JUDGMENT
M.S. Ratnaparkhi, J.
1. The petitioner Sakharam Magnaji Mitkar challenges the order passed by the District Judge, Beed, in Rent Appeal No. 7 of 1977, confirming the order of eviction passed by the Rent Controller on 10-5-1977 evicting the tenants from the suit property and directing to hand over vacant possession of the property to the plaintiffs.
2. The facts giving rise to this litigation maybe briefly stated as follows:-
Survey No. 227 admeasuring 2 acres 6 gunthas and Survey No. 37 admeasuring 1 acre and 1 gunthas previously belonged to Dattu Ramji and his brother Deorao. Deorao had one-fourth share in Survey No. 227, whereas, the remaining land in Survey Nos. 227 and 37 belonged to Dattu Ramji. The plaintiffs purchased the share of Deorao and they became the exclusive owners of the property. Admittedly, this land was leased out to defendant No. 1 for a period of 51 years under two registered lease-deeds one dated 27th Teer 1352 Fasli and 17 Farwardi 1352 Fasli on the annual rent. It is not now disputed that defendant No. 1 became the exclusive lessee of this property. There was none cattle-shed standing in this land. But this cattle-shed was not the subject matter of lease. It was only the land which was leased out. The lease was for 51 years and it was for the purposes of constructing and running a Ginning and Pressing Factory and for no other purpose. It was also agreed between the parties that the lease was to remove the building and restore the land to the lessor in cultivable condition. The terms of the lease are not disputed by the contesting parties at this stage. It is also not disputed that the lease was only in respect of the land and not in respect of the building standing thereon.
3. It was the case of the plaintiffs that the defendant No. 1 subsequently transferred the lease hold rights in favour of defendant No. 2 without their consent. Defendant No. 2 transferred some interests in the lease-hold property in favour of defendant No. 4 Suresh. It is the case of plaintiffs that the lessee defendant No. 1 was always in arrears of rent and therefore, they had to file two suits. Regular Civil Suit No. 103/63 and Small Causes Suit No. 6/1966, for the recovery of rent for the period from 1961 to 1965, respectively. Both the suits were decreed. The present controversy does not relate to the rent prior to 1966.
4. According to the plaintiffs, the lessee remained in arrears from 1966 always. He also transferred the lease hold right to defendant No. 2 without their knowledge and thus, created unnecessary charge on the property demissed under the lease. Defendant No. 1 is in illegal possession of suit premises. It is specifically pleaded that defendant No. 1 had taken the property on lease for the specific purpose of setting up a Ginning and Pressing Factory. The factory is no more there. Defendant No. 1 has sold the factory to defendant No. 2 and defendant No. 2 has removed the machinery and dismantled the factory building. The plaintiffs therefore, terminated the tenancy of defendant No. 1 and filed a suit for eviction. However, the suit was dismissed on the ground that there was no proper notice. The plaintiffs, therefore, issued a proper notice on 23-6-1967 to defendant No. 1 and the occupy thereof was sent to defendant No. 2. Inspite of the notice, defendants refused to deliver the possession. Hence, this suit for eviction has been filed. The suit has been filed in the Court of Rent Controller, Beed. The grounds on which the eviction has claimed was (1) that there was unauthorised sub-letting; (2) that defendant No. 1 was a wilful defaulter and (3) that the defendants had damaged the property extensively so much so that the value of the property has been diminishing.
5. Defendant No. 1 did not contest the claim. Defendant No. 2, however, contested the claim on the ground that the lease was only in respect of the land and not building and therefore, the Rent Controller has no jurisdiction to order the eviction. It was the main ground on which the suit was resisted. The other grounds namely; that defendant No. 1 was a wilful defaulter, that he had illegally sub-let the suit land that the property was extensively damaged were denied. This suit was instituted in 1967. There was four defendants to this suit. Defendant No. 1 was the original lessee. Defendant No. 2 was the subsequent assignee under the lease, defendant No. 3 was a formal party and defendant No. 4 was the transferee of a part of the property in dispute from defendant No. 2.
