occupying are inadequate as his family is so large. It was also stated by the plaintiff that the defendant has unlawfully sublet the suit premises. It was further stated that the defendant has unauthorisedly constructed bath room in the rear side gallery of the suit premises and obtained a water tap therein without the permission of the plaintiff. It is averred that both the common galleries are unauthorisedly enclosed. Hence the suit was filed after giving notice as the defendant refused to vacate the same.
4. The defendant-tenant filed his written statement resisting the suit and denying all the grounds. It was also contended in the written statement that even if the claim for reasonable and bona fide requirement of the plaintiff is proved, greater hardship would be caused to the defendant. He denied that he had made unauthorised constructions and it was prayed that the suit of the plaintiff be dismissed.
5. Learned trial Judge framed as many as 7 issues, which arises out of the pleadings. Both the parties led evidence and after considering the whole evidence except the issue of hardship which was a point at issue No. 4 as framed the learned trial Judge, he negatived all the contention of the plaintiff and dismissed his suit by his judgment and decree dated 18th June 1975.
6. It may be stated here that on behalf of the plaintiff two witnesses were examined and the plaintiff himself chose to give evidence on oath. One of the witness is Advocate Shri Dhumale who was examined to prove the contents of the letter marked Exh. D., which was sent on 6th December 1966 on behalf of the defendant as reply to the notice given by the plaintiff on 16th Nov. 1966. Next witness examined by the plaintiff was an Architect who has to show the nature of the premises and extent of the premises in occupation of the plaintiff in Kubal Niwas.
7. The defendant also examined himself and one more witness examined by him was the Rationing Inspector for proving changes in the entries in the ration card.
8. The Judgment of the trial Court does not show that the learned trial Judge has discussed the above evidence in detail, although there is reference to the witness. On the basis of the evidence as stated above, the learned trial Judge was not impressed by the same and dismissed the suit of the plaintiff.
9. The plaintiff filed an appeal before the appellate Court and the appellate Court has reversed the decree of the trial Court by its judgment dt. 27th Feb, 1981 and held that the plaintiff has proved his bona fide and reasonable requirement of the suit premises. The appellate Court also held that the plaintiff has proved agreeing with the trial Court that greater hardship will be caused to the plaintiff if the decree is denied. It has further held disagreeing with the trial Court that the alleged structures which are found constructed on the premises are of permanent nature and they are part of the appurtenants and so they are unauthorised as being made without the permission of the plaintiff. While appreciating the issue of bona fide requirement as stated in para 11 of the appellate Court's judgment although there is no reference to the finding about subletting the appellate Court seems to have proceeded on the basis that there appears to be intrinsic evidence that in the year 1971 during the pendency of the suit, the premises were let out to one Sudhakar Kulkarni under an agreement D/- 6th Nov. 1971, who was residing in the suit premises. The appellate Court has observed that the defendant himself was not in occupation of the suit premises at least from 1966 till 1971 as he had gone a broad. Assuming for a while that the defendant was in occupation of the suit premises from 1966 till 1971, on the basis of the above finding the appellate Court has reversed the decree of the trial Court. It is this judgment of the appellate Bench, which is being challenged in this Writ Petition by the defendant under Art. 227 of the Constitution.
