JUDGMENT
N.V. Dabholkar, J.
1. Since execution proceeding is required to be stayed because of pendency of challenge to rejection of application under Section 47 by judgment debtor, the parties agreed and accordingly the revision petition was finally heard.
This revision petition impugns order dated 21-3-2002 passed below Exhibit 47 in Regular Darkhast No. 94/1999 by Civil Judge, Junior Division, Shrirampur.
2. In the execution proceeding numbered as Regular Darkhast No. 94/1999, decree for possession passed in Regular Civil Suit No. 366/1985, which was agitated and ultimately confirmed right upto the Supreme Court, is being sought to be executed. After service of notice under Order 21, Rule 22, present revision petitioner/original judgment debtor, on 9-3-2002 filed an application under Section 47 of the Code of Civil Procedure, inter-alia, contending that the judgment debtor did not agree to the prayer for possession, except the properties described as 1-A and 1-C in the schedule to the execution proceeding.
According to judgment debtor, in the plaint of Regular Civil Suit No. 366/1985, decree holder had specifically pleaded that property described in plaint para 1-B and open space in the plots described in plaint para 1 were owned and in possession of the landlord. It was categorically pleaded that open space was not subject matter of the dispute. It was further pleaded by plaintiff that he had kept a passage in the eastern portion of the plot in order to approach southern open space and defendant had closed the said passage by parking goods trucks on the same. Defendant was alleged to have obstructed the passage also by putting a gate under lock and key to the said passage. It was further alleged that room described in plaint para 1-D was constructed by the defendant and defendant continued to use the same unlawfully.
Thus, as per the pleadings, open space in the plot described in plaint para 1 and property described in plaint para 1-D (small room – cum servant’s quarter allegedly constructed by defendant), were not the properties let out to the defendant. Therefore, the plaintiff could not have prayed for possession of these properties from the defendant in the capacity of a tenant, nor plaint was ever amended to that effect, till final decision of the suit. Consequently, trial Court had no jurisdiction to pass a decree regarding open space described in plaint para 1 and property described in plaint para 1-D. The decree passed by the Court to that extent is, therefore, without jurisdiction and hence nullity.
The application was concluded by informing that the defendant/judgment debtor has given an undertaking to deliver the possession of the properties described in plaint para 1-A and 1-C on or before 20-2-2002. However, it is necessary to adjudicate whether decree can be executed so far as open space of the plots described in plaint para 1 and property described in plaint para 1-D.
3. After taking into consideration say filed by decree holder, executing Court rejected objections raised by judgment debtor vide impugned order dated 21-3-2002. The executing Court observed that suit is decreed by trial Court directing the judgment debtor to deliver possession of suit properties 1; 1-A, 1-C and 1-D.
In fact, in application under Section 47, the words,
^^c[ky tkxk o**
from the sentence
^^R;keqys nkO;krhy uewn c[ky
tkxk o dye 1&M ;k feydrhckrr >kysyk gqdweukek gk es- dksVkZps vf/kdkj
d{ksckgsjhy fonkV T;qjhlMhD’ku vlY;keqys rks uyhVh vkgs—**
are deleted by erasion. his is in the latter half of para 3 at page 2 of the application and yet at the end of para 3, handwritten contents are added as
^^c[ky tkxk _.kdksP;k dCtkr vkgs-**
Consequently, executing Court has discussed the objection as if it is objection to claim for delivery of possession of property described in plaint para 1-D.
From the contents of application under Section 47 and plea of the judgment debtor that he is ready and willing to deliver possession of properties described in plaint para 1-A and 1-C only, it is evident that application under Section 47 of Civil Procedure Code filed by judgment debtor is an objection raised to the delivery of possession of the property described in plaint paras 1 and 1-D. This position was admitted by Advocates S/Shri S. D. Kulkarni for judgment debtor and M. N. Nawander for the decree holder. The two Advocates also agreed that the reasons recorded by the Judge, although referred to only property 1-D, those are pertaining to properties 1 and 1-D.
The decree passed by trial Court was agitated in appeal before District Court, by a writ petition before High Court, and also Special Leave Petition before the Supreme Court, which all came to be dismissed. Consequently, the decree passed by the trial Court is not at all modified or revised. Executing Court, therefore, expressed inability to agree with the contention of the judgment debtor that other properties than those described in paras 1-A and 1-C were not the subject matter. In fact, according to learned Judge, property described in para 1 of the plaint including vacant premises was the property let out to the judgment debtor. The entire property described in the plaint, except 1-B, being the properties in question, according to executing Court, it was not open for judgment debtor to contend that part of decree passed was nullity for want of jurisdiction. The learned Judge, thus, rejected the objections raised and directed issuance of possession warrant against the Judgment debtor.
