1) The trial Court after considering the evidence on record held
that construction was carried out by the defendant and thereafter the
agreement dated 10.02.2005 at Exhibit 63 was entered into. After the
construction was made by the defendant, rights were conferred on him by
the plaintiff and the defendant was paying rent of Rs.400/per
month. It
was further held by considering the evidence on record that the defendant
was tenant of the open plot alongwith the structure standing thereon.
Thus, the provisions of the said Act were applicable and after finding that
the plaintiff had made out ground for eviction as pleaded, the suit came
to be decreed.
2) Referring to the agreement at Exhibit 63, it was submitted that on a plain
reading of the same, it was clear that on the entire plot admeasuring
1000 square feet, the defendant had erected construction to the extent of
10 Feet X 10 Feet at his expense and on the area admeasuring 6 Feet X
10 Feet a column alongwith plinth was constructed by the defendant.
The plaintiff agreed that whenever the constructed portion would be sold,
it would be only to the defendant and not anybody else. The property
was thus given to the defendant on monthly rent of Rs.400/.
3) On a plain reading of the aforesaid agreement it was clear that
the same was entered into after the construction in question was carried
out by the defendant and therefore the suit property was 'premises' as
defined under the said Act. The trial Court rightly held the suit to be
governed by the provisions of the Maharashtra Rent Control Act, 1999
and had rightly decreed the same.
4) The observations in Kamla Devi (supra) to the effect that if a plot
with a structure is let out, the same would fall within the meaning of the
term “premises” but if an open plot is given without any structure, it
would not fall within the meaning of the term “premises” support the case
of the plaintiff. The evidence on record indicates the open plot along
with structure being let out to the defendant as per Exhibit 63. For same
reason, the ratio of the decision in Ram Sarup Gupta (supra) does not
assist the case of the defendant.
5) It is thus held that the appellate Court erred in holding that it
5) It is thus held that the appellate Court erred in holding that it
was only the open plot that was given on lease to the defendant and
hence the provisions of the said Act were not applicable. Instead, it is
held that portion of the open plot alongwith structure standing thereon
had been given to the defendant at monthly rent of Rs.400/.
The subject
matter of the suit was premises within the meaning of Section 7(9) of the
said Act. The suit was therefore, maintainable and adjudication on merits
was necessary.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CIVIL REVISION APPLICATION No. 51/2018
Shaikh Wasim Shaikh Ismail, Vs Mohammad Faiyyaz Noor Mohammad,
CORAM : A.S. CHANDURKAR, J.
DATED: 02 TH NOVEMBER, 2018
The Civil Revision Application is ADMITTED and heard finally
with the consent of the learned counsel for the parties.
2. This civil revision application has been filed by the original
plaintiff who is aggrieved by the judgment of the appellate Court in
Regular Civil Appeal No.3 of 2017 whereby the said appeal has been
allowed and the suit filed by the applicant herein seeking eviction of the
nonapplicant
has been dismissed.
3. As per the plaint averments, it is the case of the applicant
that the suit property admeasures 400 square feet alongwith
constructions standing thereon. The said constructions are a shop
admeasuring about 10 Feet X 10 Feet and a room admeasuring 8 Feet X
8 Feet. According to the plaintiff, he is the owner of Plot No.59 which
admeasures 1000 square feet. The nonapplicant
had filed Special Civil
Suit No.78 of 2008 which was a suit for declaration that the nonapplicant
had a right to purchase the suit property from the present
plaintiff on the basis of an agreement dated 10.02.2005. It was pleaded
that in that suit it was held that the nonapplicant
was a tenant of the suit
property and he was not liable to be dispossessed without following the
due process of law. Rent payable was Rs.400/per
month. The nonapplicant
was in arrears of rent and taxes from 01.07.2005. The plaintiff
therefore on 16.11.2009 and thereafter on 30.11.2009 issued notices
demanding arrears of rent. The defendant replied to the aforesaid notices
on 25.02.2010 and remitted an amount of Rs.25,100/towards
the claim
as made. As the entire arrears were not cleared and the plaintiff had a
bona fide need of the suit premises, he filed suit for eviction of the
defendant under provisions of Section 15 and 16(1)(g) of the
Maharashtra Rent Control Act, 1999 (for short, 'the said Act').
