TMI Blog1988 (3) TMI 461X X X X Extracts X X X X X X X X Extracts X X X X ..... le workshop and parking buses, the rent being payable on or before 10th of each following month. In terms of the lease, the lessee was permitted to take water and power connections, but in the name of the lessor and bear the charges himself. In terms of the lease, it was also agreed that the lessor shall apply for licence enabling the lessee to put up temporary structure, for the use for which the premises was let out, at the cost of the lessee and to obtain power and water connections and after the expiry of the period of lease to remove the temporary structure and deliver vacant possession of the premises in its original condition but without removing water and power connections. It was however agreed that neither he should put up or erect any permanent structure nor mortgage nor transfer in any manner nor part with the possession of the whole or any part of the demised premises and shall not also use the premises for any other purpose other than the purpose for which the premises was leased. 3. After the premises was so leased, on 4-5-1970, there was a partition among the five brothers and the premises in question was allotted to the share of respondents-1 to 3, each taking 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nter alia that he had not only erected a permanent structure on the premises by digging a well of the depth 35' to 40' and 4' to 5' diameter without their consent and had thus damaged the property to a great extent, but he had also unlawfully sub-let the part of the premises to one D. Jayaram doing business under the name and style of Janatha Automobiles and therefore also he is liable to the evicted forthwith. It may be mentioned here, Khader Sheriff did not oppose the amendment, but A.R. Sheriff (since deceased, whose legal representatives have been brought on record), who claimed to have purchased the running concern Janatha Travells from the original tenant-respondent Khader Sheriff and paying the rent to the lessors since then, having got impleaded as respondent-2 on the application made by him as I.A-7 opposed the amendment. The petitioner herein Basha Baig, who claimed to have purchased the running concern from A.R. Sheriff was impleaded on the application I.A-17 in the teeth of the objections to his impleading. It does not appear the case was set down for objections or the petitioner herein filed any objections. The case was straightaway posted for evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of notice terminating the tenancy in violation of the terms and conditions of the lease deed and A.R. Sheriff had in turn sold to Basha Baig. Since after the expiry of the period of lease Khader Sheriff had no interest in the premises, he could not convey such right or interest and that was not only contrary to the terms and conditions of lease, but contrary to the provisions of the Act and the tenant was therefore liable to be evicted. Considering the point regarding the requirement of the premises for personal use and occupation of respondent-1 to 3, the Court below also held that Choodanath who was working as an Engineer in HMT wanted to put up industrial shed in a portion of the premises allotted to his share, as per the proposed plan Ex.P-15 at the estimated cost of ₹ 1,54,700/-, and respondents-2 and 3, who were presently residing in the house of their brother wanted to put up residential houses in the portions of premises allotted to their share. While Choodanath had a sum of ₹ 58,315/-in his Provident Fund Account of H.M.T. as evidenced by Ex.P-27, the respondents being partners, by themselves or through their wives, in Allied Electricals, there was a balance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) of Section 21(1) of the Act was also not sustainable. So far as the order of eviction under Clause (f) of Section 21(1) of the Act was concerned, he submitted eviction was sought not on the ground that there was assignment or transfer of interest in respect of the premises, but on the ground that part of the premises leased was sub-let to D. Jayaram, who according to the allegations in the petition was doing business under the name and style of Janatha Automobiles, and the allegations made were vague to attract the provisions of Clause(f). When Khader Sheriff was permitted to erect shed for the purpose of business for which the premises was let out to him, even if he had permitted Jayaram to carry on the business in the said shed or let out the shed so erected by him, since the shed erected belonged to him, the permission given to Jayaram to carry on the business in the shed would not attract the provisions of Clause (f) and therefore the Court below was wholly in error in proceeding to make the order of eviction on the ground not pleaded in the original petition. So far as the order of eviction under Clause (h) of Sub-section (1) of Section 21 of the Act was concerned, learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement filed by him, in the absence of any proof to show that Khader Sheriff had paid or tendered the arrears of rent within two months of service of notice, the Court below was right in making the order of eviction under Clause (a) of Section 21(1) of the Act, particularly when no sufficient cause had been pleaded or proved for not paying or tendering the rent within two months of service of notice. He also further submitted, existence and putting up of permanent structure by Khader Sheriff as disclosed from Ex.P-5(1) to Ex.P-9(a) having been admitted, the Court below has not committed any error in making the order of eviction on the ground mentioned in Clause (c) The fact that the premises had been sub-let to D. Jayaram, as spoken to by PW-1, having remained unchallenged and the L.Rs. of Khader Sheriff having also not entered the witness box, the sub-lease in favour of Jayaram has been proved and therefore it cannot be said that the Court below has committed any error in making the order of eviction on the ground mentioned in Clause (f) of Section 21(1) of the Act. Besides, by their own showing A.R. Sheriff and the petitioner Basha Baig admittedly being transferees in possession o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubrahmanyam Ors., 1973 R.C.J. 162 when the transferee of a tenancy who was not a party to the proceeding, sought for impleading as an appellant in appeal preferred by the tenant/transferor, it was held that he could not come on record as an appellant in the appeal preferred by the transferor/tenant against the order of eviction. The facts in the case on hand are quite different from the facts in the said case. In the case on hand, from the facts narrated earlier itself it is clear how the petitioner sought to be impleaded in the proceedings. First A.R. Sheriff was arrayed as respondent-2 in the Court below and after the business was transferred, the petitioner also sought to be impleaded on the same terms as A.R. Sheriff and he was accordingly impleaded ; although not a necessary party but, he being in possession of the premises, he was a proper party to the proceedings. However, it would appear he was not given any opportunity of filing objections. He was allowed to participate in the proceedings and also lead evidence. As claimed by him, he has been in possession of the premises. He is not only interested in the result of the case, but to protect his possession. In a case like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime we filed the petition, the respondent was in arrears of ₹ 4,000/-. Notice was served on the respondent with 2-3 days. The postal acknowledgement is with my earlier lawyer. Neither the notice spoken to by him has been produced nor the acknowledgement. It is not his case that he personally posted the notice spoken to by him. The Court below has proceeded on the assumption that notice Ex.P-4 which was admittedly served on Khader Sheriff fulfils the requirement of Clause (a) and that also appears to be the contention of Mr. Gunjal, learned Counsel for the landlords. The original notice has not been produced. What is produced is a copy of the notice. As pointed out by Mr. Datar, it neither bears the signature of the Advocate who is said to have issued the notice, for and on behalf of the landlords, nor of any of the three landlords, who have sought for eviction of the tenant on the ground mentioned under Clause (a). A reading of Ex.P-4 would go to show that for the first time the landlords thought of bringing to the notice of the tenant Khader Sheriff of they becoming landlords of the premises pursuant to the partition of the family property and while informing Khader Sheriff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at extent. Leave aside the fact that nowhere evidence is clear as to the time when the well was dug, can such digging of a well be considered as an erection of a permanent structure, is a question. The expression 'structure' has not been defined under the Act. The dictionary meaning of the expression 'structure' is - 'building' any complex whole; frame work or essential parts of a building'. That being so, mere digging of a well (without there also being any construction of well dugout) cannot be said to be a structure or for that matter permanent structure. There is also nothing in the evidence to show that the well dugout had been constructed. Therefore, even if the well had been dugout and thereby any damage was caused to the land demised, that may at best attract Clause (o) of Section 21(1) of the Act; but unless serving a notice to the tenant in the prescribed manner requiring him to stop misuse of the premises and the tenant has refused or failed to comply with such requirement within one month of the date of service of notice, no application for eviction under Clause (o) of Section 21(1) of the Act would lie; and no order for eviction against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h a plea is raised or for that matter any evidence is let in. Khader Sheriff had been using the premises leased to him by erecting sheds. Having regard to the length of time for which he was in possession, it may be presumed that the landlords had notice of this fact; and the shed he had erected on the open site leased also belonged to him; because in terms of the lease deed Ex.P-1, after the expiry of the lease period, he had also to remove the sheds erected by him and deliver vacant possession of the open site leased to him in its original condition, without causing much damage incidental to such removal. Although the open site leased belongs to the landlords, Khader Sheriff was the owner of the sheds erected by him. The concept of law of dual ownership in such case is well recognised. Having regard to the fact that the plea raised by the landlords in the petition is vague, for not specifying which part of the premises leased had been sub-let to Jayaram, it cannot be said the landlords can successfully maintain their application under Clause (f). The question of law in this regard is covered by the decision of the Supreme Court in the case of MRS. DOSSIBAI v. KHEMCHAND, following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dustry he wanted to start. Admittedly respondent-1 Choodanath was already employed and was working as an Engineer in H.M.T. He had neither prepared plan of the proposed industrial shed nor had obtained sanctioned plan or licence for erecting shed, when the application for eviction was made. So also respondents-2 and 3 had neither produced any plans of the proposed construction nor the plans of the residential houses proposed to be constructed were got approved and sanctioned. There is no denial of the fact that even till the proceedings reached the final stage of hearing they had no plans, nor obtained licence for construction nor the plans of the proposed construction were got sanctioned. Of course, they have stated during enquiry and there is evidence to show that they have capacity to backup the proposed construction and funds are available, as observed by the Court below during the course of its order of eviction. What value can be attached to such evidence without there being necessary pleadings. Such pleadings in detail regarding the nature of requirement, extent of requirement, preparedness with the plans of the proposed construction and above all the capacity to back-up the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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