4. Regular Civil Suit No. 366/1985 was filed by deceased Shantilal (whose legal, heirs are now on record as plaintiffs and henceforth referred to as “landlord” for the sake of brevity) against Ellora Furniture Mart and Narayanbhai Gowardhanbhai was then sole proprietor of the business. Present legal heirs of Narayanbhai are on record as judgment debtors/revision petitioners and are being referred to as “tenant” for the sake of brevity. Plaint para 13-A prayed for possession of the property described in plaint paras 1, 1-A, 1-C, 1-D as follows :
^^nkO;kr oj uewn dsysY;k loZ
dkj.kklkBh izfroknhph Vsulh VekhZusV dsyh] >kyh o dk;|kys laiq”Vkr vkyh
vlY;kus oknhl nkok iSjk ua- 1] 1v 1&d 1M ;kr o.kZu dsysY;k feydrhpk
p izfroknh nkpkosy R;k] gDdkiSdh feydrhpk izR;{k fuosZ/k dCtk ekyd ukR;kus oknhl
izfroknhiklwu feykok-**
Prayer clause (B) contained in plaint para 13 also prayed that the possession should be delivered by demolition of all constructions carried out by the tenant in the properties 1, 1-A, 1-C, 1-D and by bringing the properties to the original state, when those were let. In fact, plaint para 13-C also prayed for possession of the space and structures over which tenant claimed rights, although beyond tenanted promises.
In the plaint, property is described in five parts. In para 1, whole the property bearing City Survey Nos. 1226 and 1227 totally admeasuring 10 Gunthas and numbered as final Plot No. 973 under town planning scheme was described. Plaint para 1-A describes godown admeasuring 60 ft. north south x 30 ft. east west. Plaint para 1-C describes a shed covered by tin sheets admeasuring 60 ft. north south and 18 ft. east west, to the east and adjoining property described in plaint para 1-A. Plaint para 1-D describes the same to be a temporary shed in the south east portion of plot described in plaint para 1.
Property described in plaint para 1-B is admittedly in the possession of plaintiff and even now there is no dispute about the same.
Plaint para 2 is of crucial importance, which has been relied upon by the judgment debtor in order to raise his objections and the same reads as follows :
^^oj iSjk ua- 1] uv]
1c] 1d] 1M ;kr o.kZu dsysyh feydr oknhps Hkkydhph vkgs- R;kiSdh nkok
iSjk ua- 1c gh i=;kph ‘ksM o nkok iSjk ua 1 ;kr o.kZu dsysyh IykWV tkxsiSdh
c[ky gh oknhps izR;{k dCtkr ekydh gDdkus vkgs- R;k feydrhpk o nkO;kps oknh’kh
laca/k ukgh-**
As can be seen from plaint paras 3 to 9, landlord claimed possession of the suit premises on various grounds i.e. change of user, material alteration by erecting permanent construction, nuisance, and bona-fide requirement for personal use. Suit was decreed by Joint Civil Judge, Junior Division, Shrirampur, vide judgment and order dated 31-8-1988 on all counts under Sections 13(1)(b), (g) and (k) of Bombay Rent Act i.e. material alteration by erecting permanent structures, bona-fide requirement for personal occupation and premises not being used, without reasonable cause, for the purpose for which those were let for a period exceeding six months. Although Judge recorded finding on issue No. 1 that plaintiff has proved godown 1-A and open space 60 x 18 ft.; 1-C to be the tenanted premises, learned trial Judge passed a decree for possession of all the properties described in paras 1, 1-A, 1-C and 1-D of the plaint.
The matter was taken before District Court in Regular Civil Appeal No. 424/1988, which was heard and disposed of by Additional District Judge, Shrirampur, vide judgment and order dated 5-8-2000. While dismissing the suit, learned appellate Judge held that defendants have changed the use of suit property, they have carried out construction of permanent nature over the suit property and the landlord bona-fide requires the suit property for personal occupation,
The matter was brought by the tenant before this Court in Writ Petition No. 3899/2000. While dismissing the writ petition by its judgment dated 6-12-2000, this Court confirmed the decree for possession on the ground of bona-fide requirement for personal occupation i.e. Section 13(1)(g) of Bombay Rent Act and observed that decree for eviction under Section 13(1)(b) and 13(1)(k) was not sustainable.