4. The defendant filed his written statement and raised a plea
that the lease in question was granted for an open plot on which
construction was carried out by the defendant. As the defendant was the
owner of the structure, no decree for eviction could be passed against him
as the structure was not owned by the plaintiff and the suit as filed was
not maintainable. It was also averred that as the lease was for the open
plot, the provisions of the said Act were not applicable.
5. The trial Court after considering the evidence on record held
that construction was carried out by the defendant and thereafter the
agreement dated 10.02.2005 at Exhibit 63 was entered into. After the
construction was made by the defendant, rights were conferred on him by
the plaintiff and the defendant was paying rent of Rs.400/per
month. It
was further held by considering the evidence on record that the defendant
was tenant of the open plot alongwith the structure standing thereon.
Thus, the provisions of the said Act were applicable and after finding that
the plaintiff had made out ground for eviction as pleaded, the suit came
to be decreed. The trial Court also observed that the issue with regard to
irrevocable tenancy of the defendant as sought to be canvassed by the
defendant by relying upon the earlier adjudication in Special Civil Suit
No.78 of 2008 did not amount to resjudicata.
6. The defendant being aggrieved filed an appeal challenging
the decree for eviction. The plaintiff also filed a cross appeal on the
ground that the trial Court failed to pass a decree for arrears of rent
though it was found that the defendant was in arrears of rent. In the
appeal, the plaintiff also filed an application under provisions of Order
XLI Rule 27 of the Code of Civil Procedure, 1908 seeking permission to
place on record documents by way of additional evidence.
7. The appellate Court on reappreciating
the evidence came to
the conclusion that on the basis of the earlier litigation, the plaintiff had
given possession of the open plot to the defendant. Thereafter, the
defendant had made construction and hence on that basis the provisions
of the said Act were not applicable as the dispute related to open land.
The appellate Court further held that on the basis of the license, the
defendant had made the construction which thus became irrevocable and
therefore the suit was liable to be dismissed. Accordingly, the appeal was
allowed and the suit was dismissed holding the same to be not
maintainable under the said Act. Being aggrieved, the original plaintiff
has filed the present civil revision application.
8. Shri D.R. Goenka, learned counsel for the applicant,
submitted that the appellate Court committed a serious error in coming to
the conclusion that the provisions of the said Act were not applicable on
the premise that the open plot had been let out to the defendant.
Referring to the agreement at Exhibit 63, it was submitted that on a plain
reading of the same, it was clear that on the entire plot admeasuring
1000 square feet, the defendant had erected construction to the extent of
10 Feet X 10 Feet at his expense and on the area admeasuring 6 Feet X
10 Feet a column alongwith plinth was constructed by the defendant.
The plaintiff agreed that whenever the constructed portion would be sold,
it would be only to the defendant and not anybody else. The property
was thus given to the defendant on monthly rent of Rs.400/.