10. Before I proceed to examine the merits of the judgement of the appellate court with fear of repetition I granted sufficient indulgence to the learned counsel appearing for the petitioner in reading the whole evidence afresh and after gearing the evidence which was read out to me in detail, I am satisfied that the findings made by the learned appellate court are based on proper legal evidence and the are unassailable as no error can be pointed out either in the approach of the case or in examining the evidence on record. However, in fairness, I may point out that the learned Counsel for the petitioner, in fact, first of all stated that the learned appellate Bench did not consider the positive evidence of the plaintiff at all. It was contended that the plaintiff's evidence is silent about the actual area in his occupation and non-user of the premises. As the plaintiff failed to give details of inadequate or insufficient accommodation, mere statement of the plaintiff that he requires the suit premises for his personal occupation should not be accepted by this Court as the evidence of the plaintiff in this behalf is itself insufficient. A short answer to these questions are in the domain of the facts. The Courts below who had an occasion to read the evidence and appreciate the same have taken cumulative effect of the evidence and it may be that in clear words the plaintiff may not have stated his contention regarding the requirement of the premises. However, in this case I find that the plaintiff has stated in his evidence specifically that he requires the suit premises for his family members. At page 34 of the paper book of his evidence, the plaintiff has specifically stated that "the premises in my occupation at present are not sufficient for my occupation for my above mentioned family". On the date when the plaintiff was giving evidence in the Court, the marriages of his three sons were not performed. His oldest son and his daughter-in-law were also residing with the plaintiff's family. It is further stated as under
"We are put to difficulties an account of such large family requiring to live in the present premises. Therefore, I want the suit premises for our family"
If this evidence of the plaintiff in examination-in-Chief is taken into account, it is impossible to say that the plaintiff was silent about disclosing his need. So the contention of the learned Counsel for the petitioner, irrespective of the fact whether this has been conclusively cross-examined, that there is no such statement made by the plaintiff does not appear to be correct. The whole attack by the learned Counsel on the evidence of the plaintiff on the basis that the plaintiff did not lead any positive evidence about showing his requirement of the premises therefore is not well founded and it would involve further examination of further factual aspect and therefore I do not, purpose to deal with this argument advanced before me by the learned Counsel for the Petitioner. Suffice it to say that in view of the statement of the plaintiff, which was also not cross-examined it is quite clear that the plaintiff did show the inadequate or insufficient nature of the present premises in which he resides along with his family members and also the present need to occupy the suit premises having regard to the large number of members of his family which he has got to support. The plaintiff has disclosed that he has got a double room in Krishna Kripa building in which the suit premises are situated. Further he has admitted in his evidence that he is using the same double room partially or by intervals. Having regard to the large number of members of family, he requires the suit premises.
11. If the plaintiff came with a case before the Court disclosing the actual extent of premises which are in his occupation and shows also other premises which is using and also deposes that he has got large number of members of the family who are required to be accommodated, I fail to understand why this evidence be treated as insufficient or inadequate, unless it is shown in the cross-examination that his statements are quite false or at least exaggerated.
12. The next attack of the learned Counsel for the petitioner is on the evidence of the plaintiff did not show actual extend of the area. I fail to understand how this argument is this writ petition. However, I have gone through the evidence of the Architect (P.W. 3). He is also cross-examined by the defendant. The plan was before the Court. The evidenced of the plaintiff was also before the Court and defendant chose to file one sketch in order to show the exact nature of the area. However, he did not examine or cross-examine the Architect in order to show that the extent of area occupied by the plaintiff in Kubal Niwas and double room in Krishna Kripa was large and was so adequate and sufficient and that the case of the plaintiff for requirement of the suit premises is not justified. It is disclosed from the evidence that Kubal Niwas premises in which the plaintiff resides are on 4th floor. There is some terrace and on that terrace some water tank is there and it is open terrace. What was said by the defendant to be important was that the open terrace, which can be used by the plaintiff, might be in occupation of or user by the plaintiff as it should be inferred that there was one door between the plaintiff premises and the terrace and that door was only in the possession of the plaintiff, so that the whole terrace as if in occupation of the plaintiff is used by the plaintiff. Assuming for a while this inference is possible, I do not see how this may be sufficient to show that it is in fact a part of the premises for residence of the family members of the plaintiff. Partial user of the open premises i.e. terrace in possession of the very tenant cannot be taken into account to show that the family members can also reside therein. In order to show that the accommodation which the plaintiff has got as sufficient for residence for his family, further evidence must be led by the defendant who wants to displace the case of the plaintiff that the accommodation is such which is sufficient for residence for the family members or any dependents of particular members. In the absence of such evidence led by the defendant , it is not possible to accept the argument of the learned Counsel for the petitioner that the plaintiff has failed to prove the actual area occupied by him as being inadequate. I therefore, reject this argument of the learned Counsel for the petitioner.
