SUTHAR KANUBHAI MOHANBHAI Vs. MAHENDRABHAI DAHYABHAI DESAI

JUDGEMENT

(1.) A short but interesting question arises as to whether lease of the super structure put up by the lessee on the open plot of land amounts to subletting of the land and exposes the original lessee of the land to the consequences of eviction under section 13 (1) (a) of the Bombay Rents Hotels and Lodging House Rates Control Act 1947 (hereinafter referred to as the Bombay Rent Act) as in force in this State. The question arises in the following circumstances:

(2.) . In the suit filed by the original lessors of the land being Regular Civil Suit No. 219 of 1974 on the file of Civil Judge (J. D.) Sankheda the plaintiff landlord averred that open plot of land of S. No. 798/2 ad measuring about 20 gunthas more particularly described in the schedule to the plaint and situate on the station road in Bahadurpur town of Sankheda taluka in Baroda district was let out originally to one Mohanbhai at the annual rent of Rs. 625.00 for a period of one year prior to 1962 though it is not clear from the record precisely as to in which year this lease was affected. On expiry of the term of the lease Mohanbhai be came a statutory tenant. On his demise it is so averred in the plaint the original defendant No. 1 the petitioner herein who was the son of said Mohanbhai had become the statutory tenant. It has been alleged in the plaint that the petitioner defendant had sublet transferred or assigned his interest in the demised land to defendants Nos. 2 3 and 4 which he was not entitled to under the law and therefore the plaintiff landlord prayed for a decree of eviction.

(3.) . The suit was resisted by the defendant petitioner inter alia on the ground that originally this land was demised to his brother Dalsukhbhai Mohanbhai who died before 15 years. He had put up some Kutcha structure on the said land and was carrying on his business on the said land as a tenant. After his death the plaintiff landlord gave open land save and except that covered with the structure put up by said Dalsukhbhai on lease to the petitioner defendant No. 1. Since the deceased Dalsukhbhai left no legal heirs behind him the petitioner defendant No. 1 inherited the said structure and became the owner thereof in other words the petitioner pleaded that the lease granted by the plaintiff landlord was for open land only and he was the owner of the structure which he inherited from deceased Dalsukhbhai and therefore there was no subletting assignment or transfer of the land demised by the lease granted by the plaintiff landlord to him in the year 1962. The denied that defendants Nos. 2 3 and 4 had put up the structure or the shed as alleged by the plaintiff. The petitioner defendant No. 1 also contended that the plaintiff landlord had intentionally omitted to specify the date of the cause of action because the petitioner defendant No. 1 and his deceased brother had become tenants of the open land before the Bombay Rent Act was made applicable to the area within the town limits of Bahadurpura and therefore the suit was liable to be dismissed exfacie. He also pleaded that the suit was bad for want of notice. Defendants Nos. 2 3 and 4 who are alleged sub-tenants have filed their respective written statements. Defendant No. 2 in his written statement denied that there was any subletting assignment or transfer of the land leased to defendant No. 1. Defendant No. 3 however supported the plaintiff admitting that he was a sub-tenant of the suit land for which he was paying annual rent of Rs. 300.00 at the rate of Rs. 25.00 per month to defendant No. 1. Defendant No. 4 made a limited submission in his written statement stating that he was doing his business of cloth in the shop let out to him by defendant No. 1 for which he was recovering monthly rent of Rs. 25.00 per month from him and that he is a tenant of the petitioner defendant No. 1.