6. Defendant No. 4 also filed his written statement and admitted that he is in possession of a strip admeasuring 104 x 100 ft. However, according to him, this strip is neither from Survey No. 227 nor from Survey No. 37. According to him, the suit is of a civil nature and therefore, the Rent Controller has no jurisdiction.
7. The learned Rent Controller initially held that he had no jurisdiction to try this suit and therefore, he rejected the plaint. This order was challenged before the District Judge, Beed, vide Rent Appeal No. 3 of 1970. The appeal was ultimately heard by the Assistant Judge, Beed, who set aside the order of the learned Rent Controller and remanded the matter for disposal according to law. It is interesting to note that the learned Assistant Judge framed eight issues and directed the Rent Controller to decide these issues.
8. The matter again went before the Rent Controller. He made the necessary enquiry and by his order dated 10-5-1977 ordered the eviction of all the defendants on all the counts. This order of eviction was challenged before the District Judge, Beed, in Rent Appeal No. 7 of 1977. The jurisdiction of the Rent Controller was also challenged in this appeal. However, the learned District Judge held that the Rent Controller had jurisdiction. He also confirmed other findings of the Rent Controller and dismissed the appeal on 28-1-1982. It is this order which has been challenged before this Court. It may be pointed out at this stage that defendant No. 2 Sakharam filed a separate writ petition which has been registered as Writ Petition No. 117A/82, whereas, defendant No. 4, Suresh filed a separate petition which has been registered as Writ Petition No. 208-A/82. As both these petition arise out of the same order, I propose to dispose of both these petitions by this common judgment.
9. The original landlord Dattu son of Ramji died and his legal representatives were brought on the record. These representatives and original plaintiff No. 2 Digamber are the respondents Nos. 1 and 2 in Writ Petition No. 117A/82. They are represented by Mr. P.R. Deshmukh, Advocate. Mr. Deshmukh raised an objection to the maintainability of this petition. According to him, the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954, (hereinafter referred to as the Hyderabad Rent Control Act) provides a self-contained machinery including the forum for appeal and revision. The order passed by the Rent Controller is appealable and appeal lies to the district Judge. Similarly, under section 26 of the Act a revision lies to the High Court against the order passed by the District Judge. It was urged that there being a statutory revision of remedy open to the petitioner, he ought to have pursued that remedy only and the present petition (without pursuing the remedy available under law) is incompetent and this Court would not be justified in exercising its extra-ordinary jurisdiction in these circumstances. It is true that the Hyderabad Rent Control Act does provide a remedy of revision against the order passed by the District Judge. It is also true that the remedy of revision has not been pursued and the petitioner had directly come before this Court invoking the extra-ordinary jurisdiction under Article 227 of the Constitution. It was, however, urged by the petitioners in both the petitions that the remedy of revision available under the statute does not necessarily limit the powers of this Court in exercising its extra-ordinary jurisdiction under Article 227 of the constitution. It was urged that substantially the remedies do not differ. Particularly in the present case, the order passed by the trial Court and the lower Appellate Court have been challenged on the point of complete lack of jurisdiction and this can be considered by this Court under Article 227 of the Constitution as well as under section 26 of the Hyderabad Rent Control Act. It was further urged that the revision also lies before the High Court and therefore, the forums for enforcing both the remedies are the same. Mr. B.N. Deshpande, learned Counsel for the petitioner, urged before me and quite strenuously, that the objection is more academic than substantial. According to him, he has approached this forum which can consider his case either under section 26 of the Hyderabad Rent Control Act or under Article 227 of the Constitution. The form of the petition is not very material, inasmuch as, the substance therein permits this Court to consider the matter either way. There appears to be considerable substance in this submission, inasmuchas, this Court as a High Court can entertain revision under section 26 of the Hyderabad Rent control Act and also it can entertain the petition under Article 227 of the Constitution. Mr. Deshpande urged before me that at the most of remove the technical objection he would request this Court to treat this writ petition as revision and to proceed accordingly. It is not doubt true that this Court can treat this writ petition as revision or at least in the alternative it can permit the petitioner to convert the writ petition into revision. The authority reported in Pandurang S/o Vasudeo Goverdhan v. Kadappa S/o Sadashivrao Sherkhane, is a good guide on this point.