Tenant also approached the Supreme Court by Special Leave Petition No. 2300/2001, which was dismissed by order dated 12-2-2001 and tenant was directed to vacate the premises in question on or before 20-2-2002. He was allowed to occupy the suit premises till then subject to payment of regular rent as in the past and subject to filing of usual undertaking before the executing Court within four weeks from the date of that order.
Consequent to this order, tenant has filed an undertaking on 9-3-2001 before the executing Court, copy of which is made available at Exhibit I. He has undertaken to give vacant possession of premises described in plaint paras 1-A and 1-C of Regular Civil Suit No. 366/1985, those being the premises in question. In the said undertaking, it is also pleaded that relief in respect of para 1-D was not within the jurisdiction of Court and decree passed in respect of the same is nullity. Even in this undertaking along with 1-D, the words “and vacant plot” typed at as many as three locations in the undertaking appear to have been scored out by pen.
The decree holder has endorsed his say that the undertaking is not in conformity with the directions of the Hon’ble the Supreme Court and, therefore, possession warrant for all the properties may be issued against the tenant.
5. On reference to application under Section 47, as presented before the trial Court, the undertaking filed on 9-3-2001 pursuant to the directions of the Apex Court and the arguments before this Court by learned counsel Shri S.D. Kulkarni for the judgment debtor, tenant appears to contend that properties described in plaint paras 1-A and 1-C only were the properties let out to the tenant and, therefore, open space from CTS Nos. 1226/1227 described in plaint para 1 and small room described in para 1-D are not the tenanted properties. Regular Civil Suit No. 366/1985 was dealt with by Civil Judge, Junior Division, in his capacity as a Rent Court. Since properties 1 and 1-D were not tenanted properties, decree passed by the Rent Court pertaining to those properties is decree without jurisdiction and hence nullity and, therefore, inexecutable to that extent even though confirmed right upto the Supreme Court.
According to Advocate Shri Kulkarni, although decree might have been confirmed in first appeal, writ petition and special leave petition, subsequent Courts are superior Courts of the Rent Court and if the Rent Court suffered from inherent lack of jurisdiction to pass the decree for possession relating to properties described in plaint paras 1 and 1-D, confirmation of the said decree of superior Courts does not confer legality upon the decree nullity passed by the trial Court. According to him, the decree to the extent of properties 1 and 1-D is, therefore, nullity and cannot be executed. The tenant, to the extent of his possession over those properties is a trespasser qua landlord and the landlord may have to approach regular civil Court for possession of the same.
6. On reference to description of the property in plaint paras 1, 1-A, 1-C and 1-D in the light of contents in plaint para 2, reproduced verbatim hereinabove, the argument of learned counsel Shri Kulkarni appears to be very attractive. In fact, Advocate Shri Kulkarni has laid heavy emphasis on the judgment of the trial Court and more particularly reasons for affirmative finding on issue No. 1. Trial Court, for the reasons discussed in paras 21 to 25, has recorded an affirmative finding on the issue “whether plaintiff proves that tenanted premises consist of warehouse and open space admeasuring 60 x 18 ft.?”
On reference to discussion in para 22, it is evident that as against the pleading of the plaintiff that warehouse (godown) and open space to the east of the same admeasuring 60 x 18 ft. was leased out to the defendant, the tenant had contended that open spaces on the eastern and southern sides of the warehouse were also part and parcel of the lease agreement.
According to tenant, shed in the eastern portion and servant quarter in the southern portion were in existence when the parties entered into an agreement of lease.
The learned trial Judge, thus, believed that the parties were at variance and controversy regarding what were the premises let to the tenant under agreement of lease and after considering the evidence on record, which included oral evidence of Kaushik son of defendant Narayanbhai as also couple of rent receipts produced at Exhibits 116 and 117, learned trial Judge arrived at a conclusion that only godown and open space to its east were the tenanted premises. Admittedly, there is no written lease deed executed at the time of letting out the premises to the tenant. The contents in the notice Exhibit 43 to the effect that godown and open space appurtenant were interpreted by the learned trial Judge to mean as godown and open space to its east. Although reply to notice by defendant described godown and open space as property let to him, since boundaries of the open space were not described, learned trial Judge arrived at, a conclusion that only godown and open space to its east were the tenanted premises.
