: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.110 OF 2008 John Pawloo Prasad & Anr. .. Applicants V/s. Keru Ramji Sigwan .. Respondent Mr. R.A. Thorat for the Applicants. Mr. Dipak Deshmukh with Mr. Shailesh Rai i/b. M/s. K.P. Tiwari & Co. for the Respondent. CORAM : SMT. NISHITA MHATRE, J. DATED : 21 ST NOVEMBER, 2009. ORAL JUDGMENT: 1. The Civil Revision Application had been preferred by the applicants challenging the order passed by the Appellate Bench of the Small Causes Court in Appeal No.65 of 2005 which was passed on 17th October, 2007. 2. The applicants claim to be the landlords of Room No.1 in Pawlooprasad Chawl situated at Bhandarwada in Marol Village, near Fish Market, Andheri (East), Mumbai-400059. According to them, Room No.1 was leased to the respondent-defendant : 2 : who became their monthly tenant on payment of rent of Rs.20/- per month exclusive of permitted increases. The plaintiffs, i.e. the applicants herein, contended that the defendant-respondent fell in arrears of rent from 1st January, 1983 and, therefore, by notice dated 28th April, 1986 they terminated the tenancy. The plaintiffs demanded arrears of rent under Section 12(2) of the Bombay Rents, Hotels and Lodging House Rates (Control) Act (for short “Bombay Rent Control Act”). This notice was received by the defendant-respondent and was replied on 9th May, 1986 through his Advocate. The contention in the reply was that the defendant- respondent had constructed the room on Government land at his own cost and that therefore he was not bound to pay any rent. It was further stated that he had paid the rent for two or three years to the plaintiffs only because he was threatened and harassed by the plaintiffs-applicants. 3. Despite the notice, the rent was not forth coming and, therefore, the plaintiffs-applicants preferred a Suit being R.A.E. & R. Suit No.3554 of 1986 before the Small Causes Court, Bombay. The : 3 : plaintiffs-applicants reiterated their contentions which were mentioned in their notice terminating the tenancy. The defendant-respondent in his written statement contended that the land on which the structure constructed was owned by the Government and that he was in possession of the suit premises namely Room No.1 in Pawlooprasad Chawl as its owner and not as a monthly tenant. The defendant-respondent denied being paid rent to anybody after he constructed the suit premises and contended that he was enjoying the suit premises as a owner after constructing it in 1969. He, therefore, denied that the relationship between the plaintiff and himself was that of landlord and tenant. 4. Evidence was led by the parties before the trial Court. A specific suggestion was put to the defendant-respondent in his cross-examination that he had paid rent to the plaintiffs-applicants and had admitted the same in his reply to the notice terminating the tenancy. The plaintiffs-applicants have produced on record the assessment bills issued by the Bombay Municipal Corporation and the City : 4 : Survey Plan. They have also produced on record a letter issued by the Deputy Collector directing the plaintiffs-applicants to pay taxes of the land. The plaintiffs-applicants further produced on record receipts showing that they had paid non- agricultural taxes for the suit premises to the Municipal Corporation and the Tahsildar. The defendant-respondent contended in his cross- examination that he was the owner of the suit premises and that he had never paid any rent to the plaintiffs. 5. Taking into account all the evidence on record, both oral and documentary, the trial Court decreed the Suit. It was argued before the trial Court on behalf of the defendant-respondent that in any event since admittedly the defendant-respondent was occupying the suit premises since 1969 as a licensee, he was a protected tenant in view of the provisions of Section 15-A of the Bombay Rent Control Act. The trial Court considered this submission but observed that the defendant- respondent had failed to prove that he was entitled to any protection. The trial Court also observed : 5 : that although the premises were constructed on Government land, since the plaintiffs-applicants were the landlords, they were entitled to evict the occupier of the premises. Considering the evidence on record, the trial Court held that it was established that the defendant-respondent was a tenant in the suit premises and that he was the plaintiffs’ tenant. Since the defendant-respondent failed to comply with the notice for payment of arrears of rent, the trial Court decreed the Suit. 6. Being aggrieved by the decision of the trial Court, the defendant-respondent preferred an Appeal to the Appellate Bench of the Small Causes Court, Bombay. One of the grounds raised in the Appeal Memo was that despite the contention raised on behalf of the defendant-respondent regarding the protection available under Section 15-A of the Bombay Rent Control Act, the trial Court had not considered the same and had passed a decree against the defendant-respondent. The Appellate Court, on the other hand, reversed the findings of the trial Court and concluded that since the plaintiffs- : 6 : applicants were unable to prove their ownership of the suit premises, there was no landlord-tenant relationship between them and the defendant- respondent. 