10. It was next contended by the learned Counsel for the respondents that when a regular remedy of revision is available to the petitioners, this Court should not exercise its extra-ordinary jurisdiction. My attention was invited to Ramji and others v. Gautamchand, 1986 Mh.L.R. 356 where this Court has held that when the remedy of revision is available under the statute, this Court should not normally exercise its jurisdiction under Article. 227 of the Constitution. The principle laid down is salutary and that principle shall have to be followed. However, it must be said that one remedy is not the exclusive of the other. One remedy does not exclude the other and in proper cases the extra-ordinary jurisdiction can be exercised. The only salutary principle is that this Court would be slow in exercising its extra-ordinary jurisdiction particularly when to her remedies available under the statute are not pursued and exhausted. But it does not necessarily mean that there is a bar to the exercise of jurisdiction by this Court. It would, therefore, permit the petitioners in both the petitions to convert the writ petition into revisions.
11. The controversy raised in this litigation covers a very narrow compass. It has been the main contention of the petitioners in both these revisions that the is which has given rise to this litigation is not in respect of the property which is covered by the Hyderabad Rent Control Act and therefore, the Rent Controller has absolutely no jurisdiction to proceed with the case and pass the eviction order. The main attack is based on complete lack of jurisdiction and not on any irregularity or failure to exercise jurisdiction on the part of the courts below. This being the substantial point and this point being one which this Court can justifiably deal with under its revisional powers as well as extra-ordinary jurisdiction, it deserves consideration at the hands of this Court in detail.
12. Before proceeding with the discussion of the real controversy, it will be proper to mention here as to what is the actual property which was the subject matter of demise. In the plaint the property has been described as Survey No. 227 admeasuring 2 acres and 6 gunthas and Survey No. 37 admeasuring 1 acre and 1 guntha, Beed. The lease-deeds have been filed before the trial Court and they can be found at page 127 and onwards in the record. It is also to be noted at this stage that there was a structure called a cattle-shed ( …..) on these lands. However, that structure has not been leased out. What has been leased is the open land comprising of survey Nos. 227 and 37. Admittedly, there were no other structures on the lands which has been the subject matter of demise. Whatever structure was there on the lands has been specifically excluded from the demise. The lease is only in respect of the lands and it was at the relevant time, that is in 1953 Fasli (corresponding of 1944 A.D.) was in respect of agricultural lands as it stood then. The property has been described as agricultural lands with the benefit of irrigation from the well. The land has been leased out for the purposes of erecting a Ginning and Pressing Factory. The annual rent has been fixed about which there is no dispute. The period of lease has been fixed at 51 years. On termination of the lease, the lessee has undertaken to put the lessor in possession of the land in cultivable condition and that too after removing the structure at the time of vacation,. These are the main conditions of the lease. It will not be out of place at this stage to go through paragraph 12 of the plaint wherein the plaintiff has specially stated as follows :
“That defendant No. 1 has taken the suit property on lease for a specific purpose of setting up a Ginning and Pressing factory. Now the said factory is no more as he had sold the same to defendant No. 2 who had removed all the machinery and dismantled the factory building.”
This shows that the lease was for the open land which was on the date of the lease an agricultural lands not coverted for non-agricultural purposes. The lease was for the purposes of Ginning and Pressing Factory. There was a specific contract of putting the landlord in possession of the land on the expiry of the lease in cultivable condition after removing the construction. There is a specific averment in the plaint that defendant No. 1 has sold the Ginning and Pressing Factory to defendant No. 2 and defendant No. 2 has removed all the factory machinery and dismantled the factory building.
13. This gives the idea as to what was the property that was demissed under the lease and what was the position of the property, at least according to the allegations in the plaint when the cause of action accrued and when the suit was filed. The plaintiffs sued for eviction of the defendants and for possession of the open land in cultivable condition, with a specific allegation that the factory was dismantled and machinery was removed. Thus on the date when they filed the suit, they come to the Court with a specific averment that the land was vacant and it is that land which they claimed possession of on the eviction of the defendant.