7. However, the matter does not end here. The tenant had persisted in pleading that not only godown and open space admeasuring 60 ft. north south x 18 ft. east west adjacent to the godown, converted into verandah (properties 1-A and 1-C), but all the open space surrounding those properties including property 1-D were subject premises of the lease agreement. This is demonstrated by landlord’s counsel Shri Nawander by producing copies of pleadings by the tenant at various stages of litigation.
In para 11 of the written statement before the trial Court (Exhibit H), defendant has pleaded,
^^ekdyh tkxk gh izfroknhdMs HkkM;kus gksrh gs
oknh lks;hLdjjhR;k fo;: igkr vkgs-**
In para 12 of written statement, it is pleaded that servants quarter or watchman’s room in the south east portion (property 1-D) of the plot is in existence since the days of Shri Zanvar, predecessor tenant of present defendants. Present tenant has taken the same premises as were let to Shri Zanvar, who was let even the open spaces and the servants quarter.
That defendants claimed to be tenants of also open spaces in property described in plaint para 1 and shed described in plaint para 1-D is more eloquent in grounds of appeal at Sr. Nos. 8 and 16 of the appeal memo of Regular Civil Appeal No. 424/1988 filed by the Tenant, which read as Follows:
“8. The learned lower Court has not properly interpreted and appreciated the rent receipts Exh. 117 and 118. The rent receipt does not specify that only eastern open space is let out to the tenant. On the contrary, rent receipt consists of godown and open space and naturally open space includes the open space to all the sides including the open space on the northern side. This fact coupled with the conduct of the plaintiff in not taking any objection since long for user of the same by the defendant suggests and falsifies the case of the plaintiff that entire open space and godown was (not) let out to the defendant.
16. It ought to have been held that southern side portion along with servants quarter thereon is also let out to the defendant.”
In grounds 9 and 13 also, there are contents indicating that tenant claimed all surrounding space to be part of demised premises.
Thus, it is evident, that parties were at variance and in dispute regarding the extent of premises those were let out to the tenant under lease agreement. That trial Court had accepted the contention raised by the plaintiff – landlord and recorded a finding that properties described in plaint paras 1-A and 1-C only were subject properties.
8. The tenant, who relied upon the contents of plaint para 2 and judgment of the trial Court paras 21 to 25 regarding finding as to which properties were the subject matter of the leases and, therefore, subject matter of the suit has approached this Court without producing a copy of appeal memo submitted by him before the District Court and copy of judgment delivered by the District Court while dismissing his appeal. As already pointed out from the copy of appeal memo, tenant defendant had persisted even before the District Court that all open spaces surrounding properties 1-A and 1-C as also property described in plaint para 1-D were part and parcel of properties leased to him. It was pointed out, by learned counsel Shri Nawander for the landlord, the tenant, who had, not entered the witness box before the trial Court, entered the witness box before appellate Court and his deposition was recorded on 19-4-1996 at Exhibit 57 in Regular Civil Appeal No. 424/1988. Defendant Narayanbhai then being aged 84 years and hence unable to attend the Court, his evidence was recorded at the residence by appointing a Court Commissioner for the purpose. As can be seen from the deposition of Narayanbhai, he is examined in order to prove three rent receipts, which indicated as to what were the premises let out to the tenant. These receipts have been exhibited Exhibits 60, 61 and 62 by the appellate Court. All the three receipts, executed by landlord, describe the property for which rent is tendered by tenant as
^^ek>s ekydhps Jhjkeiwj E;wuhlhiy ghrhr
E;wuhlhiy ?kj ua- 909 ;krhy xksMku o laiw.kZ fjdkeh tkxk rqeps dMs HkkM;kus
vkgs**
Appellate Court also considered the dispute regarding description of the property and although it recorded a finding that plaintiff has not proved the description of the suit property as stated, on reference to reasons for the finding on this issue in para 11 of the judgment, it can be seen that the appellate Court has accepted the version of defendant tenant, as to what is the leased property. Some contents from this para 11 of the judgment in Regular Civil Appeal No. 424/1988 need to be usefully reproduced hereinbelow.
