Patna High Court
Jamuna Prasad Lala vs The Bengal Iron Co. Ltd. on 10 March, 1950
Equivalent citations: AIR1950PAT523, AIR 1950 PATNA 523
JUDGMENT Ramaswami, J.
1. The question at issue in this appeal is whether the execution of the decree taken by the respondent is barred under Section 11, Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947.
2. The respondent brought the suit on the ground that the appellant was a tenant-at-will having been let in possession of the disputed plots by virtue of a compromise in a previous title suit. As the appellant refused to quit in spite of the service of notice the respondent claimed that he should be granted a decree for ejectment and for vacant possession of two plots. The appellant contested the suit on the ground that he had constructed a permanent structure upon the plots within the knowledge of the respondent and was therefore not liable to be evicted therefrom. The appellant also denied that the plaintiff had title in respect of the land. The trial Judge granted a decree to the plaintiff which the learned Subordinate Judge reversed. In second appeal the High Court restored the decree of the trial Judge which is to the following effect;
"The defendants are hereby directed to vacate the land in suit and remove the structures within a period of 3 months from the date of the decree and on their failure to do so they will be evicted in due course of law and shall be liable for costs."
3. In support of this appeal, Mr. Anwar Ahmad addressed the argument that Section 11 of Bihar Act III [3] of 1947 is a bar to the execution of the decree. In my opinion, this argument is untenable. Section 11 (1) of the Act is to the following effect:
"Notwithstanding anything contained in any agreement or law to the contrary and subject to the provisions of Section 12, where a tenant is in possession of any building, he shall not be liable to be evicted therefrom, whether in execution of a decree or otherwise, except --
(a) in the case of a month to month tenant, for nonpayment of rent or breach of the conditions of the tenancy, or for sub-letting the building or any portion thereof without the consent of the landlord, or if he is an employee of the landlord occupying the building as an employee, on his ceasing to be in such employment; and
(b) in the case of any other tenant, on the expiry of the period of the tenancy, or for non-payment of rant, or for breach of the conditions of the tenancy;
Provided that nothing contained in this section shall apply to a tenant whose landlord is the Provincial or the Central Government or any local authority constituted under any enactment for the time being in force."
4. It is of importance to observe that Section 11 (1) is applicable only to a case of eviction of a tenant who "is in possession of any building."
5. Section 2 (h) of the Act defines a tenant to mean "any person by whom, or on whose account, rent payable for a building......".
Again Section 2 (a) defines "building" to be "any building or hut or part of a building or hut let or to be let separately for residential or non-residential purposes, and includes (i) the garden, grounds and cut-houses, if any, appurtenant to such building or hut or part of such building or hut; and (ii) any furniture supplied by the landlord for use in such building or hut or part of a building or hut."
6. Upon the proper construction of Section 11 (1) read with Section 2 (a) and Section 2 (h) it is manifest that Section 11 only bars the execution of a decree obtained against a tenant who is in possession of a building for which be is liable to pay rent. Upon the admitted facts of the present case it is clear that the appellant was merely a tenant-at-will with respect to two plots 302 and 318 of which he was granted, possession by the respondent; that subsequently the appellant built structures thereon without the permission of the respondent. It is necessary to state that the decree of the learned Munsif which was affirmed by the High Court in appeal directs that the appellant should vacate the land and remove structures within a period of three months from the date of the decree. Upon these facts, it is impossible to hold that the appellant is a tenant within the meaning of Section 11 (1) read with Section 2 (h) of Bihar Act in [3] of 1947. That being so it follows that the execution of the decree is not barred by Section 11 of the Act
7. In this context reference should be made to Jaminikanto Harendralal v. Bonomali Dey, A.I.R. (35) 1948 Cal. 172: (I. L. R. (1948) 1 Cal. 146) in which a suit had bean filed by a landlord against his tenant not for the recovery of a house but of bare land and the landlord had obtained a decree in his favour before the Calcutta House Rent Control Order came into force. Section 9 of that Order prevented a landlord from getting a decree for recovery of possession or any house from his tenant except in three classes of cases which are provided for in provisos (a), (b) and (c) to that section. It was admitted is that case that none of the provisos applied to the case. But it was argued that in view of the main enactment an contained in Section 9, Calcutta House Rent Control Order, the decree which bad been passed in the suit ought not to have been passed. This contention was rejected by Ulster A. C. J. who observed as follows:
"Section 9 speaks of a decree for the recovery of possession of any house and the word 'house' has been defined in Section 2, Sub-section (3) in a manner which would include a hut. But the suit which had been filed by Bonomali De against his tenant was not a suit for the recovery of a house even in that extended sense, but of bare land because he had let out bare land. The main enactment contained in Section 9 is therefore out of the way."
8. For these reasons therefore I hold that this appeal is without merit and should be accordingly dismissed with costs.
9. Harayan J.--I agree.