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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR
BENCH NAGPUR.
SECOND APPEAL NO. 96 OF 1996
AND
SECOND APPEAL NO. 242 OF 1998
SECOND APPEAL NO. 96 OF 1996
1. Rukhminibai wd/o Sadhuram Katiyari
aged 85 yrs., Occu. Household.
2. Govardhan Sadhuram Katiyari,
aged 35 yrs., Occu. Business.
Both residents of Sindhi Camp,
Arvi, Distt. Wardha. APPELLANTS.
VERSUS
Vijay Vithalrao Bijwe,
aged 34 yrs. Through Court
appointed guardian/next friend
Raju Vithalrao Bijwe, aged 38 yrs.,
Occu. Business, R/o Sindhi Market,
Tailor Line, Opposite Nagar Palika
Office, Arvi Distt. Wardha. RESPONDENT.
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SECOND APPEAL NO. 242 OF 1998
Kisan Teyumal Kodwani
aged 44 yrs., Occu. Business,
R/o Sindhi Coloney, Lokmanya
Ward, Arvi, Wardha.
VERSUS
Gulab Sadashivrao Kadave,
aged 49 yrs., Occu. Tailor,
R/o Sindhi Cloth Market,
Tah. Arvi, Distt. Wardha.
Shri. S. V. Purohit, Counsel for the appellant.
Shri. D. L. Dharmadhikari, Counsel for the respondents.
CORAM: C. L. PANGARKAR J.
Date: 21st AUGUST 2009.
ORAL JUDGMENT:
These two appeals can be disposed of by a common
judgment since the substantial questions of law are identical and the
dispute is also identical.
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2. The original plaintiffs have preferred these two appeals
they having lost before both the Courts.
3. The facts giving rise to these appeals are as follows:
A single set of facts is being narrated since the facts are
almost identical.
Both plaintiffs are the owner of wooden stall 9 X 7 Ft. in
an area known as Sindhi Market at Arvi. The said wooden stall is
located on the Municipal Land. The said wooden stall was let out by
plaintiffs to the defendants. It is their contention that the
defendants had agreed to pay rent of Rs.400/- P. M. The defendants
had agreed to vacate the said stall as and when required. The
defendants have not being paying the rent. The plaintiff therefore
issued a notice to the defendants calling upon the defendants to
vacate the said stalls and hand over the possession. Defendants did
not vacate, hence the suits came to be instituted.
4. Defendants resisted the suit and denied that the rent was
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Rs. 400/- P. M. They also deny that they have not paid the rent as
alleged. Their contention is that plaintiff was not even passing rent
receipts though rent was paid. Defendants also contended that the
said wooden stalls have been embedded in the earth and therefore
are governed by the provisions of C. P. & Berar Rent Control Order.
Suits could not therefore have been instituted without obtaining the
permission of the Rent Controller. The learned Judges of the trial
Court held that this property was governed by the Rent Control
Order and dismissed the suit. It was held that since the land
beneath the stall belonged to the Municipal Corporation the plaintiff
was not the owner of the stall. Holding so the suits were dismissed.
Appellate Court confirmed the finding. Hence these second appeals.
5. Second Appeal No. 96 of 1996 was admitted on 6
substantial questions of law. However the learned counsel for the
appellant/respondent agreed that the appeal may be heard on two
substantial questions of law i. e. 1 and 4.
1. In the face of the finding of the trial Court
to the effect that the suit property (Wooden
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Thela) is a movable property, whether the
Trial Court as well as the Lower Appellate
Court was justified in holding that the suit of
the appellant-plaintiff for possession of the
suit property was not maintainable as the
appellant-plaintiff had no obtained any
permission from the Rent Controller to
institute the suit?
2. Whether the Lower Appellate Court was
justified in refusing to consider the appellants
claim in respect of the arrears of rent and the
damages as claimed?
6. Second Appeal No. 242 of 1998 was admitted on following
two substantial questions of law:
I. Whether moveable wooden Thela which is
leased out by the appellant to the respondent
for running business is protected by the
provisions of C. P. & Berar Letting of Premises
& Rent Control Order, 1949?
II. Whether for terminating the tenancy of
moveable wooden Thela prior permission of
the Rent Control Authority is necessary?
I have heard the learned counsel for the appellant and the
respondent.
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7. In Second Appeal No. 96 of 1996 learned Judge of the trial
Court has made a very strange observation. In para 14 of the
judgment he observed that the suit property is a movable property
and therefore notice under Section 106 of the Transfer of Property
Act was not necessary. However in para 16 he relied on the
definition of the word “premises” in Rent Control order and held
that property is covered by that definition and dismissed the suit. If
it is a movable property, it is obviously not covered by the Rent
Control order.
8. In appeal No. 242 of 1998 also a very strange observation is
made by the learned Judge of trial Court. He observed that since the
land beneath the stall is not proved to be let out to plaintiff by
Municipal Council there could be no relationship of landlord and
tenant between plaintiff and defendant with regard to the wooden
stall. Plaintiff has specifically pleaded that wooden stall alone was
let out to defendants. The question as to whom the open land
belonged is absolutely immaterial . Only question that could have
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been considered is whether wooden stall was let out or not. The
learned Judge does not seem to understand even the basics.