“The defendant has stated in his written statement, the witness No. 1 for defendant Kaushik said, the whole property around the godown was leased, before him it was leased to earlier tenant Zanvar. So the dispute between the parties is about property around the northern western portion which is open land. Lower Court has held, along with godown only open
property of east, was leased to the defendant and no other property was
leased.”
“Narayan is examined at Exhibit 57.”
“Description of the suit property requires to be ascertained on the basis
of evidence on record. ….. The lower Court relied much for its
assessment on the rent receipts Exhibits 117, 118, notice Exhibit 43 and its reply by defendant Exhibit 44. It is admitted that contract of lease
between plaintiff and defendant was oral, no instrument about, creation of this lease was executed between the parties.”
“The defendant examined witness Zanvar who was previously possessing the suit property as its tenant. He said he was in possession of the godown and open space around that godown. The witness No. 1 for the plaintiff admitted that Zanvar was previous tenant of the suit property. In his cross-examination, he admitted the godown and open space around it was in possession of Zanvar and that property was leased to defendant.”
“The defendant has produced the rent receipt Exhibit 60 in which it is mentioned, the godown and open space surrounding it is leasehold property. If all this evidence is considered together, then it cannot be said that the godown and eastern open space was only leased to defendant.”
Upon considering all observations of the District Court reproduced hereinabove, it can be seen that while recording a finding that plaintiff has not established the description of the property, the learned appellate Judge has in fact observed that contention of the plaintiff that only properties described in plaint paras 1-A and 1-C were let out to the defendant is not correct, on the contrary, the pleading of defendant – tenant that godown and all open space around it is the leasehold property was acceptable.
9. Taking into consideration the finding recorded by the District Court that not only godown and eastern open space but godown and open space surrounding it is leasehold property the finding is capable of covering properties described in plaint paras 1 and 1-D as leasehold properties Advocate Shri Kulkarni has not been able to point out any modification in this finding either by this Court in Writ Petition No. 3899/2000 or by Hon’ble the Supreme Court, in Special Leave Petition No. 2300/2001. Because of the finding of the District Court that the godown and all the space surrounding it was the leasehold property the judgment debtor loses the foundation on which he has based his objections under Section 47 of the Code of Civil Procedure.
The objection of judgment debtor was that since open space described in para 1 and small tenement described in para 1-D were not the leasehold property, Civil Judge, Junior Division as Rent Court could not pass a decree for possession regarding those properties and the decree so passed suffers from inherent lack of jurisdiction and is, therefore, nullity. The finding recorded by District Court at the behest of defendant – judgment debtor, who got himself examined by appointment of Court Commissioner during the pendency of appeal before District Court and produced rent receipts showing that he was tenant also of the open space estops judgment debtor from claiming any part of the decree to be nullity.
As, can be seen from findings on issue No. 1 by the trial Court and point No. 1 by appellate Court, it was not a case of inadequate description of suit property or wrong description so that property could not be identified, but it was a dispute, if open space is part of rented premises and this dispute was settled by finding on point No. 1 by the District Court and more particularly by discussion of reasons in para 11.
10. Once this position is accepted, plethora of case law relied upon by learned counsel Shri Kulkarni becomes inapplicable to the matter at Hands. Kunheema Umma v. P. Balakrishnan, was relied upon for the principle that if Court rendering judgment suffers from want of jurisdiction, its judgment is nullity. The District Court having recorded a finding that open space was part of leasehold property. Civil Judge as Rent Court must be said to have had jurisdiction to para a decree for possession of the same.
In Union of India v. EID Parry (Ind) Ltd., 2000 AIR (Civ.), 266, it was observed that question, which does not form part of pleading or in respect of which parties were not at variance and which was not subject matter of any issue, could not be decided by the Court. 2001 SAR, 268, Makhan Lal v. Manas Bhunia laid down that framing or settlement of issues is to tie down the evidence and arguments and decision to a particular question so that there may be no doubt on what the dispute is. As already discussed, parties were at variance regarding which of the parties were leasehold properties. Both trial Court and appellate Court did consider the issue after framing a point for consideration for the purpose and the finding of District Court that even open space surrounding the godown is leasehold property is the final finding in the litigation.
Observations in Jaylaxmi v. Oswald, 2001 SAR 288, that pleading does not automatically form part of decree renders no assistance to judgment debtor because his pleading that even open space was leasehold property, which is upheld by the appellate Court has benefited the landlord.
