ORAL JUDGMENT:
1. Heard Ms. Anjali Vajpayee-Dube, learned counsel for appellants and Mr. P.R Katneshwarkar, learned counsel for respondent, at length.
2. By this appeal under section 100 of the Code of Civil Procedure, 1908 (for short ‘C.P.C’), original defendant has challenged the judgment and decree dated 31.01.1983 passed by the learned Jt. Civil Judge, Junior Division, Latur in Regular Civil Suit No. 467/1974 as also judgment and decree dated 30.09.1987 passed by the learned District Judge, Latur in Regular Civil Appeal No. 169/1983. By these orders, the Courts below decreed the suit instituted by respondent (hereinafter referred to as ‘plaintiff’) and directed appellants (hereinafter referred to as ‘defendants’) to handover possession of open space admeasuring 12 ft × 9 ft out of Municipal House No. 24/23, as more particularly described in paragraph no. 2 of the plaint (for short ‘suit plot’).
3. Relevant and material facts giving rise to filing of the present appeal are as under:-
(a) Plaintiff instituted suit contending inter alia that she is the owner of the suit premises and that defendant is in possession in the capacity of a tenant. Defendant is paying monthly rent of Rs. 17/-. Defendant failed to pay the rent and was in arrears of rent to the extent of Rs. 272/-. by issuing notice dated 26.03.1974, tenancy of defendant was terminated. It was further contended that even after receipt of notice, defendant had neither paid arrears of rent nor handed over possession. She therefore instituted suit for recovery of possession of the suit premises.
(b) Defendant resisted the suit by filing written statement at exhibit 11 contending inter alia that Gokuldas Baldava and Gulabchandji Baldava are the owners of shop bearing Municipal House No. 24, ward no. 23, situate at Hanuman Chowk, Ganj, Latur. Gulabchand had leased out the suit premises to defendant. Defendant does not know that plaintiff is the owner of the suit premises. Due to notice issued by Mr. Gulabchand Baldava directing him to pay rent to plaintiff, since last two years defendant is paying rent to plaintiff sometimes by money order. He has also deposited the agreed rent as plaintiff refused to accept. Defendant also denied all adverse allegations and prayed for dismissal of the suit.
4. On the basis of pleadings of the parties, the learned trial Judge framed necessary issues. Plaintiff examined herself as PW 1 at exhibit 27, as also Gulabchand Baldava as PW 2 at exhibit 30. Defendant entered witness box and was examined as DW 1 at exhibit 39.
5. On the basis of evidence on record, the learned trial Judge held that plaintiff proved that there is open space of house no. 24, ward no. 23 on the western side of the suit premises. It was also held that plaintiff has proved that tenancy of defendant was validly terminated. The learned Trial Judge over-ruled the objection raised by defendant as regards jurisdiction to entertain and try the suit and held that it has requisite jurisdiction. The learned trial Judge decreed the suit. Aggrieved by that decision, defendant preferred appeal which is dismissed by the learned District Judge. Aggrieved by these decisions, defendant instituted second appeal in this Court.
6. By order dated 08.12.1987, this Court admitted the appeal by passing following order:-
Admit.
Question of law formulated is:-
Whether the suit premises constitutes a house as defined in section 2(b) of Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 (for short ‘the Act’)?
7. In support of the appeal, Ms. Vaypayee-Dube contended that plaintiff is not owner of the suit premises. Basically, Gokuldas and Gulabchand had leased out the suit premises to him. She therefore submits that plaintiff has no locus standi to institute suit as she is not the landlady. Secondly, she submitted that assuming that plaintiff is landlady, the suit instituted by her under the provisions of Transfer of Property Act, 1982 (for short ‘T.P Act’) is not maintainable. She submitted that the suit premises is clearly covered by ‘House’ as defined in section 2(b) of the Act. She further submitted that the Courts below have committed error in holding that relationship between the parties is governed by provisions of the Act and not T.P Act. She has taken me through the pleadings of the parties as also evidence on record.
8. She further submitted that in the plaint as also in the evidence of PW 1, the theory of partition was not made out. For the first time, the theory of partition is deposed by PW 2 Gulabchand. If the theory of partition is not accepted, then one has to hold that the suit premises is part and parcel of house no. 24 in ward no. 23 and the provisions of t.p act are not applicable. She further submitted that no issue was framed as regards partition as also no evidence is produced on record. Finally she relied upon section 109 of the T.P Act to contend that lease was initially created in favour of defendant by Gokuldas and Gulabchand Baldava and, during the subsistence of the lease, suit premises was transferred to the plaintiff. Even on that count, she submitted that, plaintiff is not entitled to claim possession of the suit premises. She therefore submited that, for all these reasons, the impugned orders are liable to be quashed and set aside thereby dismissing the suit of the plaintiff.