7. Mr. Thorat appearing for the applicants has submitted that all the documentary evidence produced before the Court established without doubt that the plaintiffs-applicants were the landlords and that the defendant-respondent was their monthly tenant. He further submitted that the Appellate Court has confused the concepts of the ‘landlord’ and ‘owner’ as, according to him, they are two distinct concepts, as held in the judgments of the Supreme Court as well as this Court. The trial Court, according to the learned Advocate, committed an error by observing that since the plaintiffs- applicants have not produced any document such as a Lease Deed or Conveyance or a grant from the Government in favour of the plaintiffs-applicants, they could not prove that they were owners of the suit premises. The learned Counsel relies on the judgments of the Supreme Court in the case of K.D. Dewan v/s. Harbhajan S. Parihar, reported in 2001 : 7 : AIR SCW 4605 and in the case of E. Parashuraman v/s. V. Doraiswamy with G. Ramachandran v/s. V. Doraiswamy, reported in AIR 2006 SC 376, in support of his submission that a landlord need not necessarily be the owner of the land on which the premises are constructed. He submits that the definition of ‘landlord’ contained in Section 5(3) of the said Act is wide enough to include a person who is not the owner of the land beneath the structure. 8. On the other hand, the learned Advocate appearing for the defendant-respondent submits that, the defendant-respondent has consistently been denying the relationship of ‘landlord-tenant’ between the parties. He submits that no evidence at all had been brought on record to indicate that the plaintiffs-applicants were the owners of the suit premises. According to him, there was material on record which established that the defendant- respondent was occupying the suit premises, which he had constructed himself. He also submits that unless there is evidence on record to establish the plaintiffs’ ownership of the suit premises, they : 8 : were not entitled to claim that they were landlords of the suit premises and, therefore, not entitled to claim rent. 9. In the case of K.D. Dewan (supra), the Supreme Court while considering the provisions of the East Punjab Urban Rent Restriction Act, has considered who could be termed as a ‘landlord’ and held that to be a ‘landlord’ within the meaning of clause (c) of Section (2) of that Act, a person need not necessarily be the owner. The Court observed that in a vast majority of cases an owner will be the landlord but in many cases a person other than an owner may well be the landlord. Section 2(c) has been quoted in this judgment and it is similar to Section 5(3) of the Bombay Rent Act. In fact, the Bombay Rent Act has an even wider definition of the term ‘landlord’. 10. In the case of E. Parashuraman (supra), the Supreme Court considered the provisions of the Karnataka Rent Control Act. In a similar situation such as arising in the present case, the Court held that a landlord under the Act need not be the : 9 : owner of the premises. Bearing in mind these observations of the Supreme Court, I will now advert to the facts in the present case. Undoubtedly, the assessment bills were produced before the trial Court. The trial Court has considered the documents on record which indicate that the plaintiffs’ father had constructed the premises and since they had been paying taxes in respect of the suit structure. Therefore, the trial Court has rightly concluded that they were the landlords of the suit structure. In the written statement, the defendant-respondent has admitted that he was occupying the suit structure mentioned in the assessment bills which were in the name of the plaintiffs. Thus, obviously, he occupied the same as a tenant. 11. In fact the defendant-respondent in his grounds raised in the Appeal Memo filed before the Appellate Court of the Small Causes Court has contended that he was a protected tenant after the introduction of Section 15-A in the Bombay Rent Act. This ground indicates that he accepts that he was a tenant. The defendant-respondent, therefore, : 10 : cannot now contend that the plaintiffs-applicants are not his landlords. In fact, he is estopped from doing so. 12. In my opinion, therefore, the Appellate Court has erred in allowing the Appeal by concluding that the defendant-respondent was not a tenant. 13. The Civil Revision Application is allowed. 14. On the application made by the learned Advocate for the respondent, the Judgment is stayed for a period of eight weeks from today on condition that the respondent pays to the applicants a sum of Rs.7,000/- within a period of four weeks from today. 15. The respondent and all the adults in the family, who are residing in the suit premises, must submit an undertaking in usual form to this Court within a period of two weeks from today. .......