13. The third submission which was made by the learned Counsel for the petitioner related to the fact of greater hardship. The point of greater hardship is answered by both the courts below in favour of the plaintiff although I permitted the learned Counsel for the petitioner to argue on this point. I think that this point is concluded by the concurrent finding of the courts below that greater hardship will be caused to the plaintiff rather than the defendant in case eviction decree is not passed. As it is a finding of fact, I do not think that this finding is vitiated by any competent error. The only fact which was emphasised by the learned Counsel for the petitioner was that one of the sons of the defendant in actually occupying the suit premises along with the persons who has been inducted by him. It is in evidence that this son Satish sometime goes and stays in the suit premises and it was stated that if Satish is in user of the suit premises this fact was ignored by the appellate Bench though the defendant will be deprived of the user. I am afraid that this contention is without any substance.
14. Defendant, when his evidence was recorded in the lower Court, was of 61 years, His son Satish was for some time going and staying there as at the material time he as student and for that purpose he was going there. Such partial user in the special facts of this case will not be sufficient to displace the finding made by the lower Courts. Here is a case of the defendant that he has got job and he is employee in Garware Nylons at Pimpri (Pune) and further is residing in his own house at Pune. If he is service at Pune and is also residing in his own house at Pune, it would be unreasonable to infer and difficult to hold that the suit premises were used by him or his son as if he has no other premises. Taking an overall view and the evidence in this regard, I find that the findings made by the Courts below in regard to greater hardship is quite justified and it cannot be challenged as being perverse or vitiated by any non consideration of vital circumstances.
15. The next contention of the learned Counsel related to the ground of permanent structures and additions. It was pointed out by the learned Counsel for the petitioner that first of all the alleged structures were not made by his client at all and secondly the structures are not permanent and the acts of making these structures and additions are not contrary to Section 108 of the Transfer of Property Act. I do not want to go into the merits of this contention at all. Suffice it to say that the learned trial Judge has found that the structures were of permanent nature. It is a question of fact in each case which will depend on the nature of the structure and degree of permanent situation in which the structures are made and also the way in which they are put, which according to me must be decisive of the permanent structure. Merely because they apparently show a simple partition, it cannot be assumed that they are permanent or temporary. It will be seen from the evidence on record that in the rear side gallery of the suit premises, a bath room was constructed and (the petitioner) put up windows with glass panes on all three sides of the front gallery and put up a door in the gallery for entrance. In this particular case I think that the structures or additions made by the Petitioner can be said to be of permanent nature. Even if I take contrary view and hold in favour of the defendant-petitioner that the structures or additions are not permanent. I still find that the decree of the appellate Court can be sustained on the earlier two grounds. However, as the learned Advocate for the petitioner has argued this point before me, I purpose has argued this point before me, I purpose to deal with it. The structures are made in 1966 according to the plaintiff. The learned Counsel for the petitioner attempted to explain that his client was not responsible to make these structures at all. In the written statement there is no specific denial that the defendant-petitioner has himself not made these structures. In written statement, the reply of the defendant was only to the effect that he denies that he has made many unauthorised construction and he has denied the whole allegation regarding this aspect. I am afraid that in view of the pleadings, it would be difficult to say that the defendant has specifically alleged that he has not made any structures. However, the petitioner's counsel pressed very much this fact that the lower Courts have committed apparent error in appreciating the fact that the defendant was responsible for making structures. In this particular case, I fail to understand how the defendant can be allowed to raise such an extreme case when in fact the issue which was framed by the trial Court itself is very clear. Issue No. 5 raised by the trial Court which was answered in favour of the defendant recites as follows :
"Does plaintiff prove that the defendant has without his consent in writing erected permanent structures on the suit premises?"