He
submitted that in the earlier suit, being Special Civil Suit No.78 of 2008 a
finding had been recorded that the defendant was a tenant of the suit
property. On a plain reading of the aforesaid agreement it was clear that
the same was entered into after the construction in question was carried
out by the defendant and therefore the suit property was 'premises' as
defined under the said Act. The trial Court rightly held the suit to be
governed by the provisions of the Maharashtra Rent Control Act, 1999
and had rightly decreed the same. The finding recorded by the appellate
Court otherwise was after ignoring various admissions of the defendant as
well as pleadings in the suit for specific performance which was
Regular Civil Suit No.460 of 2012. Even in the reply given to the
statutory notice issued by the plaintiff, such plea was not taken. It was
thus submitted that appellate Court proceeded on a wrong premise for
concluding that initially the open plot was given to the defendant who
thereafter erected the construction. It was then submitted that the
defendant never raised a plea that by virtue of such construction the
license had become irrevocable. This point was not urged even before
the trial Court and the appellate Court was not justified in going into that
question in the absence of any pleadings. The learned counsel placed
reliance on the decisions in Ramesh & Others Versus Pandurangrao
Ratnalikar & Others [2007 (3) CLJ 369] and Geetha Varma & Others
Versus V.K. Amminikutty Nambishtathiri Amma & Others [AIR 1995
Kerala 168] in that regard. It was submitted that the observations
made in Special Civil Suit No.78 of 2008 cannot be termed to be
binding on principles of resjudicata
as the aspect of irrevocable license
was not substantially in issue between the parties in that suit. This stand
was also not taken in the reply notice and the appellate Court by
applying wrong principles of law proceeded to hold that the license was
irrevocable. The learned counsel also referred to the decision in Bhaurao
Jagoji Junankar (Junghare) (Since dead) thr. His LRs. Vandana
Moreshwar Korale & Others Versus Geetabai Panjabrao Deshmukh (since
dead) thr. Her LRs. Indubai Bhimrao Deshmukh & Others [2013 (4)
Mh.L.J. 196] in that regard. It was further urged that the defendant
having been permitted by the agreement to carry out construction, the
same would not amount to creation of an irrevocable license on the
basis of leasehold rights with the defendant, same could be terminated by
resorting to the provisions of the said Act. He placed reliance on the
decisions in Chotey Lal Versus Mt.Durga Bai [AIR 1950 Allahabad 661]
and Bombay Suburban Art and Craft Education Society, Mumbai & Another
Versus Govind Gajanan Dabholkar & Others [2015 (4) Mh.L.J. 801] in
that regard. The learned counsel then submitted that the appellate Court
failed to consider the application seeking permission to lead additional
evidence. Similarly, the cross appeal filed by the original plaintiff was
also not decided. It was thus urged that the judgment of the appellate
Court suffered from jurisdictional errors which were liable to be corrected
in exercise of revisional jurisdiction.
9. Shri M.G. Sarda, learned counsel for the nonapplicant,
supported the impugned judgment. At the outset, he submitted by
relying upon the decision in Kalidas Chunilal Patel (Dead) by LRs.
Versus Savitaben & Others [AIR 2016 SC 3053] that the applicant by
raising various grounds based on appreciation of evidence sought to
travel beyond scope of Section 115 of the Code. The same was not
permissible. It was submitted that the appellate Court rightly construed
the agreement at Exhibit 63 while holding that the defendant
had come in possession of the open plot of land. The plaintiff had no
right in the structure as erected and as the lease was of the open plot,
it was rightly held that the provisions of the said Act would not be
applicable. It was submitted that tendering of rent by the defendant
was without prejudice to his rights which was clarified in the reply
notice at Exhibit 92. The license in question had been rightly held to
be irrevocable and reference was made to the provisions of Sections 52
and 60 of the Easements Act, 1882. It was submitted that initially the
right to construct was given to the defendant and thereafter a right
to occupy the constructed portion was given. This resulted in creation
of an irrevocable license in favour of the defendant. It was not
necessary to specifically plead the aspect of irrevocability of the license
as the terms of the agreement at Exhibit 63 were very clear. The
written statement as a whole had to be seen while considering
defence as raised and for said purpose the learned counsel referred to
the decision in Ram Sarup Gupta (Dead) by LRs Versus Bishun
Narain Inter College & Others [AIR 1987 SC 1242]. He also referred
to the decision in Kamla Devi Versus Laxmi Devi [(2000) 5 SCC 646]
to urge that the appellate Court had rightly held that the provisions
of the said Act were not applicable. In the absence of any jurisdictional
error, there was no reason to interfere with the judgment of the appellate
Court.
10. I have heard the learned counsel for the parties at length and
I have also gone through the records of the case. Since there has been
earlier litigation between the parties with regard to the suit property itself
reference to those proceedings would be necessary. Agreement dated
10.02.005 at Exhibit 63 was entered into between the parties. As per that
agreement, the plaintiff was shown to be the owner of Survey No.59
admeasuring 40 Feet X 25 Feet. On the Northern portion thereof, in area
admeasuring 40 Feet X 10 Feet, a construction was standing. This
construction was undertaken by the defendant at his own expense. The
plaintiff agreed that whenever the said construction alongwith the land
would be sold, it would be offered at the market price to the defendant.
