Ramchandra Mahadev vs Padmakar Balkrishna Samant and Others

A.M. Khanwilkar, J.—This writ petition under Article 227 of the Constitution of India has been filed by the original plaintiff who claims to be the sub tenant in respect of the suit structure, challenging the judgment and order dated 2-6-1987 passed by the Appellate Bench of the Small Causes Court at Mumbai in Appeal No. 439 of 1977.

The premises in question is situated in property known as Samantwadi, Goregaon, Mumbai 63. The respondents are the owners in respect of the said land. Some time in the year 1955 the respondents had let out open piece of land to one Prabhunath Pandey. It is stated that the said Prabhunath Pandey constructed a structure on the said land which was subsequently let out to the petitioner herein. The respondents filed the suit against the said Prabhunath Pandey for possession of the land in question. It appears that the said suit, which was filed in the year 1962, against Prabhunath Pandey, came to be decreed and the said decree was put in execution on August 10, 1966. The petitioner herein caused obstructions for which the respondents took out Obst. notice for removing obstruction caused by the petitioner. In the said Obst. proceedings the Rent Court granted time to the petitioner to file a declaratory suit and the Obst. Proceedings were thus disposed of. Pursuant to the liberty granted by the Rent Court, the petitioner filed a suit before the Small Causes Court being RAE Suit No. 2934 of 1968. The stand taken by the petitioner in the said suit is that he was in exclusive possession of the suit premises since the year 1955, which were let out to him by Prabhunath Pandey who was the original tenant of the respondents herein. According to the petitioner he was paying regular rent to the said Prabhunath Pandey from time to time. In the circumstances, the petitioner contended that since he was the sub tenant of Prabhunath Pandey, prior to May 1959, in view of the Ordinance of 1959 his possession in respect of the suit premises is protected and on determination of the tenancy of Prabhunath Pandey the petitioner has become direct tenant of the respondents. In the said suit both the parties adduced oral and documentary evidence. After considering the record the lower Court was pleased to declare that the petitioner had become direct tenant of the respondents in respect of the suit premises and consequently restrained the respondents from executing the decree passed in RAE Suit No. 5493 of 1962.

Being dissatisfied by the said decision the respondents preferred an appeal before the Appellate Bench of the Small Causes Court, Bombay. The Appellate Court was pleased to observe that the trial Court having concluded that the original tenant Prabhunath Pandey had taken the open land from the respondents, it was not open for it to hold that the petitioner was the sub tenant of the suit structure. The Appellate Court referred to the decision of this Court reported in AIR 1973 Bom 220, which has been followed in the later decisions. After having considered the facts and the settled legal position the Appellate Court held as follows :

"We feel that in view of the principles laid down in all these cases, the only conclusion which will have to be drawn, will be that even though the respondent was the tenant of Prabhunath Pandey from 1955 onwards as regards the super structures erected by him the respondent cannot claim sub-tenancy rights as regards the land in question and he will have to be considered at the most a licensee as regards the land in question and once the right, title interest of Prabhunath Pandey the tenant of the land came to an end, the licence created by Prabhunath Pandey in favour of respondent, as regards the land in question beneath the structure also will have to be considered as having come to an end. Under the circumstances the learned trial Judge cannot be considered as right in concluding this aspect of the case and in decreeing the declaratory suit and granting him a declaration as regards the tenancy rights. We thus feel that the learned trial Judge committed material error in appreciating the factual and legal aspects of the case in this respect. Legally the respondent could not have claimed sub tenancy rights and it appears that in the plaint also he was also the while claiming himself to be the tenant of the super structure and he never claimed himself to be the sub tenant of the land as is held by the learned trial Judge. Moreover he could not have claimed automatically sub-tenancy of the land in question, for that purpose he ought to have put forth the necessary pleadings. If we consider the pleadings and the evidence attempted to be land, the same shows that he himself is claiming to be the tenant of the super structure and claiming Prabhunath Pandey also the tenant of structure in question of defendants-appellants which story is entirely disbelieved by the learned trial Judge. We thus feel that it was not open to the learned trial Judge to grant the decree to the respondent in respect of the tenancy rights as regards the room No. 1 in question when the respondent failed to prove that the appellants original defendants were the owners of room No. 1. Under the circumstances we are unable to support and confirm the decree passed by the learned trial Judge and the same will have to be reversed."

The Appellate Court accordingly allowed the appeal preferred by the respondents and ordered that the conclusion reached by the trial Court in its order dated 11th March, 1977 is set aside. The Appellate Court dismissed the suit filed by the petitioner herein.

