Bombay High Court
Damji Nansi vs Om Prakash Nathuram Gulathi And Ors. on 19 January, 1979
Author: P.B. Sawant
Bench: P.B. Sawant
JUDGMENT P.B. Sawant, J.
1. By this petition filed under Article 227 of the Constitution, the petitioner seeks to challenge the order dated 22-4-1974 passed by the Appeal Court of the Small Causes Court, Bombay, summarily dismissing the petitioner's suit for a declaration and injunction. Briefly stated the facts leading to the present petition are as follows :
2. The suit plot which admeasures 236 sq. yards and is situate at Damodar Wadi Mahim Bazar Road, Mahim, Bombay, was leased out by one Virji Vera the original owner of the plot to respondent No. 2 under a registered lease dated 3-8-1951 for a period of 15 years. The lease was to commence from 1-6-1950. The purpose of the lease was to construct a building on the said plot. Respondent No. 2 thereafter constructed a structure known as Kowli Chawl on the suit plot and let out to the tenants in the same to different tenants. The suit premises with which I am concerned in the present petition is one such tenement being room No. 1 on the ground floor of the said Chawl. One Ravji Ratansi was the tenant of the said room prior to 1956 and the petitioner came to occupy the suit premises from 1956 as the subtenant of the said Ravji Ratansi.
3. In 1956 the owner of the suit plot Virji Vera sold the same to respondent No. 1 and his brother and father. In 1964 respondent No. 1 purchased the shares of his brother and father in the suit plot and, therefore, become the sole owner thereof. Respondent No. 2 accepted the petitioner as his tenant by issuing rent receipts in his name in April 1965. On 31-5-1965 the lease of the suit plot in favour of respondent No. 2 expired. Thereafter respondent No. 1 who had become the owner of the suit plot filed a suit against respondent No. 2 in the Small Causes Bombay, being R.A.E. Suit No. 8206 of 1965 for possession of the suit plot on the ground that he wanted the same for making construction thereon. To that suit only respondent No. 2 was a party. On 30-11-1970 the said suit was compromised by filing consent terms wherein respondent No. 2 submitted to the decree for possession of the suit plot and also agreed not to claim the building material of the structure on the said plot viz., of the said Kowli Chawl. Respondent No. 1 thereafter took out execution proceedings against the occupants of the said Kowli Chawl including the petitioner. The warrant of possession having been obstructed, obstructionist notice was issued against all the occupants which was made absolute by the Court on 6-9-1971. The present suit was filed by the present petitioner for a declaration that he was a tenant of respondent No. 1 protected by the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Rent Act), in respect of room No. 1 in his occupation and for an injunction restraining respondent No. 1 from executing the decree in R.A.E. Suit No. 8206 of 1965. The suit was resisted by respondent No. 1 and the trial Court came to the conclusion that the petitioner was only a tenant in respect of the suit premises and was not a tenant of the land beneath it and, therefore, there was no relationship of tenant and landlord between him and respondent No. 1 and as such he was not entitled to protection of the Rent Act. In this view of the matter, the trial Court dismissed the suit filed by the plaintiff. Against the said order of dismissal of the trial Court, the petitioner preferred an appeal to the Appeal Court of Small causes Court and the appeal Court by its impugned order and after giving reasons in support of the order, dismissed the petitioner's appeal summarily under Order 41, Rule 11 of the Civil Procedure Code. Hence the present petition.
4. Mr. Hattangadi, the learned Counsel for the petitioner, raised two contentions in support of the petition. His first contention was that the petitioner by virtue of his capacity as a tenant of the suit premises i.e. from No. 1 in his occupation, is also a tenant of the land underneath it and, therefore, on the termination of the lease of the land in favour of respondent No. 2 he became a direct tenant ipso facto of respondent No. 1. His second contention was that under the lease of the suit plot dated 3-8-1951, the structure was to vest in the lessor on the expiry of the lease period, and, therefore on, the extinguishment of the rights of the lease in the suit plot, the ownership of structure belonged to the lessor and the petitioner had become a direct tenant of respondent No. 1 the lessor.