There can be no dispute that question of nullity of decree under execution can be raised in execution and executing Court has powers to adjudicate upon the same 1996 SAR Supreme Court 561 – Urban Improvement Trust v. Gokul Narain, but as already observed, it was the pleading and evidence laid by the defendant – tenant that has obtained a finding that properties 1, 1-A, 1-B, 1-C and 1-D are all leasehold properties and, therefore, there is no question of any part of the property being beyond purview of Rent Court and consequently decree becoming nullity to that extent.
11. Advocate Shri Nawander for the decree holder has placed reliance on the observations of this Court in the matter of Shridhar v. Ankush reported at 1985 Mh.LJ. 246. In the reported case, landlord had sued the tenant for possession under Section 13(1)(b) of the Rent Act contending that defendant had unauthorisedly constructed bathroom in the rear side gallery of the suit premises. The learned counsel for the tenant argued before the High Court that trial Court was right, in holding that the structures and additions were not on demised premises and, therefore, the plaintiff has no right to claim eviction on that ground. In the opinion of the trial Court, the verandah and gallery were not part of the demised premises, being outside the area of demised premises. After considering the definition of word “premises” as given in section 5(8) of the Rent Act, this Court observed as follows:
“In my opinion, the appellate Court was right in coming to the conclusion that the portions of the building in which these constructions or additions are made, were the part of appurtenances of such building let out to the defendant. In this case, the reasonable interpretation of the expression on the ‘premises’ used in Section 13(1)(b) of the Bombay Rent Act will have to be given.”
It was further observed :
“The expression ‘on the premises’ used in Section 13(1)(b) of the
Bombay Rent Act should mean the premises let out to any tenant in
addition to the appurtenant and such other space of which he is taking
beneficial enjoyment for the proper use of the rented premises. Such
short space either of the gallery or Verandah being used by the tenant
must strictly be said to be demised premises let out to him.”
It was observed that whether premises appurtenant to the tenanted premises
as being used for beneficial enjoyment of tenanted premises can be said to be
tenanted premises, will depend upon the nature of the premises, extent of actual
user of the area beyond rented area and the actual beneficial enjoyment of that
area as part of user of rented premises. In the present matter, even if pleading of
the landlord is taken on its face value that grodown and open space to the east
was let to the tenant, it cannot be denied that the open space surrounding it was
being used for ingress/egress. It must have been used for parking whenever
material was fetched or dispatched, and occasionally also for dumping the
material when there was no room in the godown. Thus, it can be said that the
surrounding open space was under use of the tenant for beneficial enjoyment of
the tenanted premises.
In fact, observations in para 17 are capable of indicating that the term “premises” will have to be read in such a way that when a decree for possession of tenanted premises is granted, the tenant will have to face eviction from all appurtenances which were being used by him for beneficial enjoyment of tenanted premises, even though the appurtenances were not part and parcel of leasehold premises. In para 17, this Court observed as under :
“17. I agree with the view taken by the learned judges of the appellate Bench, of the Small Causes Court that the premises appurtenant to the rented premises are certainly part of the premises themselves let out to the tenant. In my opinion, the contrary view will lead to certain anomalies, for example, the tenant who is occupying the premises, is using the passage for going and if a decree is passed against him for delivery of possession of a room of which he is occupying, he may as well occupy the passage itself and says that the Rent Court has no jurisdiction to evict him, which situation I do not think is contemplated by the Legislature while using the expression erection of permanent structure on the premises.”
The analogy will, therefore, be applicable to other sub-sections of Section 13 and not only Section 13(1)(b). A tenant evicted from the tenanted premises will not be in a position to say that merely because he was storing material in the appurtenant area, he is encroacher in that area and decree by rent suit will not be capable of evicting him from appurtenant area and for that purpose, landlord will have to approach the civil Court by another round of litigation.
The test to be applied can be put in other manner. If the tenant is using any area beyond the demised premises, only as a result of being in possession of demised premises, such use cannot confer upon him status of a trespasser. The reason is, but for being a tenant in the demised premises, he would not have used the appurtenant premises. A rank trespasser is one who has no concern over the area and has still established his possession. Mere use of appurtenant area for beneficial enjoyment of demised premises by the tenant, cannot enable him to claim to be a trespasser of that area and oppose a decree for execution passed by Rent Court to the extent of appurtenant area.
Considering the interpretation of the term “premises” as laid down by this High Court as back as in 1985, the judgment debtor could not have claimed the decree to. be nullity to the extent of premises described in plaint paras 1 and 1-D, even in the absence of finding of District Court that those are also rented premises.