That property was given to the defendant as tenant alongwith Rs.400/per
month. The defendant had filed Regular Civil Suit No.250 of 2005
seeking a declaration that he had a right to purchase the said property
from the present plaintiff. In that suit, the defendant examined himself
and in his affidavit dated 23.02.2006, he stated as under:“
As per agreement I constructed one room
admeasuring 10 X 14 and shop 10 X 10 and also
developed and done pakka constructions of the column
in the area 8.6 X 10 ft and 7.6 X 10 ft. While
constructing the aforesaid plot I have spent huge amount
and developed the plots. The defendant was agreed to
sell the said plot to me and as per the agreement he also
agreed that he will not sell the aforesaid property to any
other persons except me. It is submitted that, I am in
possession of the aforesaid plot and residing in the suit
property as a tenant.”
In his crossexamination,
he admitted that the agreement at
Exhibit 63 was with regard to granting the shop and room on rent. The
construction was completed prior to 09.02.2005. After considering the
evidence on record, the trial Court in that suit recorded a finding in
paragraph 19 of its judgment that the present defendant was in
possession of area admeasuring 40 Feet X 10 Feet on the Northern side.
Rent payable was Rs.400/per
month. On that basis that suit was
decreed in favour of the present defendant and the plaintiff was
restrained from dispossessing the defendant from the area admeasuring
400 square feet on the Northern side without following the due process of
law. This adjudication has attained finality. It is thus clear that the
defendant had raised a plea that the agreement in question as regards
tenancy related to the shop and the room and it was with regard to 400
square feet on the Northern side.
11. In the present suit, as the agreed rent was not being paid, the
plaintiff demanded the arrears from the defendant by issuing notice on
30.11.2009 which is at Exhibit 25. The arrears were demanded from
01.07.2005 and onwards. In the reply dated 25.02.2010 which is at
Exhibit 92, a part of the arrears was remitted by Demand Draft. In
paragraph 1 of the said reply, it was stated that without admitting the
claim made by the plaintiff in the said notice for Rs.36,355/,
Rs.25,100/was
being sent. Thus, except the quantum of arrears, the defendant did
not deny the specific statements made in the plaintiff's notice that he was
the tenant of area admeasuring 10 Feet X 40 Feet as adjudicated in the
earlier suit. Though it was submitted on behalf of the defendant that the
claim of the plaintiff as made in the notice was not admitted, paragraph 1
of that reply merely refers to not admitting the total claim of arrears of
Rs.36,355/.
As the entire arrears were not paid, the suit came to be
filed. If the written statement of the defendant is seen, a plea has been
raised that there was a license to make construction on the land and the
lease was for the open plot on which the construction was made. The
plaintiff was not the owner of the structure and hence, the suit was not
maintainable. The defendant in his crossexamination
admitted that he
was residing in the suit property as a tenant.
12. The trial Court recorded a finding that the defendant was a
tenant to the extent of 400 square feet. After the construction was made
by the defendant over the suit property, the rights therein were granted
by the plaintiff to him. After considering the contents of the notice
between the parties it was observed that the defendant was the tenant of
the open plot alongwith the structure standing thereon and therefore
provisions of the said Act were applicable. In the light of the findings
recorded in Regular Civil Suit No.250 of 2005, it was held that there was
an intention to create tenancy in favour of the defendant in respect of the
open plot and the structure. The construction was carried out as a tenant
and not as a licensee. On that basis, it was held that the suit property was
“premises” within the meaning of the provisions of Section 7(9) of the
said Act.
