Nilesh Narayanrao vs Ramadas Bapurao Ghude

An order passed by the Additional District Judge, Wardha, in Misc. Civil Appeal No. 68/1986 on 22-1-1978 confirming the order passed by the Civil Judge , Senior Division Wardha, in Reg. Civil Suit No. 448/1986 on 4-12-1986 rejecting his application for temporary injunction is the subject matter of agitation before me in this revision.

the controversy covers a very narrow compass .A diversion of plot No. 3 Nazul Sheet No. 57 (presently numbered as city Survey No. 1902) admeasuring 435 Sp. Mater previously belonged to one Shesharao Chintamanrao Rongle. At the south eastern corner of this plot a structure attached with lavatory and oath .The present petitioner (plaintiff in the original suit) has been occupying the structure as a tenant. This plot along with the structure came to be transferred to the present respondent by a registered sale deed dated 11th August, 1986. After the purchase of this property the present respondent served the petitioner with a notice informing him that he had purchased the suit property and he a was not the suit property for his own occupation and that he shall have to vacate the block as it is required for renovation or occupation or for his own resident. The notice served on 4-9-1986 remained unrepeled The respondent , therefore, instituted a proceeding under Cl. 13(3) of the C.P. and Berar Letting of Houses and Rent Control Order before the Competent Authority for permission to be the evict the petitioner .Those proceedings are still pending.

It is the case of the petitioner that on roa about 12-10-1986 the respondent trespassed into an pen plot to the nor the of his residential block, did excavation and started some construction. Complaints were made to the police and also to the municipal authorities but as they could not be redressed he has instituted this suit for injunction .His main allegation in the suit are that the structure along with open have been the subject matter of the tenant and, therefore, his possession cannot be disturbed except in accordance with law As such the defendant (respondent) has absolutely no right to trespass upon the land and carry out the construction . Secondly it is contended by him that as long ashis tenancy is not terminated according to law he has an absolute right of enjoyment. Thirdly that bythe trespass and the contemplated construction his way (ingree and egree) had been blocked He had applied for temporary injunction and sought facie case and unless helping hand of this Court is stretched irreparable loss or injuries likely to be caused.

I tis clear from the plaintiff allegations that the plaintiff has come with a clear cut case before the Court that the open plot is also a subject matter of tenancy along with the structure which he is occupying. It is an admitted position that the structure had been let out on rent to the present petitioner plaintiff. The defendant however, disputes that the space was ever let out to the plaintiff. It is his positive case that this open plot was never a subject matter of the tenancy.

Both the courts below that founds as a fact that the plaintiff had failed to establish prima facie case inasmuch as no cogent and positive material has been brought before the court to lend to a reasonable conclusion that the structure as well as the open space surrounding there to were together the subject matter of tenancy. Both the courts having come to the conclusion that the plaintiff has failed to establish prim,a facie case, they though it is fit case where a temporary injunction would not be justifiable issue. On this court the trial court rejected the applicant for temporary injunction .Appellate court rejected the appeal .It is this decision of the appellate court which has been the subject matter of the present lengthy debate.