The trial Court which dealing with this issue has specifically observed that having regard to such constructions of the bath room, the enclosure of the galleries etc. it is sufficiently clear that all the said constructions are of a permanent nature. It was further observed by the trial Court that the bath rooms has certainly created an additional burden in the gallery and it can be said that the same in harmful to the structure of the building. The trial court has further observed that the case of the defendant that he has not constructed any structures or made additions is disproved by his own admission given in the reply dt. 6th Dec. 1966 given to the notice of the plaintiff. Much argument was made on the contents of the letter (Exh. D) and even the learned Counsel for the petitioners wanted to invite my attention to the provisions of S. 60 of the Indian Evidence Act to refresh my memory as to what evidence is to be produced by the parties. I have refrained from further comments on this aspect. It is obvious that when the defendant replied to the notice stating through his advocate that the constructions were made with express permission of the plaintiff. It is implicit that even if the constructions are made by him, they are made with the permission of the plaintiff. This admission was stated to be explained in the evidence and I am afraid that any discussion either on the admission or on its worth and its validity by way of explanation cannot fall for consideration or scrutiny under Art. 227 of the Construction of India. Admission itself is a good piece of evidence and if the Court below has taken a view that this admission made by the (sic) in Exh. D proves that the defendant is responsible for unauthorised constructions and additions. I fail to understand how this point will be available for reconsideration in a writ petition. The contention of the learned Counsel only involves giving second look to the evidence in a different way. It does nor relate to mis-reading of evidence or any defect of vital character in considering the evidence. It is impossible to accept the argument of the learned Counsel for the Petitioner that the defendant is not the person who has made these constructions or additions to the structures.
16. It was contended by the learned Counsel for the petitioner that the trial Court was right holding that the structures can additions were not on demised premises and therefore the plaintiff has nor right to claim eviction on the ground. In the options of the trial Court the varandah and gallery were not part of the demised premises being outside that are of the demised premises. It was held by the trial Court that they did not fail within the definition of premises which are let out to the defendant. I am afraid that this view of the trial Court cannot be supported either in law or on facts. If we look to the definition of 'premises' as given in the Rent Act, it states as follows :
"5(8) :- "premises" means -
(a) any land not being used for agricultural purposes.
(b) any building or part of a building let or given on licence separately (other than a farm building) including.
(1) the garden , grounds, garages and out-houses , if any, appurtenant to such building or part of a building,
(1) any furniture supplied by the landlord for use in such buildings or part of a building
(1) any fitting affixed to such building or part of a building for the more beneficial enjoyment thereof, but does not include a room or other accomodation in a hotel or lodging house, " In my opinion, the appellate Court was right in coming to the conclusion that the portions of the building in which these constructions or additions are made were the part of appurtenants of such building let out to the defendant. In this case, a reasonable interpretation of the expression the 'premises' used in S. 13(1)(b) of the Bombay Rent Act will have to be given. Section S. 13(1)(b) of the Act provides as follows :
" 13(1) :- Notwithstanding anything contained in this Act but subject to the provisions of Section 15 and 15A, a landlord shall be entitled to recover possession of any premises if the Court is satisfied.
(a)....................
(b) that the tenant has, without the landlord's consent given in writing, erected on the premises any permanent structure".
The expression on the 'premises' used in Sec. 13(1)(b) of the Rent Act cannot be interpreted without a reference to the definition given in S. 5(8)(I) and (iii) of the Bombay Rent Act, if that definition is taken into account it is found in this case, as a matter of fact, that the portion used by the tenant was for the beneficial enjoyment of his own tenanted premises. The definition which I have above under S. 5(8)(iii) of the Rent Act may kindly be looked at this moment. It states as follows :
(8)i) :- Premises means ....... Any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof".
