Bachawat, J. - (1.) This appeal arises out of a suit by a landlord against a tenant and a sub-tenant for recovery of land situate near the cloth market in the city of Gadag, taluk Gadag, bearing City Survey No. 1577/17 measuring 124-4 sq. yards, excluding a portion thereof towards the northeast corner measuring about 10-11 feet in length and 10-11 feet in breadth. The Civil Judge Junior Division, Gadag dismissed the suit. On appeal, the Second Additional District Judge, Dharwar, set aside the judgment of the trial Court and decreed the suit. The High Court of Mysore dismissed a revision petition preferred by the defendants. The defendants now appeal to this Court by special leave.
(2.) The Additional District Judge, Dharwar found that the suit premises are land not used for agricultural purposes, and are reasonable and bona fide required by the plaintiff landlord for the erection of a new building and consequently, the ground of eviction mentioned in S. 13(1)(i) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bombay Act, No. 57 of 1947), hereafter referred to as the Act, was made out. He repelled all the defence contentions and decreed the suit. The High Court in its revisional jurisdiction refused to interfere with this decree. Counsel for the appellants argued that the suit was barred by res judicata by reason of proceedings in Civil Revision Application No. 1893 of 1954 in the Bombay High Court. The trial Court and the first appellate Court concurrently found that the claim for eviction under S. 13(1)(i) was not barred by res judicata. The plea of res judicata was not taken by the appellants before the High Court and is no longer open to them Before the High Court, the appellants attempted to raise a plea under S. 13(3) of the Act, but this plea was not raised in the first two Courts and was rightly rejected by the High Court.
(3.) Counsel for the appellants however, submitted that the suit premises are building and ground appurtenant to the building and are not land within the purview of S. 13 (1)(i) and consequently the landlord cannot claim eviction under S. 13 (1)(i) To appreciate the contention, it is necessary to set out the following facts. The respondent landlord purchased the aforesaid City Survey No. 1577/17 on June 17, 1946 Defendant No. 1 was the lessee of the property under a rent note dated August 28, 1948 executed by the previous owner. The lease was for five years and expired on August 28, 1948. The present suit was instituted on June 3, 1957. The rent note covered the entire City Survey No. 1577/17 including not only the suit land but also the portion on the northeast corner outside the purview of the suit. On the northeast corner there is a temporary structure erected by the landlord, and this structure is in the occupation of a sub-lessee, one Malkajappa Nargund. The Courts below have concurrently found that the suit in respect of the land excluding the northeastern portion is maintainable. This finding is no longer challenged. In this appeal, we are, therefore, not concerned with the tenancy in respect of the portion on the northeast corner. Defendant No. 1 constructed a building on the suit land, and both defendants are carrying on business there. The respondent now seeks to recover possession of the suit land under S. 18(1)(i) of the Act. Section 5(8) of the Act defines 'premises' thus: "5. In this Act unless there is anything repugnant to the subject or context - ********** (8) 'premises' means- (a) any land not being used for agricultural purposes, (b) any building or part of a building let separately (other than a farm building) including- (i) the garden, grounds garages and outhouses, if any, appurtenant to such building or part of building. (ii) any furniture supplied by the landlord for use in such building or part of a building, (iii) any fittings affixed to such building or part of a building for the more beneficial. enjoyment thereof, but does not include a room or other accommodation in a hotel or lodging house," ;