ash 1 cra-732.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL REVISION APPLICATION NO.732 OF 2011 Rajan Arjun Keni & Others. .. Applicants. Vs Mrs. Vranda G. Pai. .. Respondent -- Shri P.B. Shah for the Applicants. Smt. Anjali N. Helekar for the Respondent. -- CORAM : A.S. OKA, J DATED : 1ST DECEMBER, 2011 P.C. . Heard learned counsel appearing for the Applicants and the learned counsel appearing for the Respondent. 2. The Respondent is the original Plaintiff and the Applicants are the original Defendants. 3. The Respondent claims to have become the owner of the land bearing Survey No.473, Hissa No.5 (CTS Nos.422, 423 and 426) more particularly described in Paragraph 1 of the Plaint by a registered Sale Deed dated 2nd December, 1986 executed by the Trustees of F.E. Dinshaw Trust. It is contended that one Manik Budhaji Keni was the tenant in respect of an open land admeasuring 44 sq. yards out of the ash 2 cra-732.11 said land at a monthly rent of Rs.6/-. The present Applicants are described as the legal representatives of the said Manik Keni. In the Plaint, reference is made to a suit filed by the said Manik in the City Civil Court for declaration and injunction which was dismissed. Allegation is that the Applicants have extended the existing structure by carrying on illegal construction. It is alleged that the Applicants have changed the user. Allegations of carrying out encroachment were also made. Reliance is placed on a notice dated 25th April, 2000 by which the tenancy of the Applicants was terminated. It is contended in the suit that the tenancy was in respect of an open land, the Applicants had no protection of the Maharashtra Rent Control Act, 1999 ( hereinafter referred to as “the said Act”). Written Statement was filed by the Applicants by which they denied the derivative title of the Respondent on the basis of the Sale Deed executed by the Trustees. It was contended that the suit as regards the encroached portion was not maintainable. It was contended that the said deceased Manik was a tenant in respect of the entire area of 1089 sq. yards out of the said property of the said F.E. Dinshaw Trust and the Applicants were entitled to inherit tenancy in respect of the entire land. It is contended that an Appeal preferred by the Applicants against the decree of dismissal of the suit filed by Manik is pending in this Court. It was denied that the Applicants have encroached upon any land as alleged by the Respondent. ash 3 cra-732.11 4. The Trial Court held that the Applicants were tenants of the open land admeasuring 44 sq. yards of which the Respondent was the landlord and the tenancy has been validly terminated by a notice for termination. However, the learned Judge of the Court of Small Causes held that the said Court had jurisdiction to pass a decree only in respect of the land, in respect of which the Applicants were tenants and therefore, the decree of ejectment was passed confined to an area of 44 sq. yards. In an Appeal preferred by the Applicants, the decree passed by the Trial Court has been confirmed. The Cross Objection filed by the Respondent has been dismissed. 5. The first submission of the learned counsel appearing for the Applicants is that Paragraph 16 of the Plaint indicates that the suit was filed under the provisions of the said Act. He submitted that according to the case of the Respondent, the predecessor of the Applicant was a tenant in respect of the open land. He submitted that as the open land is not covered by the definition of “premises” under the said Act, the suit is not maintainable. The second contention is that there was no sufficient identification of the area of 44 sq. yards in respect of which the decree was passed by the Trial Court. He submitted that unless the area was clearly identified, the decree could not have been passed. He relied upon a decision of the Apex Court in ash 4 cra-732.11 the case of P. Chandrasekharan & Others v. S. Kanakarajan & Others [2007(5) SCC 669]. He submitted that the evidence on record shows that the predecessor of the Applicants was the tenant both in respect of the land and the structure thereon. He pointed out that in the suit filed by the predecessor of the Applicants in the City Civil Court, a contention was raised that the predecessor of the Applicants was the lessee of the entire land admeasuring 1089 sq. yards. He submitted that though the suit is dismissed, the Appeal is pending in this Court. He, therefore, submitted that the impugned judgments and decrees are illegal. 