14. Relying of these averments in the plaint, Mr. Deshpande strenuously urged before me that the lease was not in respect of the building but it was in respect of the land which is not covered by the Hyderabad Rent Control Act. It is no longer in dispute that the Hyderabad Rent Control Act regulates and Controls the rent of houses and to prevent unreasonable eviction of tenants therefrom and further regulates the lease of houses in certain areas of the State. This is the Preamble of the Act. There is no dispute that the Hyderabad Rent Control Act is applicable only to the building and not the open land. ‘House’ has been defined in the Act which reads as follows:
“(b) “House” means any building or hut or part of a building or hut let or to be let separately for residential or non-residential purpose and includes—
(i) the gardens, grounds, garages and out-houses, if any, appurenant to such building or hut or part of such building or hut and let or to be let along with such building or hut or part therefore;
(ii) …..”
The Act thus covers the house which means a building or a hut or a part of the building or hut let or to be let separately for residential or non-residential purposes. The crux lies in the fact that it is the hut or the building or part thereof which is initially let out and if let out, the lease would embrace the grounds, gardens, out-houses appurtenant to such building or hut. What the law contemplates is the letting out of the building and then by fictional definition open lands appurtenant to the building are covered by the tenancy. It is thus clear that unless and until there is a letting out of the building, the lands or gardens appurtenant there to cannot be included in the building. Relying on this definition it was strenuously contended by Mr. Deshpande that what has been demised in the present case is the land and land only and not the building or part thereof has been demised under the lease. However, this argument did not impress the trial Court and the lower Appellate Court. But subsequently it appears to have been much impressed by the principles laid down in Palaniappa Chettiar v. Sabu Sahib alias Sheik Mytheen Sahib and others, 1964(1) Madras Law Journal 110; Manjulabai Krishnarao Gaikwad v. Sitaram Gopal Gokhale, 1972 Mh.L.J. Note No. 7; J.H. Irani and others v. T.S.Pl.P. Chidambaran Chettiar anothers, and Shahnavaz Begum and two others v. Potina Srinivasa Rao, . It appears that the learned District Judge has relied on these authorities without appreciating the real facts prevailing in those cases. In Palaniappa Chettiar’s case (cited above) the open piece of land was let out for raising the structures thereon. The structures were raised and thereafter they were let out to different persons. It is in these circumstances that the Madras High Court held :
“When a vacant site is leased out for putting up buildings thereon and buildings are actually put up on the land they become part of the land so that the land is also a part of the building with the result that the lease should be regarded as one of buildings, notwithstanding the fact that the buildings do not belong to the lessor. The principle does not depend on renewal of a lease, the essence of its being when the buildings are put up, they become the integral part of the land and the land for the purpose of lease can no longer be regarded as a vacant site. The lessee in possession of such a building becomes entitled to protection under the provisions of the Madras Buildings (Lease and Rent Control) Act.”
It may be pointed out at this stage that the provisions of the Madras Buildings (Lease and Rent Control) Act are pari materia similar to the provisions of the Hyderabad Rent Control Act as far as the definition of “building” is concerned. In J.H. Irani’s case (cited above) what was demised under the lease was the building with super structures standing thereon. In Shahnavaz’s case (cited above) the open land was leased out for the purposes of erecting a theatre on the site. It was provided in the lease-deed that after the expiry of lease the theatre should be dismantled and the vacant site should be delivered back to the lessor. However, further disclosure shows that there were some other super-structure standing on the land when it was demised. Thus, facts of these cases stand on a different footing as compared with the case before us. Admittedly, in the present case what has been demised is the land and only the land and nothing else. In other cases what has been demised is the land with already standing super-structures or the land leased out for raising structures thereon. Thus, on facts, the reported cases are quite different and therefore, the principles laid therein would not be applicable to the facts of the case before me. Reliance was also placed on Manjulabai’s case (cited above). However, the point of decision therein was altogether different, inasmuch as, this Court was considering the scope of the term “premises” which included the land. That principle also is not applicable to the present case.
