Mrs. Dossibai N. B. Jeejeebhoy vs Khemchand Gorumal And Others on 29 September, 1961
Although the open site leased belongs to the landlords, Khader Sheriff was the owner of the sheds erected by him. The concept of law of dual ownership in such case is well recognised. Having regard to the fact that the plea raised by the landlords in the petition is vague, for not specifying which part of the premises leased had been sub-let to Jayaram, it cannot be said the landlords can successfully maintain their application under Clause (f). The question of law in this regard is covered by the decision of the Supreme Court in the case of MRS. DOSSIBAI v. KHEMCHAND, following which this Court in the case of VAZAYIL MOHAMMED v. SRIDHAR PURANIK, held that Clause (f) Of Subsection (1) of Section 21 of the Act is not applicable in cases of letting out of the bunk shops erected by the tenant on the open land leased to him with permission to erect the same. I am bound by these decisions. Therefore, I have no hesitation to hold that the Court below was wholly in error in making the order of eviction under Clause (f) of Section 21(1) of the Act, merely because it transpired during enquiry, as contended by A.R. Sheriff and the petitioner that the premises had been transferred by Khader Sheriff, since the landlords had not sought for eviction on that ground and they had proceeded with the enquiry only on the ground mentioned in para-5(b), namely a part of the premises had been sub-let to Jayaram. Although the legal representatives of the deceased tenant have not contested the proceedings and have also not chosen to examine themselves in rebuttal of the evidence adduced by the landlords, those so called admissions cannot be made a basis for making the order of eviction. To do so would be making out a new case for the landlords. That is not permissible.