5. In support of his first contention, he strongly relied upon two decisions of the single Judges of this Court viz., (Special Civil Application No. 1191 of 1967, decided by Bhasme, J., on 10-3-1970), and (Special Civil Applications Nos. 22, 24, 25, 26, 37 and 38 of 1966, decide by Bal, J., on 2-3-1966), The decision given by Bhasme, J. proceeds on the footing that under the Transfer of Property Act (hereinafter referred to as the said Act) a lease can be created only of immovable property and the definition of "Immovable property" read with the definition of the phrase "attached to that earth" given in section 3 of the said Act showed that the building without the land underneath it is not an immovable property. Hence, when a lease is created in a building or part of it, will have to be held that the lease is in respect of a building or a portion of it as the case may be together with the land underneath it. That is in short the ratio, of the said decision. As regards the decision given by Justice Bal, the learned Judge while accepting the proposition that there can be a lease separately of the land of the structure standing thereon on the special facts of the case, came to the conclusion that there was evidence on record facts of the case, came to the conclusion that there was evidence on record to show that what was leased to the tenant of the structure was not only the structure but also the land underneath it. It is on account of this evidence with regard to the lease created in respect of the land as well, that the learned Judge held in that case that the tenant of the structure had become the direct tenant of the owner of the land as well as the was protected under section 14 of the Rent Act on the termination of the tenancy of the leasee of the land. Therefore, the decision given by Bal, J. is of no avail to the petitioner in the present case unless it is pointed out that in the present case also there was evidence on record to show that when a tenancy was created in favour of the petitioner in respect of the suit premises, there was also a tenancy in his favour in respect of the land underneath it. As regards the decision given by Bhasme, J. I may point out that there are two circumstances which prevents me from accepting the said decision as good law. The definition of immovable property given in section 3 of the said Act merely says, "immovable property" does not include standing timber, growing crops or grass. The definition of the phrase "attached to the earth" is as follows :
"Attached to the earth" means---
(a) rooted in the earth, as in the case of trees and shrubs;
(b) embedded in the earth, as in the case of walls or buildings; or
(c) attached to what is so embedded for the permanent beneficial enjoyment of that which it is attached"
6. It will thus be seen that there is nothing in either of the two definitions to suggest that the building without the land underneath it, is not immovable property for the purposes of the said Act and, therefore, for the purpose of creation of lease under section 105 thereof. There may be a land without anything attached to it which can be leased out under the said Act. There may also be a land with things attached to it such as a building which can also be leased out under the said Act. That however does not mean that the land and the building cannot he leased out separately. With respect to the learned Judge, on this plain reading of the relevant provisions of the said Act to which the learned Judge has also made a reference, I find it difficult to accept the conclusion to which he has arrived. Secondly, there are at least three decisions of this Court, one of which is a Division Bench decision which has taken the view that land and building can be let out separately and a lease in respect of a building does not necessarily include a lease in respect of the land. The Division Bench ruling is an unreported decision in ( Civil Revision Application No. 1511 of 1960, decided by patel and K.K. Desai, JJ. on 21-11-62.) This decision was expressly referred to and the ratio of it, as pointed out, above was followed by Bal, J. in the Special Civil Application which have been already referred to above. The said decision was also expressly referred to and the aforesaid ratio was followed by Vaidya J. in 75 Bom. L.R. 24 Vasant Ramchandra Sharma v. Narayanibai Mulichand Agarwal. What is more, Vaidya, J. in this decision has referred to the said decision of Bhasme, J and relying upon the Division Bench decision in Civil Revision application No. 1511 of 1960, has, with respect and rightly, not followed the view taken by Bhasme, J. I also find that in view of the said Division Bench decision which has taken a different view, it will be difficult to follow the view taken by Bhasme, J. This is apart from the fact that the two single Judges of this Court Bal, J. and Vaidya, J. have accepted the ratio as pointed out above of the said Division Bench decision. In view of this legal position, it is not possible to accept the contention advanced by Mr. Hattangadi that whenever there is a lease created in respect of a building or part of it, it necessarily includes a lease in the land underneath it, and therefore, when the interest of the lessee of the land comes to an end, the lessee or the tenant of the building becomes ipso facto the tenant of the lessor of the land.
