[1.0] As common question of law and facts arise in this group of revision applications and as such arising out of the common judgment and order passed by the learned Appellate Bench of the Small Causes Court, at Ahmedabad and between the same parties, they are disposed of by this common judgment and order. [2.0] Civil Revision Application No.325 of 2000 has been preferred by the applicant – original plaintiff – tenant to quash and set aside the observations holding in favour of original landlord in the judgment and order dated 01.03.2000 in Civil Appeal No.73 of 1995 arising out of HRP Suit No.1687 of 1984.
[2.1] Civil Revision Application No.326 of 2000 has been preferred by the applicant – original opponent – defendant – tenant to quash and set aside the observations holding in favour of the landlord in the judgment and order dated 01.03.2000 in Civil Appeal No.82 of 1995 arising out of HRP Suit No.2436 of 1987.
[2.2] Civil Revision Application No.327 of 2000 has been preferred by the applicant – original appellant – defendant – tenant to quash and set aside the observations made by the learned Appellate Bench of the Small Causes Court, Ahmedabad holding in favour of the landlord in the judgment and order dated 01.03.2000 in Civil Appeal No.83 of 1995 arising out of HRP Suit No.2436 of 1987.
[2.3] Civil Revision Application No.328 of 2000 has been preferred by the applicant – original appellant – defendant – tenant to quash and set aside the observations made by the learned Appellate Bench of Small Causes Court, Ahmedabad holding in favour of the respondent – landlord in its judgment and order dated 01.03.2000 in Civil Appeal No.84 of 1995 arising out of HRP Suit No.3758 of 1983.
[2.4] Civil Revision Application No.639 of 2000 has been preferred by the applicant – original plaintiff – landlord to quash and set aside the impugned judgment and decree dated 24.04.1995 in HRP Suit No.2436 of 1987 by which the learned Small Causes Court, at Ahmedabad had dismissed the said suit preferred by the applicant herein – original landlord for decree for possession as well as impugned judgment and order dated 01.03.2000 passed by the learned Appellate Bench of Small Causes Court, at Ahmedabad in Civil Appeal No.82 of 1995 arising out of HRP Suit No.2436 of 1987.
[3.0] Brief facts leading to filing of the present Civil Revision Applications in nutshell are as under:
[3.1] That the applicant of Civil Revision Application No.639 of 2000 is the landlord (hereinafter referred to as “landlord”) and the applicant of Civil Revision Application Nos.325 of 2000 to 328 of 2000 is the tenant (hereinafter referred to as “tenant”). That the landlord Om Prakash Chopra filed HRP No.2436 of 1987 against the tenant Shri Roshanlal Sharma for possession/eviction decree stating that he is the owner of the property bearing Bungalow No.2/B in Vaishnav Cooperative Housing Society, Opp.S.P. Petrol Pump, Ramnagar, Sabarmati, Ahmedabad which has been purchased by him in the year 1980 by Shri Chhotalal B. Shah. It was the case on behalf of the landlord that when he purchased the property, at that time, the tenant was a tenant for the part of the premises since before many years. It was further stated that the tenant is in possession of two rooms, otta and bathroom situated in the rear side at a monthly rent of Rs.40/ exclusive of education cess and inclusive of municipal tax. It has further alleged that except the premises consisting of two rooms, otta and a bathroom, the rest of the open land of the compound is in his possession and the tenant is only allowed to use it as his way and except that, he has no any other right over the said compound land. It was alleged by the landlord that the conduct of the tenant is guilty as he is quarreling with the landlord and his family members and is also giving threats through his sons. It was also further alleged that open compound of the property is also used without any permission and hence, the said conduct has become nuisance for the landlord and the members of his family. It was also further alleged that defendant – tenant has not paid rent from 01.09.1983 and thereby he has become tenant in arrears and hence, liable to be evicted from the suit premises. It was also further averred in the plaint that the suit premises has been let out to the tenant only for his residence but despite of that he is accommodating his relatives who are coming from his native place in the suit premises and thereby he is charging more amount than the amount or rent from such relatives and hence, he is profiteering from the suit premises. The landlord also claimed the possession of the suit premises by alleging that he requires the same reasonably and bonafide for his personal use and occupation. According to the landlord he served the notice dated 17.03.1984 upon the tenant, whereby the tenancy of the tenant was terminated, however, inspite of the receipt of the said notice, the tenant has not complied with the demand and therefore, he instituted the aforesaid HRP Suit No.2436 of 1987 requesting to pass decree for possession along with the due amount of arrears of rent and notice charges.