15. The point which I am called upon to decide in this case had been before the Supreme Court in A.R. Slay Mohamed Sait etc. v. Jaffer Mohammed Sait’s Memorial Dispensary Charity and others, 1969(1) Andhra Weekly Reporter 16. In that case also open land was leased out. The suit for possession was brought in the Civil Court and one of the main defences in that suit was that in view of the provisions of Madras Buildings (Lease and Rent Control) Act, the ordinary Civil Court has not jurisdiction and the jurisdiction is exclusively vested with the Rent Controller. The claim for eviction and possession was decreed by the Civil Court and appeal was taken to the Supreme Court. The Supreme Court considered the principles laid down in 1964(1) Madras Law Journal 110 and and dis-approved the same. The Supreme Court observed:
“In order to determine whether the lease is of a vacant land or of a building within the meaning of the Act of 1960 we must take into account both the form and the substance of the transaction. In form the transactions in suit were leases of vacant land. The substances of the transactions points to the same conclusion. The lease of 1942 shows that the landlord was aware that there were certain structures on the land but what was let out was not the structures but the entire land of Ac. 2-00. It was within the right of the lessee to remove all the materials of the buildings and sheds which were erected on the land within 2 months after the date of the expiry of the agreement and the landlord was to have a charge thereon only in case of default of payment of the yearly rent. The structures belonged entirely to the leases and they did not form the subject-matter of the lease.
………….
It seems to us therefore that neither in form nor in substance was there a letting of any buildings. In the first case there were some structures of the land in 1941 but the landlord had no interest thereon and the tenant unless he made default in payment of rent could remove at any time within 2 months after the expiry of the lease, the building materials by demolishing the structures. In the second case, although the structures were to become the property of the landlord at the end of the term the letting was only of the vacant land. The landlord did not let out any building which could come within the mischief of the Act.”
The Supreme Court then came to the conclusion that what was leased was the only the land the lease was not covered by the Rent Control Act.
16. In Mst. Subhadra v. Narsaji Chenaji Marwadi, the Supreme Court held that in determining the character of the lease, what was material and important is the condition of the demised property on the date of the lease. If this authority is read in conjunction with the authority reported in 1969(1) Andhra Weekly Reporter 16, what comes out is that the condition prevailing on the date of lease would be material. From this point of view, we have to look to the present case. On the date the lease came to be executed, there was only land and no superstructures thereon which were let out to the party. The lease was for running a Ginning and Pressing Factory. There was further a specific condition imposed on the lessee that he would remove all the super-structures and rendered back the property in cultivable position to the landlord. Even assuming for the time being that the character of the leased property as prevailing on the date of cause of action is to be considered, there is a specific mention in para 12 of the plaint by the plaintiffs themselves that defendant No. 2 has removed all the machinery and dismantled the factory building. This is the statement of the plaintiffs and this is the property of which they claimed possession and eviction. Thus, according to the plaintiffs, on the date of lease there was no super-structure on the demised land. Even on the date when the eviction is claimed there was no super-structures on the land. What the plaintiffs state is that only the land was leased out and it is only the land which has been sought eviction from.
17. Looking from this angle I have no doubt in my mind that the learned District Judge has been totally wrong in his approach to the problem. Admittedly, there was no super-structure on the land which was demised. What the learned District Judge hunted at was that the land was leased out for raising structure of the Ginning and Pressing Factory. It is from this faint supposition that he has applied the principle laid down in the Madras cases. In fact, the Supreme Court has dis-approved all these cases in its judgment reported in 1969(1) Andhra Weekly Reporter 16.