7. Mr. Hattangadi then submitted, dealing with the same contention, in the present case, there were special circumstances on record to show that the tenancy in respect of the suit premises included the lease in respect of the land underneath it. For this purpose, he relied upon the following circumstances :---(a) that the lease in respect of the suit plot was created by Virji Vera on 3-8-1951 with effect from 1-6-1950 i.e. after the coming into operation of the Rent Act and, therefore, the imputation of knowledge with regard to the liability of the tenancy rights created by the lessee in respect of the structure should be presumed on the part of the lessor of the suit plot; (b) that the lease of the suit plot was admittedly a building lease with an obligation to make construction thereon. (c) that the lease permitted assignment and/or leasing of the structure and (d) that there respondent No. 1 who is the present landlord purchased the suit plot in the year 1964 when the structure was already constructed and occupied by various tenants. I am of the view that none of these circumstances is of any avail to the petitioner to prove that any lease of the land underneath the suit premises tenanted by him was created in his favour . A person may create a lease of the plot in favour of another and for purposes of making construction thereof without taking any liability of the tenant who may be inducted by the lessee in the structure that may be created on such land. If he avoids this expressly, the mere knowledge that there is a Rent Act in operation which gives protection to certain occupants will not necessarily show that he had taken the liability of such tenants in the proposed structure. When the owner of the building, as in the present case, knew very well of his rights against the future tenants in the structure, he may create such lease in spite of the provisions of the Rent Act. Which should not as is the case in the present case, affect his rights to get vacant possession of the structure that may be constructed on the land. There is no evidence to show that the lessor of the land thereby agreed to accept the obligation of continuing the occupants of the structure as direct tenants thereof. As regards the permission to assign, it may be noted that what has been permitted is the assignment or sub-letting of the structure and not of the land. On the other hand, the lease on record shows that there is an express prohibition to part with or sub-let the land without the written consent of the lessor. So also the purchase by respondent No.1 of the plot in 1964 will not show that respondent No. 1 thereby agreed to accept the occupants as his tenants. respondent No. 1 can be said to have agreed to purchase the land knowing fully well of his rights as against the occupants of the structure. Thus none of the circumstances relied upon by Mr. Hattagadi go to show that there was any lease created in respect of the land in favour of the occupants of the structure such as the petitioner. On the other hand, as pointed out earlier, the lease had expressly prohibited parting with or subletting of the suit land. For all these reasons, I find that there is no substance in this part of the first contention either
8. As regards the second contention viz., that under the lease the structure vested in the lessor on the expiry of the lease, it may be pointed out that the term of the lease is that the lessor was entitled to purchase the structure after the expiry of the lease period and till the lessee received the price of the structure from the lessor, notwithstanding the expiry of the lease period, he was to continue to be the monthly tenant in respect of the structure only. The lessee i.e. respondent No. 2 having given up his rights under the said clause by virtue of the decree in suit No. 8206 of 1965, it is difficult to hold that the rights in the structure had the effect of being transferred to the lessor. It is not possible to hold in the circumstances that such surrender or rights by the lessee in respect of the structure automatically operates as a transfer of the lessee's rights in the structure in favour of the lessor. In any case, it cannot be said that it constitutes, a transfer in law. A valid transfer or rights or interests in the property requires a registered document. Admittedly, there is no such registered document by which a transfer of ownership has been effected in favour of the lessor of the suit plot. In the circumstances even this contention must fail. The result is that the petition fails and the rule is discharged.
9. The petitioner through his Advocate Mr. Vaze makes a statement that only he and the members of his family are residing with him in the suit premises and that nobody else is in occupation of the same. The petitioner through Mr. Vaze also gives an undertaking that he will not induct anyone else in the suit premises during the period that the execution of the decree in R.A.E. Suit No. 8206 of 1965 is stayed and that he will not either part with, dispose of or in any way encumber the suit premises during the said period . He further undertakes to quit, vacate and deliver peaceful possession of the suit premises at the end of the period for which the said decree is stayed. On these statements made and the undertaking given by the petitioner through his Advocate, the execution of the decree in R.A.E. Suit No. 8206 of 1965 is his stayed for a period of six months from today. In the circumstances of the case, there will be no order as to costs.