[3.2] That the suit was resisted by the defendant by filing the written statement at Exh.7 denying the averments and allegations in the suit. It was denied that he is not the tenant of the rear portion of the compound as alleged. It was also denied that the tenant's right is restricted for the purpose of egress and ingress from the compound as alleged. It was also denied that the defendant – tenant is a tenant of small two rooms and bathroom and otta as alleged by the landlord in the plaint. It was also denied by the tenant that he is a quarrelsome person as alleged. It was also denied that the defendant's tenant's sons are threatening the plaintiff as alleged by him. It was the case on behalf of the defendant tenant that he and his family members are using the rear portion of the compound as it is in their possession. It was also denied that the conduct of the tenant is causing nuisance as alleged. It was contended on behalf of the tenant that after the premises is purchased by the plaintiff landlord in the year 1980, he asked the defendant tenant to vacate the suit premises, but the defendant – tenant refused to vacate and therefore, the plaintiff landlord has started harassing the defendant – tenant. It was also denied that he is in arrears of rent as alleged. It was also stated that the defendant tenant has also filed standard rent application for the fixation of standard rent of the suit premises in which he has deposited the entire rent due. It was also denied that the plaintiff landlord requires the suit premises reasonably and bonafide for his own personal use and occupation. Therefore, it was submitted that the plaintiff landlord is not entitled to the decree for possession on the ground stated in the suit and therefore, it was requested to dismiss the suit.
[4.0] That one another HRP Suit No.3758 of 1983 was filed by the landlord against the tenant for permanent injunction to restrain him and his agents, servants etc. from making any kachcha or pucca construction in the open land of the compound and also to restrain them from making any obstruction in the use of the plaintiff landlord of the open land of the compound. It was the case on behalf of the plaintiff that the defendant tenant is a tenant of two rooms and otta and bathroom only and he is not having any tenancy rights in respect of the rear portion of the open compound wall. It was alleged that the defendant tenant intends to construct the chokdi and the kachcha room in the open land of the compound which he has no right whatsoever to make any construction in the open land of the compound and therefore, it was requested to decree the suit for permanent injunction and to grant permanent injunction as prayed for.
[4.1] The said suit was resisted by the defendant tenant by filing written statement at Exh.15. It was the case on behalf of the tenant that the open land in the rear part is like a courtyard and forms part of premises let to him. It was further contended that the defendant tenant and his family members are accordingly occupying and enjoying the open land in the rear part. It was contended that there are 10 members in the family of defendant – tenant and the rooms in his possession are very small and therefore, it is not possible to accommodate all the 10 members of the family in the said two rooms and therefore, the rear portion open land is used and occupied by the tenant as a part of the tenanted premises, since the date of inception of the tenancy. It was also contended that family members wash and dry the clothes in the said open land and the defendant – tenant and the members of his family and guests and others sit in the open land more or less like a courtyard. Therefore, it was requested to dismiss the suit.
[5.0] That one HRP Suit No.1687 of 1984 was filed by the tenant against the landlord for permanent injunction against the landlord restraining him from putting any construction in the rear portion of bungalow and also to restrain him from using terrace of the bungalow.