The words "part of building" used in the said sub-section are very sufficient to show that in this case it may not be necessary to show that such part of the building which is being used by the tenant for more beneficial enjoyment of the tenanted premises, it would be sufficient to attract cl. (iii) of sub-sec. (8) of S. 5 of the Rent Act as quoted above. Taking a realistic view of the matter and giving reasonable meaning to the expression given in the definition, it will have to be inferred that the word 'premises' used in S. 13(1)(b) of the Rent Act cannot be considered in isolation while examining the existence of the structures made by the tenant. If the definition which I have quoted above and the provisions of S. 13(1)(b) of the Bombay Rent Act are considered conjointly, it would be clear that the space used by a tenant can be treated as an appurtenants as provided in the definition given under S. 5(8)(iii) or it can be a part of the building for more beneficial enjoyment as provided in S. 5(8)(iii) of the Bombay Rent Act, It would be reasonable on the part of the landlord to establish that the tenant has constructed such structure and made certain additions not only to the rented premises but to such adjoining small portion of the building with necessarily leads to the beneficial enjoyment of the tenanted premises. I therefore think that the words used in S. 13(1)(b) of the Bombay Rent Act i.e. "on he premises" may not be restricted to the demised premises. This expression is borrowed from Transfer of Property Act in cases of leases. The expression on the 'premises' used in S. 13(1)(b) of the Bombay Rent Act should mean the premises let out to any tenant in addition to the appurtenant and such other space of which he is taking beneficial enjoyment for the proper use of the rented premises. Such short space either of the gallery or verandah being used by the tenant must strictly be said to be demised premises let out to him. Still it will be open for the plaintiff in a particular case to prove that the structure made on such nearby or adjoining premises appurtenant to the tenanted, premises as being used as part of the beneficial enjoyment of the tenanted room itself, can be said to be the structure on the premises itself within the meaning of S. 13(1)(b) of the Bombay Rent Act . It will depend on the nature of the premises, secondly, the extent of the actual user of the area beyond the rented area and thirdly, the actual beneficial enjoyment of that area as a part of user of the rented premises. In this particular case as the rented premises are on the first floor, it is quite clear that the front gallery and rear gallery which were being used by the defendant-tenant can be said to be used for the purpose of beneficial enjoyment and if in a particular case on facts the Court finds that according to the extent of the user of such premises, the tenant uses the same for more beneficial enjoyment, it will be open for the Court to consider the additions and permanent structures made on such a space, although such space may not strictly be part of the premises let out to the tenant under the terms both galleries which were used by the defendant-tenant were part of the premises as being used as such they were necessary for the beneficial use also or for beneficial enjoyment of the premises let out to him. In this view of the matter, the submission made by the learned Counsel for the petitioner is rejected.
17. I agree with the view taken by the learned judges of the appellate Bench of the Small Cause Court that the premises appurtenant to the rented premises are certainly part of the premises themselves let out to the tenant. In my opinion, the contrary view will lead to certain anomalies, for example, the tenant who is occupying the premises, is using the passage for going and if a decree is passed against him for delivery of possession of a room which he is occupying he may as well occupy the passage itself and say that the Rent Court has no jurisdiction to evict him, which situation, I do not think, is contemplated by the legislature while using the expression "erection of permanent structure on the premises". In my opinion, in order to give a realistic meaning to the provisions, it will have to be held that any structures or additions made to adjoining space will have to be treated to have been made as a part of the premises appurtenant to the tenanted premises or as a part of space which is necessary for beneficial enjoyment of rented premises. I, therefore, think that the contention of the learned Counsel for the petitioner in this behalf is not well founded.
18. No other point was urged before me. It was pointed out by the learned counsel for the plaintiff-respondent herein that some other person also has been inducted during the pendency of the petition in this court and if the decree is passed it should be directed that the decree should be executed against any person who is found in possession. It appears from the record that when expeditious hearing of this petition was sought, there is a note made by this court in August 1984 that one Kuwalekar was inducted in the suit premises. Therefore/ this petition was kept for expeditious hearing.
19. In the result, I direct that the Executing Court will dispossess any person found on the premises and give actual possession to the plaintiff who has been fighting his case from 1967. It is also said that some arrears of rent are deposited by the defendant-tenant herein in the court below. If the arrears are deposited the plaintiff-respondent will be entitled to withdraw the same. With these directions, the impugned judgement and decree passed by the appellate court is confirmed. The rule is discharged with costs.
20. Order accordingly
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