- (1.) The premises for consideration in this revision application are three adjoining shops and the roofs of those shops On June 11, 1962, two adjoining shops were given on rent by, a rent-note for a rental of Rs. 313.75 Paise per mensem by the respondents to the applicants. Immediately after that rent-note had been executed the parties entered into another contract and a second rent-note followed of which the copy is Exhibit P. Y. This rent-note was for the letting, of the roofs of the three shops to the applicants, two of the shops being those within the scope of the first rent-note and the adjoining shop being in the occupation of a third person not connected with the applicants. Apparently as the contracts go, there were two tenancies, one tenancy of the two shops and the second tenancy of the roofs of those two shops and the roof of the adjoining third shop. The rent reserved for this second tenancy was Rs. 75/- per mensem. So the rent of the two rent notes was Rs. 388.75 Paise. The tenants have been the same in regard to both the tenancies and the rent-notes.
(2.) The applicants, the tenants, then moved an application for prosecution of the respondents, the landlords, under section 19(2) of the East Punjab Urban Rent Restriction Act, 1949 (East Punjab Act 3 of 1949), alleging that earlier a Rent Controller had fixed fair rent of the demised shops at Rs. 313/- per mensem. The respondents had realised and were realizing excess rent of Rs. 75/- per mensem contrary to the provisions of section 6 of the Act which prohibits a landlord from claiming, in any circumstances, anything in excess of fair rent and renders a contract null and void if it purports to create a rental over and above the fair rent fixed for particular premises.
(3.) The parties were before the Rent Controller as also in appeal before the Appellate Authority a little earlier when the respondents sought eviction of the applicants under the second tenancy from the demised top of roofs of the three shops on the ground of nonpayment of arrears of rent. The position taken by the applicants then was that the two shops let to them under the first rent-note comprised the totality of the building let to them, so that there was impossibility of the top side of the roofs of those two shops being let over again to them even though the roof of a third shop was also added to those roofs, the arguments having been (a) that such a tenancy was impossible and (b) that, in any case, the letting of the roofs under the second rent note was not letting of a building as that expression is defined in clause 2 (a) of the Act. The Appellate Authority in its order of June 10, 1966, copy annexure R. 1, rejected both the arguments coming to the conclusion that there was nothing impossible in letting a building and then creating a separate and an independent tenancy of the roof of a building having nothing to do with the enjoyment of the tenancy of the building itself, and that the expression building as in section 2(a) of the Act including within its scope a part of a building, a fraction of a building would be within that definition and hence a roof or a part of roof would be within that definition. So an eviction order was made against the applicants. As has been stated. the Appellate Authority's order is dated June 10, 1966, and the application, out of which the present revision application has arisen, was moved by the applicants, the tenants, on November 4, 1967.;