- (1.) This is an appeal filed with the special leave of this Court. It is directed against the judgment and decree passed on 2nd December 1949, by a Division Bench (Weston and Shah JJ.) of the Bombay High Court reversing, on the ground of absence of jurisdiction, the judgment and decree for possession passed on 24th January 1949 by the Bombay City Civil Court and directing the return of the plaint for presentation to the proper Court.
(2.) There is no dispute as to the facts material for the purposes of this appeal. On or about 15th April 1908, the Board of Trustees for the Improvement of the City of Bombay put up to auction Plots Nos. 16, 17 and 18 of new survey Nos. 8234, 8235 and 8244 situate on the Princes Street Estate of the Board containing an area of 2235 square yards for being let on certain conditions. one Sitaram Luxman was the highest bidder and was declared the tenant at an annual rent per square yard to be calculated at the rate of 4 1/2 per cent of Rs. 29 per square yard and he signed the memorandum of agreement incorporating the conditions upon which the auction was held and by which he agreed to be bound. He deposited the moneys in terms of cl. 3 of the conditions, and upon such payment entered into possession of the Plots. By cl. 7 Sitaram Luxman agreed, within the time specified therein, to build and complete at a cost of not less than Rs. 50,000 a building Consisting of 5 floors with suitable offices, drains etc. according to plans and specifications to be made by an approved architect and approved by the Board. By cl. 17 he agreed, so soon as the main building should be roofed in, to insure in the joint names of the Board and of himself and until the granting of the lease thereinafter provided, keep insured the buildings and works on the plots for the full value thereof. Clause 18 of the conditions was as follows : "18. The lease. Immediately after the completion within the time limited by condition 7 of the said buildings and works to the satisfaction of the Trust Engineer testified by his certificate the Trustees will if the contract how not previously been determined grant to the tenant or his approved nominee who shall accept the same a lease of the said plot with buildings thereon for the term of 999 years from the date of the auction at the year rent calculated in accordance with the accepted bidding for the plot." Clause 25 gave power to the Board, if the buildings were not completely finished within we stipulated time and on certain other contingencies, to forfeit the deposit. and to enter upon and retain possession of the plots and all buildings and works then standing thereon.
(3.) Pursuant to this agreement the said Sitaram Luxman erected on those plots a building which has since come to be known as the New Sitaram Building. On the completion of the building, by an Indenture of lease made on 19th April 1916, between the Trustees for the Improvement of the City of Bombay and one Rustomji Dhunjibhoy Sethna the receiver of the estate of Sitaram Luxman appointed by the High Court in Suit No. 720 of 1913, the Trustees, pursuant to the said agreement and in consideration of the monies which had been expended in the erection of the buildings and of the rent and the covenants thereinafter reserved and contained, demised unto the lessee all that piece of land situate on their Princess Street estate together with the buildings erected thereon to hold the same for 999 years from 15th April 1908, paying therefor up to 15th January 1909, the rent of Re. 1 and during the remainder of the term the yearly rent of Rs. 2,916 by equal quarterly payments. By the said Indenture the lessee covenanted to pay all rates and taxes, not to use or to permit to be used, without the lessor's consent, the portion of land not built upon except as open space, not to pull down, add to or alter the buildings without such consent, to keep in repair all drains, sewers etc., to repair, pave, cleanse and paint and amend all the buildings, walls etc., to permit the lessors and their employees to enter upon the premises to inspect the conditions thereof on 48 hours' notice, to use the demised premises for residential purposes or as offices and schools only and not as a public house or liquor shop or for any business or trade, throughout the term to keep the buildings insured against fire in the joint names of the lessor and the lessee and to rebuild or reinstate and repair the building if destroyed or damaged by fire or otherwise. There was a proviso for re-entry for non-payment of rent for 30 days or for breach of any of the lessee's covenants.;