Defendant does not even enter the witness box to rebut the
statement of plaintiff that he is a tenant of the plaintiff and the
adverse inference should have therefore been drawn against the
defendant. Learned Judge further seems to be swayed by the fact
that plaintiff in his evidence states that he also wants possession of
the land beneath the stall. This could have been ignored as having
not been pleaded but it could not be a ground to hold non existence
of relationship of landlord and tenant. Statement of the plaintiff in
the absence of the rebuttal by the defendant has to be accepted to
hold that plaintiff in Appeal no. 242 of 1998 was the landlord and
defendant was tenant.
9. In fact the material question that needs to be decided is
whether wooden stall could be said to be covered by the provisions
of C. P. & Berar Rent Control Order. Undisputed fact is that only
wooden stalls were let out to both the defendants. In Appeal No. 242
of 1998 it has come in evidence that the legs of the wooden stalls are
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embedded in cement platform. While in Appeal No. 96 of 1996 it has
come in evidence that the legs of the stall are embedded in the earth.
Learned counsel for the respondent contends that the fact that stall
is embedded in earth clearly goes to show that the stall becomes an
immovable property and therefore covered by the definition of
premises in the Rent Control Order. There is no manner of doubt
that in both the cases legs of the stall seem to be embedded in the
earth. Question is whether due to the fact that the legs are so
embedded the stall becomes premises within the meaning of
definition as given in C. P. & Berar Rent Control Order. To
determine this the definition of premises as given in C. P. & Berar
Rent Control order needs to be looked into. The word Premises is
defined thus:
“Premises” means,-
(a) any land not being used for
agricultural purposes,
(b) any building or part of a
building (other than a farm building) let or
given on licence [for residence or for the
purpose of practising any profession or
carrying on any occupation therein] and
includes,-
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(i) the garden grounds, garages and
outhouses, if any, appurtenant to suchbuilding or part of a building;
(ii) any furniture supplied by the
landlord for use in such building or part of a
building; and
(iii) any fittings affixed to such
building or part of a building for the more
beneficial enjoyment thereof;
but does not include a room or other
accommodation in a hotel or lodging house]
What is essential therefore is that it must be a building or a part of
the building. In no case a wooden stall can be termed as a building .
To my mind any structure can be called a building if it is not
portable. A wooden stall though its legs are embedded in the earth
for stability does not become a building for it can always be removed
and reinstalled at another place. It is brought in cross examination
of P. W. 2 Kamalnarayan in Civil Suit No. 289 of 1989 that a stall can
be shifted at any place. It is thus clear that both these wooden stalls
are movable and portable. They are, therefore, not premises to my
mind as covered by the definition in the Rent Control Order.
Consequently both stalls cannot be said to be governed by the C. P.
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& Berar Rent Control Order. Since both stalls can be treated as
movable property they do not fall within the scope of the Section 106
of the Transfer of Property Act also. Therefore there is no need to
even give notice under Section 106 of the Transfer of Property Act.
The occupation of the defendants therefore would become illegal
only from the date of institution of suit.
10.
In Second Appeal 96 of 1996 the appeal is admitted on the
question No.4 in it. The plaintiff’s case is that defendant has not
paid rent from 01.10.1986 to 31.03.1989 at the rate of Rs. 400/- P. M.
The defendant denies the arrears and also denies that the rent was
Rs. 400/- P. M. Neither party has lead any documentary evidence to
show what was the agreed rent. There is, therefore, only a word
against word. Story of the defendants that rent was only Rs. 125/-
P. M. appears to me to be more probable. Learned Judge of the trial
Court should have therefore passed a decree at least to that extent.
The plaintiff in Second Appeal No. 96 of 1996 would therefore be
entitled to rent for three years prior to September 1989 i. e. for 36
months only at the rate of Rs. 125/- which comes to Rs. 4500/-.
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11. As far as rent in the other appeal is concerned the said
appeal has not been admitted on that question of law. Hence I am
not considering the award of rent in that appeal. In the
circumstances, I proceed to pass the following order:
Both Second Appeals No. 96 of 1996 and 242 of 1998 are
allowed. The judgments and decrees passed by both the Courts
below in both the suits and appeals are set aside. Regular Civil Suit
No. 289 of 1989 is decreed. Defendant shall hand over vacant
possession of the suit property to the plaintiff forthwith. Defendant
shall pay to the plaintiff Rs. 4500/- . An enquiry into future mesne
profits be held from the date of suit till realisation of the possession.
Defendant shall pay costs throughout.
Regular Civil Suit no. 324 of 1989 is decreed. Defendant
shall handover the possession of the suit property to the plaintiff
forthwith. Enquiry into future mesne profits from the date of suit till
realisation of the possession be held. Defendant shall pay costs
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throughout to the plaintiff.
Decrees be drawn up.
JUDGE
svk
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