1 cra400.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL REVISION APPLICATION NO.400 OF 2010 Vimladevi w/o Prusthottam R. Jain & Ors. ...Applicants vs. Rajas Shashimohan Joshi & Ors. ...Respondents Mr.Vineet Naik i/b Mr.Nishan Sasidharan i/b Dhruve Liladhar & Co. for the applicants Mr.Sakhardande with Ms Nutan Moily for the respondents CORAM :A.S.OKA,J. DATE : AUGUST 31, 2010 P.C. 1 The submissions of the learned counsel for the parties were heard on the earlier date. 2 The applicants are the defendants in a suit filed by the respondents. The suit was filed by the respondents against the revision applicants for possession of a piece and parcel of the land admeasuring 1235 sq. yards bearing Survey No.25B lying and situated at Goregaon (Pahadi), Taluka Borivali. The said land is hereinafter referred to as the suit land. 3 A suit was filed by invoking the provisions of section 41 of the Presidency Small Cause Courts Act, 1882. The contention of the respondents was that the suit land was let out to the applicants under the lease deed dated 23 rd November 1964. As per the terms and conditions incorporated in the lease deed, the applicants constructed a building known as Yashwant Krupa on the suit land. It is the case of the respondents that the lease expired by efflux of time on 8 th August 1997 on 2 cra400.sxw completion of 25 years. Notice was issued by the respondents to the applicants informing the applicants that the lease had expired by efflux of time on 8 th August 1997. The applicants have filed a suit in the Court of Small Causes inter alia for a declaration of tenancy. The prayer in the suit filed by the respondents was for decree of possession in respect of the suit land. The suit proceeds on the footing that the provisions of the Maharashtra Rent Control Act,1999 are not applicable to the suit premises. 4 The suit was contested by the applicants by filing additional written statement. It was contended that the suit was not maintainable under section 41 of the Presidency Small Cause Courts Act, 1882. It was pointed out that the suit for declaration filed by the applicants is pending in the Court of Small Causes. It was denied that the lease expired by efflux of time and that provisions of Maharashtra Rent Control Act,1999 (hereinafter referred to as the said Act) are not applicable to the suit premises. 5 The learned Trial Judge held that the applicants were not protected by the said Act. The learned Judge answered the issue of jurisdiction against the applicants. He held that the tenancy in respect of the suit land has come to an end by efflux of time. The trial court proceeded to pass a decree of eviction in favour of the respondents. An appeal was preferred by the applicants before the Appeal Bench of the Court of Small Causes. The decree for possession was confirmed by the Appeal Bench. The same was modified to an extent by deleting the portion of the suit land acquired by the Municipal Corporation of Greater Mumbai. 3 cra400.sxw 6 In support of the petition, the learned Counsel for the petitioner invited the attention of the Court to the terms and conditions of the document of lease. He pointed out that the contention of the respondents is that the lease expired by efflux of time is totally contrary to what is provided under the relevant clauses of the lease. He pointed out relevant clauses in the document of lease and in particular clause 2 (h) thereof which permits the applicants to remain in possession as tenants of the respondents of such portion or portions of the building as may be in their actual personal occupation (either residential or business premises). He pointed out that this clause protects the possession of the applicants of the building over the suit premises. He submitted that even assuming that the lease came to an end by efflux of time, the applicants are entitled to claim tenancy in respect of the building and in any event there is no decree passed in respect of the building. He submitted that the applicants are entitled to claim tenancy in respect of the area in their possession. The suit under section 41 of the Presidency Small Causes Court Act is not maintainable. He submitted that the decree passed by the Courts below is null and void. 7 The learned counsel for the respondents pointed out that the respondents have already filed a suit for possession against the applicants in respect of the building and therefore, if the impugned decree is executed, the applicants cannot be dispossessed of the property subject matter of the other suit for eviction. 8 I have carefully considered the submissions. On the plain reading of the plaint, the suit is filed for possession of the suit land which was subject matter of lease dated 23 rd November 1964. In view of definition 4 cra400.sxw of premises under sub section 9 of section 7 of the said Act, a land is not a premises in as much as only a building or part thereof are included in the definition of the premises . The learned counsel for the applicants relied upon the clause (i) of sub section 9 of section 7 of the said Act. However, the said clause will not apply to open land and clause (i) is applicable to the gardens, grounds, garages and out-houses appurtment to such building or part of the building which is let out. In view of sub section 1 of section 2 thereof the said Act is applicable to the premises within the meaning of the said Act. The suit land subject matter of the lease is not a premises and therefore, the protection of the provisions of the said Act is not available to the applicants. Therefore, the suit was very much maintainable under section 41 of the Presidency Small Causes Court Act,1882. The suit was filed as the lease expired by efflux of time on 8 th August 1999. Clause (h) paragraph 2 of the lease will protect the applicants claim of tenancy in respect of the portion or portions of the building on the suit lands as provided therein. For possession of the portion of building in possession of the applicants, a separate suit has been filed by the respondents and only when the respondents obtain a decree for possession in the said suit, the applicants can be evicted from the premises forming part of the building in their possession. 9 Once it is held that the applicants have no protection of the said Act, the decree for possession must follow in the respect of the suit land as the lease had expired by efflux of time. It was suggested that in absence of the decree for possession of the building, the decree for possession of the suit land cannot be executed. However, the said aspect will have to be dealt 5 cra400.sxw with by the executing Court under section 47 of the Code of Civil Procedure,1908. Hence, it is not possible to find fault in the concurrent findings recorded by both the courts. There is no merit in the revision Application and the same is dismissed with no order as to costs. 10 The learned counsel for the applicants submitted that the suit was barred by the principles of res judicata. It must be noted here that the said contention was not raised before the trial Court. There is no issue framed by the trial Court and there is no point for determination framed by the Appellate Court on the said aspect. Even otherwise also section 11 of the Code of Civil Procedure,1908 will have no application as the declaratory suit has not been finally decided. 11 It is directed that decree for possession shall not be executed for a period of 8 weeks from today. 12 At this stage, the learned counsel for the applicants prays that a clarification be issued that declaratory suit filed by the applicants shall be decided on its own merits without being influenced by the findings recorded in the suit filed by the respondents. The said prayer cannot be acceded to as the suit filed by the applicants is not subject matter of this revision application. Judge