Against the said decision the petitioner has approached this Court by way of writ petition under Article 227 of Constitution of India.

The learned Counsel for the petitioner has argued that respondent Nos. 1 to 4 herein (original land owners) had consented to sublet the land beneath the structure in favour of the petitioner. He further contends that when the structure in question is let out to the petitioner, by necessary implication it should be held that the land underneath the structure is also let out to the petitioner as it is intricately oven to the structure. The learned Counsel for the petitioner submits that on the stand taken by the respondents that the open land was let out to Prabhunath Pandey, if accepted, then as a necessary corollary the petitioner''s case that he was protected by virtue of the amendment of 1959 Ordinance and thus entitled to protection u/s 14 of the Act for having become the direct tenant of the land owner, will have to be accepted. He further contends that assuming that no sub tenancy has been created in favour of the petitioner, however, the occupation of the petitioner of the suit premises would be in the nature of assignment/transfer/licensee, and thus there is clear transfer of interest of the original tenancy rights of Prabhunath Pandey in favour of the petitioner in which case the petitioner, becomes entitled to protection under the Bombay Rent Act.

6 Having considered the rival submissions I am of the view that the arguments of the petitioner''s Counsel deserve to be stated to be rejected. All the points raised by the learned Counsel for the petitioner have been duly considered by the Appellate Court with reference to the various decisions of this Court. The Appellate Court in my view has rightly referred to the decision reported in Vasant Ramchandra Sharma Vs. Narayanibai Mulchand Agrawal and Others, , and subsequent decisions, reported in Kazi Cumrddin Hussein Vs. Rajendrakumar Maneklal and Another, , Dinkar S. Vaidya Vs. Ganpat S. Gore and Others, , and Virji Nathuram and Others Vs. Krishnakumar, . Besides the aforesaid decisions of this Court, the law is well settled by the latest decision of the Apex Court reported Shantibai (Smt) and Others Vs. Dinkar Balkrishna Vaidya and Others, . The Apex Court has more or less considered the same set of arguments and has negatived the plea of the occupants in respect of the structure. The abovesaid matter before the Apex Court arose from the decision of this Court in Dinkar S. Vaidya Vs. Ganpat S. Gore and Others, .

The learned Counsel for the petitioner however contends that the appellate Court has decided the matter mainly relying upon the judgment of Dinkar S. Vaidya Vs. Ganpat S. Gore and Others, . In his submission, the said decision deserves to be reconsidered. He emphasised the fact that the said decision of this Court is in conflict with another decision of this Court by Justice Bhasme. He submits that both the decisions are of coordinate benches and the proposition which has been propounded deserves to be considered in the light of the observations made in the judgment of Justice Bhasme. I am afraid such contention cannot be allowed to be advanced since the said decision has been considered by the Apex Court in Shantibai (Smt) and Others Vs. Dinkar Balkrishna Vaidya and Others, . Moreover, this Court has consistently followed the said view in Kazi Cumrddin Hussein Vs. Rajendrakumar Maneklal and Another, , which in turn has referred to the decision of the Division Bench of this Court reported in Vasant Ramchandra Sharma Vs. Narayanibai Mulchand Agrawal and Others, . Apart from the fact that this Court has consistently held that a person who is occupying the super structure cannot claim any protection with regard to the land underneath the super structure, u/s 14 of the Bombay Rent Act, this position has been accepted even by the Apex Court in the decision reported in Shantibai (Smt) and Others Vs. Dinkar Balkrishna Vaidya and Others, .

In the circumstances, I find no substance in the stand taken by the petitioner and thus the writ petition does not merit any interference. Hence the same is dismissed with costs. Rule stands discharged. Interim relief to stand vacated.

At this stage the learned Counsel for the petitioner makes a request for time to vacate. The counsel for the respondents, though initially objected to the said request, has now consented to give time to vacate to the petitioner provided the petitioner files an usual undertaking in this Court within 4 weeks from today. As agreed between the parties time to vacate is granted till 30-9-2000 subject to filing usual undertaking within 4 weeks from today. Needless to say that petitioners has undertaken to file the affidavits of all the major occupants in the suit premises. It is made clear that if the affidavit is not filed within 4 weeks it will be open for the respondents to proceed with the execution of the decree. The petitioners are restrained from creating third party rights of any manner in respect of the suit premises in the meantime.

Certified copy expedited.

Parties to act on the copy of this order duly authenticated by Sheristedar of this Court.