[5.1] The said suit was resisted by the landlord by filing the written statement at Exh.15. It was the case on behalf of the landlord that the tenant has filed the said suit as a counter blast of HRP Suit No.3758 of 1983 filed by him against the tenant. It was the case on behalf of the landlord that the plaintiff tenant is not in exclusive possession of the rear side. It was also denied that the terrace is used by the tenant as alleged. It was also contended that the tenant has no right whatsoever or any interest in the terrace of the bungalow. It was also contended that the plaintiff was never the tenant of the compound even in the past and at present. Therefore, it was submitted that the landlord is entitled to put up the superstructure on the said land which is not let to the tenant and therefore, it was requested to dismiss the suit.
[6.0] That the learned trial Court framed the issues at Exh.8 in HRP Suit No.2436 of 1987 filed by the landlord which was filed against the tenant for eviction. That on appreciation of evidence the learned Small Causes Court has held that the defendant is tenant of two rooms, otta, kitchen, bathroom which has been situated on otta and latrine and kachcha room situated on the north west side. However, dismissed the suit filed by the landlord for eviction which was sought on the ground of nuisance, arrears of rent, bonafide personal requirement of the landlord.
[6.1] The learned trial Judge framed the issues at Exh.30 in HRP Suit No.3758 of 1983 which was filed by the landlord against the tenant for permanent injunction restraining the tenant from putting up any construction on the rear portion of the rear part and in the compound. That on appreciation of evidence the learned trial Court came to the conclusion that landlord has partly proved that the open land situated on the western side of the suit premises is not let to the tenant and therefore, the tenant has no right to put up any construction on the said open land and therefore, held that the landlord is entitled to the relief of permanent injunction against the tenant to restrain him from making any permanent structure in the open land situated on western side of the suit premises. Consequently, the learned trial Court granted the relief of permanent injunction in favour of the landlord and thereby the tenant was restrained from causing construction to the landlord in making construction in the land.
[6.2] The learned trial Judge framed issues at Exh.21 in HRP Suit No.1687 of 1984 which was filed by the tenant against the landlord for permanent injunction restraining him from putting any construction on the open land which was on the rear part and on appreciation of evidence, the learned trial Judge held that the tenant has succeeded in proving the facts partly and consequently granted the relief of permanent injunction in favour of the tenant, restraining the landlord from making any permanent structure in the western side of the land situated in front of the suit premises. The learned trial Court also granted the permanent injunction whereby the landlord was restraining from causing obstruction to the tenant in using the open compound situated on western side of the suit premises to come and go and as a right of way leading to the latrine situated in the south west and to the kachcha room situated in north west side of the premises. However, the learned trial Court held that the tenant has no right to use the terrace and therefore, did not grant any relief in his favour in respect of the terrace of the building.
[7.0] Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court passed in HRP Suit No.2436 of 1987 and HRP Suit No.3758 of 1983 and some of the findings in HRP No.1687 of 1984 as well as some of the findings given by the learned trial Court in aforesaid suits, the landlord preferred Civil Appeal No.82 of 1995 before the learned Appellate Bench of the Small Causes Court, at Ahmedabad and even the tenant also preferred Civil Appeal Nos.73 of 1995, 83 of 1995 and 84 of 1995 all before the learned Appellate Bench of Small Causes Court, at Ahmedabad and the learned Appellate Bench of the Small Causes Court by impugned common judgment and order passed in aforesaid appeals has dismissed the Civil Appeal Nos.82 of 1995 preferred by the landlord which was against the judgment and decree passed HRP Suit No.2436 of 1987, however, has partly allowed the same against the findings of the learned trial Court on issue No.12 in the said suit and has dismissed the Civil Appeal Nos.83 of 1995, 84 and 1995 and 73 of 1995 preferred by the tenant which were filed against the judgment and decree passed in HRP No.1687 of 1984, against the finding of the learned trial Court in respect of premises in his possession and by impugned common judgment and order, the learned Appellate Bench of the Small Causes Court, at Ahmedabad has held that the finding of the learned trial Court on issue No.12 in HRP Suit No.2436 of 1987 is set aside and it has been held that the tenant Roshanlal is in possession of one room and kitchen and otta on western side along with bathroom situated on it and the claim of the tenant in respect to kachcha room situated in the compound and in respect of the western side open land of the compound is not accepted and the learned Appellate Bench has vacated the injunction granted by the learned Judge granted in HRP Suit No.1687 of 1984 restraining the landlord from making any construction in the western side open land of the compound. However, the learned Appellate Bench has directed the landlord to manage for the ingress and egress of the defendant tenant to the suit premises as well as for the user of the latrine situated on south west corner of the compound. By the impugned common judgment and order, learned Appellate Bench of the Small Causes Court has confirmed the judgment and decree passed by the learned trial Judge passed in HRP Suit No.3758 of 1983 in favour of the landlord.