13. The appellate Court however has not considered the entire
material available on record before reversing the finding recorded by the
trial Court that the provisions of the said Act were applicable to the case
in hand. The effect of the exchange of notices at Exhibits 25 and 92 has
been ignored. Similarly, the agreement at Exhibit 63 has been construed
as a license being given to the defendant to make the construction. A
perusal of that agreement clearly indicates that possession was given of
the constructed portion by charging the rent of Rs.400/per
month. The
finding recorded in paragraph 31 of the judgment of the appellate Court
that the plaintiff had given possession of the open plot to the defendant is
clearly perverse in the light of the fact that the agreement dated
10.02.2005 at Exhibit 63 states otherwise. By ignoring the evidence of
the defendant recorded earlier as well as the findings recorded in Regular
Civil Suit No.250 of 2005, the appellate Court proceeded to hold that the
open plot was given on rent to the defendant on which he made
construction. The trial Court having given cogent reasons on the basis of
the evidence on record rightly found that the provisions of the said Act
were applicable and the plaintiff had a cause of action to seek eviction of
the defendant.
14. As regards the aspect of irrevocable license, the appellate
Court has misconstrued the observations in Special Civil Suit No.78 of
2008. The said aspect was not a matter directly and substantially in issue
between the parties so as to attract the provisions of Section 11 of the
Code. Moreover, such case was not pleaded in the present proceedings
and as held in Ramesh & Others (supra) such plea cannot be permitted to
be raised without specifically pleading about the same. Moreover, as held
in Geetha Varma & Others (supra), the provisions of Section 60(b) of the
Act of 1882 would operate only if the licensee has acted upon the license
and erected the structures in question. The facts of the present case are
otherwise and the agreement at Exhibit 63 indicates the construction
already made by the defendant. In Chotey Lal (supra), it was held by the
Allahabad High Court that if a licensee executes a work of a permanent
character under a clear understanding that he may be called upon after
certain time to leave the land, he cannot plead such work as a bar against
his eviction in the suit filed by the plaintiff.
The appellate Court misconstrued the ratio of the decision in
Bombay Suburban Art and Craft Education Society, Mumbai & Another
(supra) while nonsuiting
the plaintiff. It has been observed therein that
a lessor can grant permission to put up a construction by imposing
conditions thereon. It would not amount to creation of an irrevocable
license. The observations in Kamla Devi (supra) to the effect that if a plot
with a structure is let out, the same would fall within the meaning of the
term “premises” but if an open plot is given without any structure, it
would not fall within the meaning of the term “premises” support the case
of the plaintiff. The evidence on record indicates the open plot along
with structure being let out to the defendant as per Exhibit 63. For same
reason, the ratio of the decision in Ram Sarup Gupta (supra) does not
assist the case of the defendant.
15. It is also seen that the appellate Court while deciding the
appeal failed to take into consideration the application that was moved by
the original plaintiff under provisions of Order XLI Rule 27 of the Code.
Similarly, the cross appeal filed by the plaintiff has also not been
adjudicated upon though in effect the plaintiff's suit has been dismissed. It
is found that the appellate Court while allowing the appeal, has exercised
jurisdiction with material irregularity in failing to consider relevant
material available on record. A case for interference has thus been made
out and while examining the material on record, jurisdiction is being
exercised within the parameters of the decision in Kalidas Chunilal Patel
(supra). It is thus held that the appellate Court erred in holding that it
was only the open plot that was given on lease to the defendant and
hence the provisions of the said Act were not applicable. Instead, it is
held that portion of the open plot alongwith structure standing thereon
had been given to the defendant at monthly rent of Rs.400/.
The subject
matter of the suit was premises within the meaning of Section 7(9) of the
said Act. The suit was therefore, maintainable and adjudication on merits
was necessary. As the appellate Court has dismissed the suit on the
ground of jurisdiction, it is found necessary to remand the appeal to the
appellate Court for the fresh consideration as the findings with regard to
the defendant being in arrears of rent and bona fide need of the plaintiff
would have to be adjudicated upon.
16. Accordingly, the following order is passed.
I) The judgment in Regular Civil Appeal No.3 of 2017 dated
06.11.2017 is set aside.
II) The proceedings are remanded to the appellate Court which
shall decide the appeal afresh on its own merits and in
accordance with law. The parties shall appear before the
appellate Court on 01.12.2018 and the appeal shall be
decided expeditiously and without being influenced by any
passing observations made in this judgment.
17. The Civil Revision Application is accordingly allowed in
aforesaid terms with no order as to costs.
JUDGE
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