5A. Mr,. Bodbe, the learned advocate for the petitioner strenuously urged before the Courts are gulty of committing jurisdictional error inasmuch as they have anot considred the material which has been put before than for consideration. Before proceeding to this aspect it will be necessary for me to consider as to what has been brought before the Court and why both the courts below have considered. TO repeat it once against was a positive contention of the plaintiff-petitioner that the open plot was equally a subject matter of tenancy along with a structure wherein he is putting in with his family as a tenant. Obviously there was no material before the courts which could justify the inference that this courts which could justify the inference that this open space is also a subject matter of tenancy .On the other hand and in may courts below came to the conclusion opinion rightly when they considered the circumstances particularly flowing form the statement of the plaintiff himself. It is pertinent to note that on 27th October 1986 when the case is made out for the first time that open plot is also a part and parcel of the tenanted premises. In fact the controversy started right since August 1986 when the defendant Purchased this property form Shri Ronghe. On 4-9-1986 the defendant served a notice on the present petitioner plaintiff informing him that he has purchased the property and hence he (plaintiff) should vacate the same. It was the first opportunity for the plaintiff to bring it to the notice of the defendant that he was a tenant not only in respect of the structure but also respect of the open space surrounding thereto. It is an admitted position that at least on 12-10-1986 the defendant performed openly the Bhumipujan. Thus was with the intention that he wants to commence the work of construction on this plot. The plaintiff has come up before the court with a case that on17th he reported the matter tot he police. His statement was recorded by the police. And the statement had been relied upon by both the courts below. On or about 18 th October, 1986 the plaintiff applied to the Municipal Council at Wardha and the assertion made in that application are also relied upon the both the courts below. What the courts below found form these different materials-the authorship whereof could be tagged with the plaintiff and the plaintiff alone is that it was nowhere declared by the plaintiff that he was a tenant of te plot surrounding the building .His simple case was that there was an approach to his house from this open plot and this approach was being obstructed by the constrution By the courts below came to the conclusion that this approach was contradictory to the positive allegations made in the plaint when for the first time a case wa made out that he is in possession of the open plot as a tenant and the entry of the defendant over that land amounts to trespass .Both the courts below rightly held that it was not a stage for deciding whether infact it was subject matter of the tenanted property or not. But as far as a prima facie case was concerned both the courts held that there was no clear material which would justifiably lead to the conclusion that the plaintiff was in possession of this open that in his right as a tenant. This obviously is a finding of fact. However, Mr. Bodadet he learned advocate for the petitioner strenuously urged before me that both the courts below are guilty of jurisdictional error in arriving at this finding of that The complaint of Mr. Bobade was threefold .Therefore the provision of item. (a) sub cl.(3) of Cl. 2 were altogether neglected and not looked into the provison of S. 108 of he Transfer of Property Act have nt at all been looked it toby the courts below and the courts below have committed an error of jurisdiction inasmuch as the copy of the application produced by the plaintiff before the trial courts had not at all points according to Mr. Bobade, which constitute an error of jurisdiction which cannot perhaps justify this court in interfering with the so-called finding adverted to above .

it was contention of Mr. Bobade that the south east corner of the plot there is a structure and in front of the structure to the north thee is an open space. It is this structure and the open space .It is this structure and the open space which make the whole plot which the present defendant had purchased, Mr. Bobade urged before me that though that may not be positive evidence at this stage to establish whether the open plot was the subject matte of the tenancy or not, still a perusal of item (a) of sub- cl. (3) of Cl. 2 of the C. P. and Berar Letting of Houses and rent Control Order, 1949 would raise of presumption in his favour that the open plot must necessarily in part of the tenanted premises. Admittedly except for structure there was no other structure on the plot. The structure had been tenanted out to the plaintiff. It is also an admitted position that the previous landlord was a resident of Nagpur and he only occasionally used to visit the property at wardha. Thus in fact according to the plaintiff he was only of the structure but the plot also. The question relevant at this stage is the nature of the occupation can also be permissive. What is relevant at this stage is the nature of the occupation or the character of the occuption. If occupation is only permissive it does not confer any right .If, on the other land the occupation is the capacity as tenant then there may be some statutory right available to the plaintiff .It is form his point of view that the whole controversy has to took into and form that point of vies even sketching the imagination to its extreme it is very difficult to say that this open plot as a" appurtenance "to the structure has been let out to the tenant. plaintiff . The word "Appurtenance" according to Oxford Dictionary means A thing that belong to another a belonging a minor property right or privilege belonging to another as principle and passing with it an appendage. A contributory adduct an accessory A contributory the mechanical accessories employed in any function or system, "apparatus gear" The meaning of the words would gave us some idea as to what the term "appurtenance" - means In any case this is a subject matte of dispute and both the Courts below have rightly left this question to be decided on merits at a proper stage.