[8.0] Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the learned Appellate Bench of the Small Causes Court, at Ahmedabad in Civil Appeal No.73 of 1995, 82 of 1995, 83 of 1995 and 84 of 1995, the respective appellants – both landlord and tenant have preferred the present Civil Revision Applications under Section 29(2) of the Bombay Rent Act.
[9.0] Shri Sunit Shah, learned advocate has appeared on behalf of the tenant in respective revision applications and Shri G.D. Bhatt, learned advocate has appeared on behalf of the landlord.
[9.1] Shri Sunit Shah, learned advocate appearing on behalf of the tenant has vehemently submitted that the learned respective Courts below have materially erred in holding that the tenant is in possession of only one bathroom and kitchen and otta on western side along with the bathroom situated on it and has materially erred in holding that only one room and kitchen and otta on the western side is the tenanted premises and have been let to them. It is further submitted that the respective Courts below have materially erred in rejecting the claim of the tenant over the kachcha room situated in the compound and also in respect of the western side open land of the compound. It is submitted by Shri Shah, learned advocate appearing on behalf of the tenant that the learned Appellate Bench has not properly appreciated and considered the fact that the tenant and his family members were using the open land which was on the western/rear part of the premises which was like a courtyard. Therefore, it is submitted that the learned Judge has materially erred in dismissing the suit preferred by the tenant and refusing to grant the injunction in favour of the tenant and against the landlord.
[9.2] Shri Sunit Shah, learned advocate appearing on behalf of the tenant has vehemently submitted that the Courts below have not properly appreciated and considered whether the open land and kachcha ordi can be said to be part of the leased premises or not. It is submitted that while considering the aforesaid issue, the learned Judge has not properly considered the definition of 'premises' under the Bombay Rent Act.
[9.3] It is further submitted that assuming that the kachcha ordi and/or the western side / rear part of the open land is not part of the tenanted premises, so far as the appurtenant land is concerned, the tenant has right to use the same and therefore, the landlord cannot be permitted to put up any construction, which was in possession of the tenant. It is, therefore, submitted that neither the trial Court nor the Appellate Court has properly appreciated and considered the definition of 'premises'. It is submitted that as such the open land on rear portion can be said to be appurtenant land which was being used by the tenant and therefore, even the same can be said to be the tenanted premises. In support of his above submissions, Shri Sunit Shah, learned advocate appearing on behalf of the tenant has heavily relied upon the decision of the Hon'ble Supreme Court in the case of M/s. Larsen and Toubro Ltd., Club House Road, Madras vs. Trustees of Dharmamurthy Rao Bahadur Calavala Cunnan, Chetty's Charities by its Trustees reported in (1988)4 SCC 260 as well as the decision of the learned Single Judge of this Court in the case of Kamalaben Naginbhai Patel & Ors. vs. Bulchand Narumal & Ors. reported in 1993(2) GLR 1083. It is further submitted by Shri Sunit Shah, learned advocate appearing on behalf of the tenant that even the learned Appellate Court has materially erred in interfering that the finding given by the learned trial Court. It is submitted that the finding of fact is that the tenant is in possession of the rear portion of the suit premises i.e. compound. It is further submitted that even as per the Commissioner's report, the tenant was found to be in possession of the entire property. Shri Shah, learned advocate appearing on behalf of the tenant has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Shashi Jain (Smt.) vs. Tarsem Lal (Dead) & Anr. reported in (2009)6 SCC 40 on jurisdiction of the Revisional Court in a rent matter.