9. On the other hand, Mr. Katneshwarkar invited my attention to evidence of defendant and submitted that from the admission given by defendant in cross examination, it is clear that what was let out to him was the open space admeasuring 12 ft. × 9 ft. which does not satisfy tests laid down in the expression ‘house’ in section 2(b) of the Act. He also relied upon decision of this Court in the case of Abdul Sattar Khan v. Abdul Gani Khan s/o Nawaz Khan, 1991 (1) Mh.L.J 183 and submitted that since defendant was let out open plot, the parties are governed by provisions of t.p act and not the Act. He submitted that the suit plot was allotted to plaintiff in partition between her and her brothers. This fact was specifically deposed by PW 2 Gulabchand. However, perusal of cross examination of PW 2 Gulabhcand shows that he was not confronted with the aspect of partition. He further submitted that defendant has asserted in written statement that Gulabchand had issued notice calling upon him to pay rent to plaintiff. Accordingly, defendant went on paying rent to plaintiff. In other words, defendant accepted that plaintiff is the landlady and therefore, there is relationship of landlord and tenant between the parties. He submitted that after appreciating evidence on record, the Courts below have concurrently held that what was let out to defendant was open plot and not any structure. He submitted that the Courts below have rightly passed the decree and no case is made out for invoking powers under section 100 of C.P.C
10. I have considered the rival submissions of both the parties. I have also perused the material on record as also original record. The first question is whether plaintiff is the landlady and consequently entitled to maintain the suit. Perusal of written statement shows that defendant did not specifically deny that plaintiff is a landlady. In paragraph no. 2 of the written statement defendant stated as under:
This defendant does not know that the plaintiff is owner of suit premises. Due to notice issued by Mr. Gulabchand Baldava directing defendant to pay rent to plaintiff, since last two years, defendant is paying rent to plaintiff, some time by money orders and has also deposited agreed rent that she refused in the Rent Control office.
Perusal of paragraph no. 2 of the written statement shows that defendant did not specifically question the locus standi of plaintiff to maintain the suit. Defendant did not contend that plaintiff is not his landlady. That apart, defendant has pleaded in written statement that he was paying rent to plaintiff. In view thereof, plaintiff has established relationship of landlord and tenant between the parties. Submission made by Ms. Vajpayee-Dube that suit is not maintainable as plaintiff is not a landlady, cannot be accepted. The Courts below, after appreciating evidence on record, have concurrently held that plaintiff is the landlady. Perusal of evidence of PW 1 and PW 2 also shows that plaintiff has established that, after partition, the suit premises was alloted to her share. Defendant did not confront PW 2 on the question of partition. For all these reasons, I hold that plaintiff has established that she is a landlady of the suit premises and was consequently entitled to maintain the suit for recovery of possession.
11. The next question is whether the parties are governed by the provisions of T.P Act or the Act. For that purpose, definition of the expression ‘house’ under section 2(b) of the Act is required to be considered. Section 2(b) of the Act reads as under:
2. In this Act, unless there is anything repugnant in the subject or context,
(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 garden, grounds, garages, and out-houses, if any, appurtenant to such building or hut or part of such building or hut and or to let or to be let along with such building or hut or part thereof.
(ii) any furniture supplied or any fittings affixed by the landlord for use in such building or hut provided but the expression does not include a room in a hotel or boarding house;
Plaintiff has specifically come with the case that she is the owner and landlady of the open plot bearing Municipal House No. 24, ward no. 23, situate at Hanuman Chowk, Ganj, Latur. In paragraph no. 2 of the written statement, defendant contended that owner of the suit premises are Gokuldas Baldava and Gulabchand Baldava who had leased out the suit premises to defendant. Perusal of written statement shows that defendant did not come out with a specific case that what was let out to him was some constructed portion and not the open space as alleged by plaintiff in the suit. Perusal of evidence of PW 1 and PW 2 also shows that they came out with a specific case that the open plot admeasuring 12 ft. × 9 ft. was let out to defendant. In the examination-in-chief, defendant deposed that he occupied the open space admeasuring 12 ft. × 9 ft. from Gokuldas, which is the part and parcel of the building of Gokuldas. In cross examination, defendant admitted that he has occupied open space admeasuring 12 ft × 9 ft out of municipal house no. 24, ward no. 23 of Latur. After considering evidence on record, the Courts below have concurrently held that what was let out to defendant was the open plot and not any constructed portion.
12. Perusal of definition of expression ‘house’ clearly shows that house means any building or hut or any part of a building or hut let or to be let separately for residential or non-residential purpose and includes the garden, grounds, garages, and out-houses, if any, appurtenant to such building or hut or part of such building or hut and or to let or to be let along with such building or hut or part thereof. Perusal of definition of expression ‘house’ clearly shows that what is let out is any building or hut or any part of the building. In other words, letting is of some constructed portion either in the form of part of the building or hut or any building. In short, letting cannot be simplicitor of open space.
13. The Courts below, after appreciating evidence on record, have concurrently held that what was let out to defendant was open space. Ms. Dubey submitted that open space is the part and parcel of Municipal House No. 24, ward no. 23 and, therefore, satisfies the criteria laid down under section 2(b) of the Act. It is not possible to accept this submission in view of expressed language employed in section 2(b) of the Act. I am of the opinion that in order to satisfy the criteria laid down in section 2(b) of the Act, letting of any building or hut or part of building is material and not simplicitor open space which is part of the building.
14. In view thereof, I am clearly of the opinion that what was let out to defendant does not fall within the definition of expression ‘house’. The view taken by me is also supported by decision of this Court in the case of Abdul Sattar Khan (supra). In view thereof, it is held that the parties are governed by the provisions of t.p act and not the Act. The question of law formulated by this Court while admitting the appeal is accordingly answered. In view thereof, the appeal fails and the same is dismissed.