12. Advocate Shri Nawander has pointed out that the contention now sought to be raised was also raised by the revision petitioner in the special leave petition before the Hon’ble the Apex Court. Only ground (D) need to be reproduced in order to support the argument of Advocate Shri Nawander:
“(D) The suit is also barred by multifariousness and misjoinder of the causes of action. Because warehouse (30 x 60 ft.) and eastern vacant plot of 60 x 18 ft. was alleged to have been given on lease, therefore, possession of this part of suit property is claimed by eviction of tenant on the basis of landlord/tenant relationship from Rent Control Tribunal, whereas southern plot of 90 x 30 ft. was alleged to have been encroached by defendant and constructed rooms thereon without landlord’s concern (consent) and possession of this part is sought from civil Court under normal property law on the basis of title and Rent Control Tribunal exercising power under Section 28 of the Bombay Rent Act has no power to entertain civil suit for recovery of property on the basis of title. Therefore, suit should have been dismissed.”
It may be mentioned that in grounds (E) and (F) in the special leave petition, the tenant has also tried to make out a case as to how the description of the property is inaccurate and, therefore, suit should have been dismissed. The Supreme Court has dismissed special leave petition by observing “We find no merits in the petition and it is accordingly dismissed”.
Advocate Shri Nawander has placed reliance on the observations of the Supreme Court in Vasudev v. Rajabhai, in order to propound that, the objection that rent control Court had no jurisdiction to pass the decree because properties 1 and 1-D were not leasehold properties, could not have been raised before the executing Court under Section 47 of Civil Procedure Code. Shri Nawander has placed reliance on contents in para 7 of the judgment, which are to following effect:
“Again, when the decree is made by a Court which has no inherent jurisdiction to make objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record; where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction.”
In the reported case also, an objection was raised that Court of Small Causes had no jurisdiction to entertain the suit and its decree on that account was nullity. High Court of Gujarat had upheld this objection and dismissed the execution petition. While allowing the appeal and setting aside the order passed by the High Court, the Supreme Court observed that the question whether the Court of Small Causes had jurisdiction to entertain the suit depended upon the interpretation of terms of agreement of lease and the user to which the land was put at the date of grant of lease. These questions cannot be permitted to be raised in execution proceeding so as to displace the jurisdiction of the Court, which passed the decree.
In the present case also, in order to raise an objection that rent control Court had no jurisdiction, question of fact as to which premises were leasehold property is required to be discussed and as observed by the Supreme Court, the same issue cannot be allowed to be agitated before the executing Court. In the present case, said issue was raised and settled by the appellate Court and the finding of the appellate Court was not dislodged in spite of tenant approaching the High Court and the Supreme Court. The objection raised to the executability of the decree on the ground of want of inherent jurisdiction by application under Section 47 of Civil Procedure Code is, therefore, unsustainable.
13. For the reasons discussed above, the revision petition is required to be dismissed. The judgment debtor lost by dismissal of special leave petition on 12-2-2001. In obedience to the directions in special leave petition, he had filed an undertaking on 9-3-2001 and simultaneously filed objection petition under Section 47. In fact, judgment debtor was expected to deliver the possession by 20-2-2002. Thus, tenant was already granted time of nearly one year to vacate by Hon’ble the Apex Court. The tenant has not delivered the possession of the premises on or before 20-2-2002 as undertaken, not even of property described as 1-A and 1-C, which was not in dispute in spite of objection petition under Section 47. Although it is pleaded in the revision petition that possession is delivered, during the course of his arguments, Advocate Shri Kulkarni has informed that the tenant had tried to deliver the keys in the Court, but those were not accepted.
Tenant had proved by examining himself, during the pendency of appeal, on commission, at his own application that open space is also part of demised premises. He must be deemed to be aware of his pleadings at all stages, wherein he claimed to be tenant also of open space surrounding the godown. He cannot be considered unaware of the finding recorded by the District Court. Objection raised to the delivery of possession of portions open space and shed 1-D are, therefore, vexatious and hence while dismissing the revision petition, decree holder is entitled to exemplary costs.
The revision petition is dismissed. The Judgment debtor shall pay to the decree holder an amount of Rs. 3,000/- towards costs which shall be part and parcel of the execution proceedings and recoverable as such if not voluntarily tendered by the judgment debtor. Rule is discharged.