BADDEPU MALLISWAMY Vs. PYDA VIRARAGHAVAMA
LAWS(APH)-1963-3-4
HIGH COURT OF ANDHRA PRADESH
Decided on March 15,1963

BADDEPU MALLISWAMY Appellant
VERSUS
PYDA VIRARAGHAVAMA Respondents

JUDGEMENT

- (1.) This is a tenant's revision arising out of an eviction proceeding under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. The respondent-landlord sought to evict the .petitioner from certain residential premises which have been in his occupation as tenant. The Rent Controller Kakinada, dismissed the application. On appeal to the Subordinate Judge, Kakinada, the order of the Rent Controller was reversed and the petitioner was directed to be evicted. The petitioner who is aggrieved by this order, has moved this Court in revision.
(2.) The respondent-landlord is the owner of a somewhat big building which contains several living rooms and kitchens. She leased out separate portions of this building to five different tenants one of whom was the petitioner. Each of these five tenants appears to have taken on lease living rooms and a kitchen. There is a common verandah in the centre of the building. This affords passage to the different portions of the house which have been let out to the different tenants. This verandah is used by all the five tenants for the purpose of ingress to and agress from the portions of the building let out to them. The structure of the building appears to be such that in close proximity to the portion taken on lease by each of the five tenants, lies a portion of the common verandah. The petitioner appears to have been a tenant of the respondent in respect of the same premises for a considerable period of time. But he executed a written lease. Exhibit P-1 only in the year 1949. The evidence in the case shows that the verandah contiguous to the premises covered by Exhibit P-i has been used for years by the petitioner for the purpose of storing goods like bales of cotton and cloth taken on pledge by him. The landlord sought eviction on the allegations that the petitioner has stored goods which he accepted on pledge in the bedroom leased to him, that the premises have been damaged by the storage of goods and that his business activities have seriously inconvenienced and constituted a nuisance to the other tenant occupying the rest of the building. The Rent Controller found that the landlord hopelessly failed to establish storage of goods in the bedroom or damage to the leased premises or any inconvenience or nuisance to the other tenants. Regarding the business user of the common verandah, the Rent Controller found that such user has been in existence prior to and ever since the execution of Exhibit P-1 and that it is not a sufficient ground for directing eviction of the petitioner. The Subordinate Judge, on appeal, came to the conclusion on the same evidence that business user of a portion of the common verandah by the petitioner constituted a diversion of the premises to a purpose for which they were not leased and that therefore the petitioner was liable to be ejected.
(3.) It is important to notice in this connection that the stand taken by the landlord-respondent during the proceedings before the Rent Controller was that the portion of the verandah which was put to business user by the petitioner was not included in the lease, Exhibit P-1. The evidence of the husband of the respondent, who is the only witness on her side, is clearly to this effect. The trend of the cross-examination addressed to the petitioner on behalf of the landlord also pointed in the same direction. It is also not gainsaid that the landlord has been duly receiving rent from the petitioner in respect of the premises in question for a number of years now and that during all these years the petitioner has been making a business user of the portion of the common verandah adjacent to his premises. It is difficult to believe that the landlord did not all these years know about the particular user to which the portion of the verandah had been put by the petitioner. On the other hand, the evidence in the case and the reasonable probabilities inevitably lead to the conclusion that the landlord was fully aware of the manner in which the petitioner had been using the verandah for many years. Yet, for so long a period she did not raise any objection and regularly received rent from the petitioner. Even in her notice, Exhibit P-2 dated 23rd August, 1961 which immediately preceded the eviction proceedings, she merely called upon the petitioner to remove the cotton bales from the verandah. The specific ground stated in Exhibit P-2 to justify this demand was that, the verandah did not form part of the premises leased out to the petitioner. The Subordinate Judge, however, took the view that the portion of the verandah in question is appurtenant to the premises leased out to the petitioner and therefore part and parcel of the leased premises in view of the definition of the expression " building " in the Act. From this premise, he proceeded to the conclusion that the petitioner has been guilty of using the premises for a purpose for which they were not leased. This reasoning of the learned Subordinate Judge seems to my mind to be in conflict with the definite case set up by the petitioner in Exhibit P-2 as well as in the proceedings before the Rent Controller. Besides, the landlord-respondent appears to have acquiesced for a long number of years in the business user of the verandah by the petitioner. The learned Subordinate Judge was, therefore, in error in directing eviction on the ground of such user. In Gibson v. Doeg, (1857) 2 H. & N. 615, the facts were that a lease contained a covenant on the part of the lessee that he would not, without the consent of the lessor, carry on in the demised premises any trade or business whatsoever, nor convert the dwelling houses into a shop nor suffer the same to be used for any other purpose other than dwelling houses. One of the dwelling houses was converted into a public house ar d a grocery shop, and the lessor, with full knowledge of it, for more than twenty years received the rent. The plaintiff, having purchased the reversion of the lessor, brought the action of ejectment for the breach of the covenant. The Court of Exchequer held that the user of the premises in their altered state for more than twenty years, with the knowledge of the lessor, was evidence from which a jury might presume a licence.;


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