6. I have given careful consideration to the submissions. The larger property has been described in the Plaint and in particular in Paragraph 1 thereof. Relevant portion of Paragraph 1 of the Plaint reads thus:- “By a Registered Deed of Conveyance dated 02.12.1986 the Plaintiff purchased from Mr. Musli N. Wadia and Ors. Trustees of P.B. Dinshaw Trust a Piece and parcels of land admeasuring 189 sq. yards of land bearing survey no.473 Hissa No.5, CS Nos.422, 423 and 426 all situated lying and being at Bhandarwada, Near Gaothan, Malad (West), Mumbai – 400 064, on the terms and conditions mentioned therein and hereinafter referred to as the “Said Property”. The Plaintiff is the absolute owner of the said property together with all the structures standing thereon. The Plaintiff has been in exclusive use, occupation and possession of the said property since 02.12.1986.” ash 5 cra-732.11 7. In Paragraph 2 of the Plaint, it is pleaded that Manik, the predecessor of the Applicants was tenant of the land admeasuring 44 sq. yards paying ground rent at Rs.6/- per month to F.E. Dinshaw Trust. In Paragraph 2 of the Plaint, reliance is placed on a sketch. The area of 44 sq. yards is described as the suit land which is shown on the said sketch marked as Exhibit-A to the Plaint. There are further allegations regarding encroachment made by the Applicants. It is not necessary to deal with that aspect. As stated above, the suit has been dismissed as far as the encroached portion is concerned. 8. In Paragraph 1 of the Written Statement, the Applicants have denied the contents of the Paragraph 1 of the Plaint on account of want of knowledge. It will be necessary to make a reference to Paragraph 3 of the Written Statement. “3. The Defendants deny the contentions of para 2 of the plaint. Defendants deny that Shri Manik Budhaji Keni was ground rent tenant of 44 sq. yards on CTS No.422 at monthly rent of Rs.6/- only. The Defendants submit that Shri Manik Budhaji Keni was the tenant of entire plot of land admeasuring 1089 sq. yards out of Survey No.473 Hissa No.5, CTS Nos.422, 423 and 426. The Defendants submit that F.E. Dinshaw Trust was the landlord and Manik Budhaji Keni was lessee of the land. The Defendants being the only heirs and legal representatives of late Manik Budhaji Keni are entitled to inherit the leasehold rights.” ash 6 cra-732.11 9. Thus, the clear case made out by the Applicants is that their predecessor Manik was a tenant of the land admeasuring 1089 sq. yards out of Hissa No.5, Survey No.473, CTS Nos.422, 423 and 426. There is a specific pleading that the said Manik was lessee of the land of the said F.E. Dinshaw Trust. Thus, the Applicants did not dispute that Manik was tenant of the land and it is not pleaded that the said Manik was tenant of both the lands and the structure. The Respondent relied upon a Sale Deed executed by the Trustees of F.E. Dinshaw Trust who were admittedly the landlords of the deceased Manik. Thus, on the pleadings, it cannot be disputed that the predecessor of the Applicants was tenant in respect of the open land and not the structure. 10. As far as description of the suit land admeasuring 44 sq. yards is concerned, as stated earlier, a sketch has been annexed to the Plaint which is marked as Exhibit-A. The reference to the said sketch in Paragraph 2 of the Plaint is not at all specifically dealt with in the Written Statement. In the examination-in-chief, the husband of the Respondent stated in Paragraph 9 that he was producing a sketch plan showing the exact location of the area of 44 sq. yards as well as the area of 120 sq. yards out of CTS No.422. The said sketch was produced on record. It is true that the operative part of the decree of the Trial Court does not refer to the sketch produced by the Respondent but the fact ash 7 cra-732.11 remains that there is material on record to establish identity of the area of the suit land admeasuring 44 sq. yards. 11. Perusal of Paragraph 13 of the Plaint shows that there is a specific pleading that the Applicants are not protected under the said Act. Therefore, mere reference to Paragraph 16 is not sufficient to come to a conclusion that the suit was under the said Act. On the contrary, the pleading is that the Applicants have no protection under the said Act. 12. Apart from the admission in the Written Statement, on consideration of the oral and documentary evidence, there are concurrent findings recorded by the Courts below that the tenancy was in respect of the land admeasuring 44 sq. yards. As stated earlier, the Respondent became owner by a Sale Deed executed by the Trustees of F.E. Dinshaw Trust who were admittedly the lessees. There is no dispute regarding the service of notice of termination of tenancy under Section 106 of the Transfer of Property Act, 1882. The tenancy was in respect of the land. In view of the definition of “premises” under the said Act, the protection under the said Act is not available as an open land has been excluded from the definition of the “premises”. 13. Pendency of the Appeal in this Court is irrelevant. The ash 8 cra-732.11 case of the Respondent is that the Applicants are the tenants in respect of the area of 44 sq. yards whereas the case of the Applicants is that the Respondent is the lessee of a larger area. In the present case, the decree is only in respect of 44 sq. yards the tenancy of which has been determined in accordance with law. 14. Hence, there is no reason to interfere with the concurrent decrees passed by the Courts below. There is no merit in the Civil Revision Application and the same is accordingly dismissed. 15. Ad-interim relief granted by this Court on 18th October, 2011 will continue to operate for a period of three months from today. ( A.S. OKA, J )