[9.4] It is further submitted by Shri Shah, learned advocate appearing on behalf of the tenant that even otherwise it has been found that the tenant was found to be in exclusive and long user of the entire premises inclusive of the rear portion of the premises i.e. compound etc. and therefore, inference can be drawn with respect to the tenancy and for which not necessary to have any documentary evidence.
[9.5] It is further submitted by Shri Shah, learned advocate appearing on behalf of the tenant that as such the learned Appellate Court has not appreciated the entire evidence on record more particularly on issue No.12 and the finding given by the learned Appellate Court is on irrelevant consideration. It is submitted that it was not a case of permissive user at all. It is further submitted that even the learned Appellate Court has considered irrelevant considerations i.e. the amount of rent at Rs.16 only.
[9.6] Now, so far as the revision application preferred by the landlord against the judgment and decree passed by the learned Appellate Bench of the Small Causes Court refusing to pass the eviction decree is concerned, it is submitted that as there are concurrent findings of fact given by both the Courts below on appreciation of evidence, the same are not required to be interfered by this Court in exercise of revisional jurisdiction.
Making above submissions, it is requested to allow the the revision applications preferred by the tenant and dismiss the revision applications preferred by the landlord.
[10.0] Shri G.D. Bhatt, learned advocate has appeared on behalf of the landlord. Shri Bhatt, learned advocate appearing on behalf of the landlord in revision application preferred by the landlord against the judgment and decree passed by the learned Small Causes Court dismissing the suit for eviction has submitted that both the Courts below have materially erred in refusing to pass the eviction decree on the ground of arrears of rent; nuisance; bonafide and personal requirement of the landlord.
[10.1] Now, so far as the revision applications preferred by the tenant are concerned, it is submitted by Shri Bhatt that on appreciation of evidence, the learned Appellate Bench has rightly held that except one room, kitchen, otta and latrine, nothing has been let to the tenant, more particularly the open land in the compound and therefore, the Appellate Bench has rightly granted the injunction in favour of the landlord and against the tenant and has also rightly not granted the injunction in favour of the tenant restraining the landlord from putting up any construction on the open land which is not a tenanted premises. It is submitted that the findings of fact given by the learned Appellate Court and to some extent by both the Courts below are on appreciation of evidence, which are not required to be interfered by this court in exercise of revisional jurisdiction.
[10.2] It is further submitted by Shri Bhatt, learned advocate appearing on behalf of the landlord that assuming that the tenant was using some of the open land but by that itself he has no right to put up any construction on the open land and/or he can claim any tenancy right on the same. It is submitted that as such the learned Appellate Court has rightly considered that for the entire premises inclusive of the open land there could not have been the rent at Rs.16/ per month. Therefore, it is submitted that no illegality has been committed in permitting the landlord to put up the construction on the open piece of land and restraining the tenant from putting up any construction / kachcha construction on the open land which is not a leased/tenanted premises.
Making above submissions, it is requested to dismiss the revision applications preferred by the tenant and allow the revision applications preferred by the landlord.
[11.0] Heard learned advocates appearing on behalf of respective parties at length and perused the impugned judgment and order passed by both the Courts below as well as considered the entire evidence on record from the Record & Proceedings received from the learned trial Court.