Coming to the next argument it was the contention of Mr. Bobade that under S. 108(c) of the transfer of Property Act, the lessor shal be deemed to contract with the lessee that, if the latter pays that rent reserved by th lease and performs the contract binding on the lessee he may hold the property during the time limitedly he lease without interruption, It is difficult to say how the plaintiff can extract this advantage from the provision of Cl. (c) of S. 108 of the Transfer of Property Act, It only creates a covenant of enjoyment of the lease without interruption as long as the tenant pays the rent. But want is the property covered by the lease is altogether a different aspect. It was next urged by Mr. Bodade that the trial court had not at all taken into consideration an application presented by the defendant before th rent Controller I was taken extensity through that application. Mr. Bodade contended before the that in para 1 of this application it is mentioned that there is the plot and at the south est corner of the plot there is a out house with the rooms. In second paragraph it is averred that these three rooms are occupied by the present plaintiff and his wife at the monthly rent rs. 525/- In para 3, the defendant has stated that he has purchased the plot and the out-house. In para 4 he has contended that he has no other house of the own for his occupation at Wardha and he needs his property for his personal occupation .In para 5 he has averred that he needs that suit block for his bona fide residence and use as it needs renovation which cannot be done without it being vacated in Para 6, he has averred that he has already requested the present plaintiff to vacate the suit block. Mr. Bobade urged before me that the defendant had used two different phraseologies viz., (1) the suit block and (2) the plot. I fail to understand how this can help the plaintiff is establishing prima facie that he is the tenant not only of the structure but also of the plot. As I read the application I Find that he has described the property as it stands, then he has averred that the constructed portion is occupied by the plaintiff ,He then averse that he wants the constructed portion for his personal occupation without renovation. He wants that it should be vacated. Ultimately, he requested the Rent Controller to grant him permission to terminate the tenancy of the plaintiff Form the application as it stands ti cannot be said that it is the evidence material for considering the prima facie case or that it could have helped the Court incoming to the considering the prima facie case or that it could have helped the court coming to the conclusion, whether there was a prima facie case or not. Infact, the application standing as it is cannot throw any additional light on the subject matter of the controversy. Thus as fact as the merits are concerned both the court below were right incoming to the conclusion that the plaintiff had failed to establish the prima facie case. To repeat it once against he was required to establish before the court prima facie that open plot was a part of the tenanted premises and as such it was in the exclusive possession and that entry of the defendant. Thereon could be termed a a criminal trespass. The material which was been brought before the court is not potent enough to establish it. Clause 2 (3) (a) of the Rent Control Order does not help the plaintiff in any way nor does it carry any weight to his contention that the open plot is appurtenance of the demised premises Section 108(c) of the Transfer of Property Act also cannot even inference may add any weight to the case of the plaintiff. Similarly the omission on the part of te trial court as well as on the part of the first appellate court (if Any) in not considering the application presented by the defendant before rent Controller does not in any way affect the inference drawn by the trial court and first appellate court. On the other land their inference are strengthened by the material which is brough on record particularly when till the date of filling the present suit which was nowhere in the mind of the plaintiff that open plot where the encroachment is alleged) was within his exclusive possession so as to make an entry of the plaintiff there on within the terms of the law. In my opinion both the courts below were quite justified incoming to the conclusion that the plaintiff had failed to establish prima facie case.

In fact this finding in itself is purely a finding of fact which this court ordinarily will not interfere with. An attempt was made by the learned counsel for the petitioner during his arguments the disregard to the legal provisions contained in sub-cl. (3) of Cl. 3 of the Rent Control Order and S. 108(c) of the Transfer of Property Act would take this case within the category specified by Cl. (c) of sub-sec,. (1) of S. 115 of the Code of Civil Procedure, But the attempt cannot succeed for th reasons already given in the preceding paragraphs .There is thus no question of the courts below exercising jurisdiction not vested in it by law or failing to excercise the jurisdiction vested in by law. There is no illegality inasmuch as they have adhered to the material produced before them and the inference drawn by this Court cannot be called as irrational. There is no case of any material irregularity, There is no scope for interference with orders of the courts below.

On the assumption that the courts acted in the exercise of the jurisdiction illegally or material irregularly substantial case law was relied upon. But in view of my finding that there is no illegality creeping nor no material irregularity in exercising the jurisdiction, I do not think it necessary to discuss the same.

In the case result the revision has no merits and it deserves to be dismissed. The petition is dismissed. The petitioner shall bear costs of the respondents in addition of his own.

Revision dismissed.