Case: Jagat Ram Sethi Vs. R.B.D.D. Jain &amp; Others

behalf of the appellant is that an allotment order was made on February 27, 1950, by the Rent Control Officer in favour of the appellant. In that allotment order the schedule of accommodation contained the following : "A mud roof verandah and a kothri with open place at present is used by Shri Mohd. Ibrahim for tonga repairing work, situated at Begum Bridge Road in front of Dr. Phopels kothi." It appears that Harbans Lal drafted out a letter to the Rent Control Officer pointing out that only a part of the land had been let out by him to Mistri Mohd. Ibrahim by an agreement, dated January 7, 1941, according to which he was authorised to make temporary construction and that he had actually constructed a shed at his own cost which he was liable to remove when the land was required by the landlord. This letter, however, was never sent to the Rent Control Officer. It has, therefore, been urged on behalf of the appellant that Harbans Lal accepted this statement contained in the allotment order. It is suggested that the existence of a mud roof verandah and kothri on the land would bring the premises within the definition of "accommodation". The Additional Civil Judge who considered the evidence expressed the view that the kothri and verandah had been constructed by Mistri Ibrahim but Harbans Lal never came into possession of these constructions as the appellant had been given possession by Mistri Ibrahim. Reliance was placed on Para 14 of the written statement in which it was admitted that the defendant-appellant had acquired the goodwill, business and the workshop of Mistri Ibrahim and had settled on the land with the consent and permission of Harbans Lal. Reference was also made to the notice, dated April 21, 1950, according to which both Mistri Ibrahim and the appellant were in possession of the property in suit on April 21, 1950. According to the learned judge the evidence established that the appellant was making efforts to take possession of the property in the tenancy of Ibrahim without its reverting back to the landlord and had succeeded in doing so. Under Section 108(h) of the Transfer of Property Act the lessee could, after determination of the lease, remove while in possession the construction made by him but if he failed to do so and the property reverted to the lessor the fixtures etc. would become the property of the latter. Since Mistri Ibrahim did not put the landlord in possession and transferred the land together with the structure put up by him to the appellant the transferee stepped into the shoes of the lessee. Thus so far as the appellant and Harbans Lal were concerned the former was tenant only of the land and no accommodation had been rented out to him by the latter. As such the provisions of Section 3 of the Act would not be attracted. The High Court also considered this point and expressed the opinion that the structures never became the property of the landlord. 6. Mr. M. C. Chagla who argued the case on behalf of the appellant does not and indeed cannot contend that if the structures which were put up by Mistri Ibrahim never became the property of Harbans Lal any accommodation within the meaning of Section 2(a) of the Act could be said to have been leased or let out to the appellant by Harbans Lal. It was the land alone in respect of which the tenancy existed. That by itself could not fall within the definition of accommodation and consequently the permission of the District Magistrate under Section 3 of the Act was not necessary for institution of a suit for ejectment. We have no doubt, therefore, that the conclusion of the courts below on this point is correct. 7. Mr. Chagla has sought to urge that the respondents were estopped from filing the suit. According to him several constructions were made by the appellant on the land in question with the knowledge of the respondents. The High Court relied on the findings of the courts below that no such action on the part of the lessor had been proved on the basis of which it could be held that the appellant had altered the position to his detriment. If the lessee chose to make unauthorised constructions at his own risk and the lessor did not take action the latter could not, on that account, be estopped from filing a suit for ejectment. According to Mr. Chagla the allotment order made in February, 1950, by the Rent Control Officer in favour of the appellant was never challenged by Harbans Lal or the respondents. It was on the basis of that order and the representation contained in it that it was accommodation which was to be the subject-matter of tenancy that the appellant had expanded a good deal of money on further construction. We are wholly unable to understand how any description of the property in the allotment order could be treated as a representation made by the respondents. It has not been shown that the allotment order created any such rights on the basis of which the appellant could find his defence on the rule of estoppel. The Additional Civil Judge had found on Issue No. 4 that Harbans Lal never gave express consent for the constructions to be raised but he knew about their existence. We concur in the view of the High Court that mere inaction on the part of the lessor did not entitle the lessee to resist the suit on the ground of estoppel. The lessee had the right under Section 108(h) of the Transfer of Property Act to remove the constructions while he was in possession. There was no provision in that Act which debarred the lessor from determining the lease under Section 111 merely because constructions had been made by the lessee even to the knowledge of the lessor, and from instituting the suit for ejectment.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 0

Reasoning from the judgment:
0[ds]6. Mr. M. C. Chagla who argued the case on behalf of the appellant does not and indeed cannot contend that if the structures which were put up by Mistri Ibrahim never became the property of Harbans Lal any accommodation within the meaning of Section 2(a) of the Act could be said to have been leased or let out to the appellant by HarbansLal.It was the land alone in respect of which the tenancy existed. That by itself could not fall within the definition of accommodation and consequently the permission of the District Magistrate under Section 3 of the Act was not necessary for institution of a suit for ejectment. We have no doubt, therefore, that the conclusion of the courts below on this point is correct7. Mr. Chagla has sought to urge that the respondents were estopped from filing the suit. According to him several constructions were made by the appellant on the land in question with the knowledge of the respondents.The High Court relied on the findings of the courts below that no such action on the part of the lessor had been proved on the basis of which it could be held that the appellant had altered the position to his detriment. If the lessee chose to make unauthorised constructions at his own risk and the lessor did not take action the latter could not, on that account, be estopped from filing a suit for ejectment. According to Mr. Chagla the allotment order made in February, 1950, by the Rent Control Officer in favour of the appellant was never challenged by Harbans Lal or the respondents. It was on the basis of that order and the representation contained in it that it was accommodation which was to be ther of tenancy that the appellant had expanded a good deal of money on further construction. We are wholly unable to understand how any description of the property in the allotment order could be treated as a representation made by the respondents. It has not been shown that the allotment order created any such rights on the basis of which the appellant could find his defence on the rule of estoppel. The Additional Civil Judge had found on Issue No. 4 that Harbans Lal never gave express consent for the constructions to be raised but he knew about their existence. We concur in the view of the High Court that mere inaction on the part of the lessor did not entitle the lessee to resist the suit on the ground of estoppel. The lessee had the right under Section 108(h) of the Transfer of Property Act to remove the constructions while he was in possession. There was no provision in that Act which debarred the lessor from determining the lease under Section 111 merely because constructions had been made by the lessee even to the knowledge of the lessor, and from instituting the suit for ejectment.