[11.1] At the outset it is required to be noted that the present revision applications can be bifurcated into two groups, one Revision Applications filed by the landlord against the judgment and order passed by the learned Small Causes Court, at Ahmedabad dismissing the suit preferred by the landlord for eviction decree on the ground of arrears of rent; nuisance; bonafide personal requirement of the landlord and another group is with respect to Revision Applications filed by the tenant with respect to the kachcha room and the open land on the rear part and western side of the premises of the compound whereby the tenant is restrained from putting up any construction on the said land and the tenant is restrained from obstructing the landlord from putting up any construction on the open piece of land by holding that the tenanted premises is consisting of only one room, otta and kitchen and the open land on the rear part / western side of the premises of the compound is not a tenanted premises.
[11.2] Now, so far as the Revision Application preferred by the landlord against the judgment and decree passed by the learned trial Court confirmed by the learned Appellate Court refusing to pass the eviction decree is concerned, at the outset it is required to be noted that there are concurrent finding of facts given by both the Courts below and on appreciation of evidence that the tenant is not in arrears of rent and that the nuisance has not been proved. There are concurrent finding of facts given by both the Courts below that the landlord has failed to prove that the tenanted premises is required by him for his personal use and occupation. So far as the arrears of rent is concerned, it has come on record that the tenant has preferred the standard rent application and he has deposited the entire arrears of rent in the said application. Considering the aforesaid facts and circumstances of the case, when the learned Small Causes Court has refused to pass the eviction decree on the ground stated in the suit and the same is confirmed by the learned Appellate Court, the same are not required to be interfered by this Court in exercise of revisional jurisdiction. Under the circumstances, Civil Revision Application No.639 of 2000 preferred by the landlord deserves to be dismissed.
[11.3] Now, so far as the Civil Revision Applications preferred by the tenant with respect to the open land on which there is a kachcha ordi and the open land on the rear part/western side of the premises of the compound and of the compound is concerned, the learned Appellate Court on appreciation of evidence has held that the tenanted premises is consisting of only room and kitchen and otta and at the monthly rent of Rs.16/. On considering the entire evidence on record which has been discussed by the learned Appellate Court even this Court is also of the opinion that the tenanted premises let to the tenant is consisting of only one room and kitchen and otta on the western side and that the open land on the rear/western side of the premises and of the compound has not been let to the tenant. Even considering the definition of 'premises' of the Bombay Rent Act, it cannot be said that the open land adjoining the tenanted premises within the compound on the rear part/western side of the premises can be said to be appurtenant and the same can be said to be the tenanted premises at all. Merely because the tenant might be using the same by that itself cannot be said that even the said open land has been let to him and/or is a tenanted premises. Under the circumstances, in the facts and circumstances of the case, the decision relied upon by the learned advocate appearing on behalf of the tenant on the appurtenant land and the tenanted premises would not be of any assistance to him. Under the circumstances, as such no illegality has been committed in granting the permanent injunction against the tenant restraining him from putting up any construction on the open land and construct kachcha cabin and no illegality has been committed in granting permanent injunction restraining the tenant from obstructing the landlord from putting up any construction on the open land on the rear part / western side and no illegality has been committed in permitting the landlord in putting up the construction on the same. It is to be noted that as such the learned Appellate Court has also passed the order directing the landlord to manage for ingress and egress of the tenant to the suit premises as well as use of latrine situated on south – west corner of the compound. No interference of this Court in exercise of the revisional jurisdiction against the impugned common judgment and order passed by the learned Appellate Bench of the Small Causes Court is warranted. Hence, even the revision applications preferred by the tenant deserve to be dismissed.
[12.0] In view of the above and for the reasons stated above, all these Revision Applications i.e. Civil Revision Application No.639 of 2000 preferred by the landlord as well as Civil Revision Applications No.325 of 2000 to 328 of 2000 preferred by the tenant deserve to be dismissed and are, accordingly, dismissed. Rule is discharged in each of the Civil Revision Applications. No costs.
(M.R. Shah, J.) Menon