18. There is one more point which was strenuously urged before me. As already pointed out, the suit was filed before the rent Controller in 1968 and by his order dated 13-1-1970, the Rent Controller rejected the plaint holding that he had no jurisdiction. This order of the Rent Controller was challenged before the District Judge vide Rent Appeal No. 3 of 1970. This appeal came to be heard on transfer by the Assistant Judge and the learned Assistant Judge by his judgment dated 23-11-1970 remanded the matter. Mr. Deshpande strenuously urged before me that the order passed by the Rent Controller on 13-1-1970 rejecting the plaint on the ground that he had no jurisdiction to entertain it has become final and therefore, the Rent Controller had no jurisdiction to proceed with the case after it was remanded by the learned Assistant Judge. This argument has been based on some valid reasoning. The Rent Controller’s order rejecting the plaint on the ground of lack of jurisdiction was admittedly appealable under section 25 of the Hyderabad Rent Control Act. The appeal lay to the District Judge. The District Judge, however, under the statute was persona designata and he alone had jurisdiction to decide such appeals. In the present case the District Judge, instead of deciding the appeal himself, has transferred the appeal for decision to the Assistant Judge who was not the persona designata and who had consequently no powers to decide the appeal. What was urged by Mr. Deshpande before me was that the Assistant Judge was acted without jurisdiction in disposing of this appeal and therefore, his decision is ab initio void and it has no legal force with the result that this decision has to be ignored completely. It is more or less an admitted position that the District Judge is a persona designata while acting under section 25 of the Act. It is he who has the powers to hear, entertain and decide the appeals. The Assistant Judge though the part of District Court with the concurrent jurisdiction alongwith the District Judge under the Bombay Courts Acts cannot be a substitute far the District Judge, as far as the appeal under section 25 of the Hyderabad Rent Control Act is concerned. This position has not been disputed and therefore, irrespective of the consequences, it shall have to be said that the decision of the learned Assistant Judge is without jurisdiction. What Mr. Deshpande urged before me was that when the decision of the learned Assistant Judge was without jurisdiction, it was beyond the competence of the Rent Controller to take fresh cognizance and to decide the matter afresh after the remand order passed by the learned Assistant Judge. Thus, according to him, all the subsequent event namely; the enquiry made by the Rent Controller, the order of eviction passed by him, the appeal entertained by the District Judge under section 25 of the Act and confirmation of the order of the trail Court made by the District Judge by his final judgement all are void and they have to be ignored. The other part of his argument was that the initial order passed by the trial Court on 13-1-1970 rejecting the plaint on the ground that he had no jurisdiction to entertain it has remained as a final order and therefore, the valid order which is on the record today is the order passed by the Rent Controller on 13-1-1970 adjudicating that he had no jurisdiction. Though there is considerable substance what Mr. Deshpande says, it cannot be lost sight of that 16 valuable years have lapsed since then and the parties have gone to trial and the Courts have passed different orders which have been the subject matter of challenge in this litigation. It is true that the order of Assistant Judge passed on 23-11-1970 was without jurisdiction. What the learned Assistant Judge has done in that case is worth noting. He has not decided any substantive question of law or fact. He has not recorded any finding either of fact or of law. He has simply set aside the order of the Rent Controller and remanded the matter with a direction to the Rent Controller to dispose of the case afresh. Thus, there being no substantive finding of law or of fact for and against any of the parties, and the order of the Assistant Judge having not been challenged before the appropriate forum we should accept the further proceedings. No prejudice has been caused to any party. Both the authorities have given proper opportunity. The parties have led before the Court whatever they wanted to lead. The issue about jurisdiction of Rent Controller was open and plaintiffs and defendants both went to trial. The issue is still wide open and this Court has been called upon to decide that issue. I would therefore, not agree with the view that further proceedings before the Rent Controller were all void and that the order of the Rent Controller passed on 13-1-1970 is the final order. The parties by their subsequent conduct have taken the benefit of the remand order and they have taken all the benefits which they could seek under the order while conducting their respective cases before the Court. I find myself unable to accept the arguments of the learned Counsel for the respondents also when he urged that by not challenging the order of the Assistant Judge before the High Court, the tenant is now estopped from challenging the jurisdiction of the Rent Controller.
19. Thus, what is apparent from the record is that the subject matter of lease was only the land and not any structure raised thereon. This lease did not fall within the ambit of the Hyderabad Rent Control Act because what has been leased out was the land and not the building. This being the case, the Rent Controller has no jurisdiction to entertain this case. The trial before the Rent Controller and the subsequent order of eviction are thus the acts without jurisdiction and therefore, the order has to be set aside.
20. In view of my finding that the order of eviction is bad and without jurisdiction, other points in controversy need not be considered.
21. In result, the petitions are allowed. The orders passed by the Rent Controller directing the eviction of the defendants and subsequently confirmed by the learned District Judge are hereby quashed and the suit of the plaintiffs is dismissed on the ground that the Rent Controller has no jurisdiction. Rule is made absolute. In these circumstances of the case there shall be no order as to costs.