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Judgment
C.L. Pangarkar, J.—These two appeals can be disposed of by a common judgment since the substantial questions of law are identical and the dispute is also identical.
The original plaintiffs have preferred these two appeals they having lost before both the Courts.
The facts giving rise to these appeals are as follows:
A single set of facts is being narrated since the facts are almost identical.
Both plaintiffs are the owner of wooden stall 9 X 7 Ft. in an area known as Sindhi Market at Arvi. The said wooden stall is located on the Municipal Land. The said wooden stall was let out by plaintiffs to the defendants. It is their contention that the defendants had agreed to pay rent of Rs. 400/- P.M. The defendants had agreed to vacate the said stall as and when required. The defendants have not being paying the rent. The plaintiff therefore issued a notice to the defendants calling upon the defendants to vacate the said stalls and hand over the possession. Defendants did not vacate, hence the suits came to be instituted.
Defendants resisted the suit and denied that the rent was Rs. 400/- P.M. They also deny that they have not paid the rent as alleged. Their contention is that plaintiff was not even passing rent receipts though rent was paid. Defendants also contended that the said wooden stalls have been embedded in the earth and therefore are governed by the provisions of C.P. & Berar Rent Control Order. Suits could not therefore have been instituted without obtaining the permission of the Rent Controller. The learned Judges of the trial Court held that this property was governed by the Rent Control Order and dismissed the suit. It was held that since the land beneath the stall belonged to the Municipal Corporation the plaintiff was not the owner of the stall. Holding so the suits were dismissed. Appellate Court confirmed the finding. Hence these second appeals.
Second Appeal No. 96 of 1996 was admitted on 6 substantial questions of law. However the learned Counsel for the appellant/respondent agreed that the appeal may be heard on two substantial questions of law i.e. 1 and 4.
In the face of the finding of the trial Court to the effect that the suit property (Wooden Thela) is a movable property, whether the Trial Court as well as the Lower Appellate Court was justified in holding that the suit of the appellant-plaintiff for possession of the suit property was not maintainable as the appellant-plaintiff had no obtained any permission from the Rent Controller to institute the suit?
Whether the Lower Appellate Court was justified in refusing to consider the appellants claim in respect of the arrears of rent and the damages as claimed?
Second Appeal No. 242 of 1998 was admitted on following two substantial questions of law:
I. Whether moveable wooden Thela which is leased out by the appellant to the respondent for running business is protected by the provisions of C.P. & Berar Letting of Premises & Rent Control Order, 1949?
II. Whether for terminating the tenancy of moveable wooden Thela prior permission of the Rent Control Authority is necessary?
I have heard the learned Counsel for the appellant and the respondent.
In Second Appeal No. 96 of 1996 learned Judge of the trial Court has made a very strange observation. In para 14 of the judgment he observed that the suit property is a movable property and therefore notice u/s 106 of the Transfer of Property Act was not necessary. However in para 16 he relied on the definition of the word "premises" in Rent Control order and held that property is covered by that definition and dismissed the suit. If it is a movable property, it is obviously not covered by the Rent Control order.
In appeal No. 242 of 1998 also a very strange observation is made by the learned Judge of trial Court. He observed that since the land beneath the stall is not proved to be let out to plaintiff by Municipal Council there could be no relationship of landlord and tenant between plaintiff and defendant with regard to the wooden stall. Plaintiff has specifically pleaded that wooden stall alone was let out to defendants. The question as to whom the open land belonged is absolutely immaterial. Only question that could have been considered is whether wooden stall was let out or not. The learned Judge does not seem to understand even the basics. Defendant does not even enter the witness box to rebut the statement of plaintiff that he is a tenant of the plaintiff and the adverse inference should have therefore been drawn against the defendant. Learned Judge further seems to be swayed by the fact that plaintiff in his evidence states that he also wants possession of the land beneath the stall. This could have been ignored as having not been pleaded but it could not be a ground to hold non existence of relationship of landlord and tenant. Statement of the plaintiff in the absence of the rebuttal by the defendant has to be accepted to hold that plaintiff in Appeal No. 242 of 1998 was the landlord and defendant was tenant.
In fact the material question that needs to be decided is whether wooden stall could be said to be covered by the provisions of C.P. & Berar Rent Control Order. Undisputed fact is that only wooden stalls were let out to both the defendants. In Appeal No. 242 of 1998 it has come in evidence that the legs of the wooden stalls are embedded in cement platform. While in Appeal No. 96 of 1996 it has come in evidence that the legs of the stall are embedded in the earth. Learned Counsel for the respondent contends that the fact that stall is embedded in earth clearly goes to show that the stall becomes an immovable property and therefore covered by the definition of premises in the Rent Control Order. There is no manner of doubt that in both the cases legs of the stall seem to be embedded in the earth. Question is whether due to the fact that the legs are so embedded the stall becomes premises within the meaning of definition as given in C.P. & Berar Rent Control Order. To determine this the definition of premises as given in C.P. & Berar Rent Control order needs to be looked into. The word Premises is defined thus:
"Premises" means,-
(a) any land not being used for agricultural purposes,
(b) any building or part of a building (other than a farm building) let or given on licence [for residence or for the purpose of practising any profession or carrying on any occupation therein] and includes,-
(i) the garden grounds, garages and outhouses, if any, appurtenant to such building or part of a building;
(ii) any furniture supplied by the landlord for use in such building or part of a building; and
(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]
What is essential therefore is that it must be a building or a part of the building. In no case a wooden stall can be termed as a building. To my mind any structure can be called a building if it is not portable. A wooden stall though its legs are embedded in the earth for stability does not become a building for it can always be removed and reinstalled at another place. It is brought in cross examination of P.W. 2 Kamalnarayan in Civil Suit No. 289 of 1989 that a stall can be shifted at any place. It is thus clear that both these wooden stalls are movable and portable. They are, therefore, not premises to my mind as covered by the definition in the Rent Control Order. Consequently both stalls cannot be said to be governed by the C.P. & Berar Rent Control Order. Since both stalls can be treated as movable property they do not fall within the scope of the Section 106 of the Transfer of Property Act also. Therefore there is no need to even give notice u/s 106 of the Transfer of Property Act. The occupation of the defendants therefore would become illegal only from the date of institution of suit.
In Second Appeal 96 of 1996 the appeal is admitted on the question No. 4 in it. The plaintiff�s case is that defendant has not paid rent from 01.10.1986 to 31.03.1989 at the rate of Rs. 400/- P.M. The defendant denies the arrears and also denies that the rent was Rs. 400/- P.M. Neither party has lead any documentary evidence to show what was the agreed rent. There is, therefore, only a word against word. Story of the defendants that rent was only Rs. 125/-P.M. appears to me to be more probable. Learned Judge of the trial Court should have therefore passed a decree at least to that extent. The plaintiff in Second Appeal No. 96 of 1996 would therefore be entitled to rent for three years prior to September 1989 i.e. for 36 months only at the rate of Rs. 125/- which comes to Rs. 4500/-.
As far as rent in the other appeal is concerned the said appeal has not been admitted on that question of law. Hence I am not considering the award of rent in that appeal. In the circumstances, I proceed to pass the following order:
Both Second Appeals No. 96 of 1996 and 242 of 1998 are allowed. The judgments and decrees passed by both the Courts below in both the suits and appeals are set aside. Regular Civil Suit No. 289 of 1989 is decreed. Defendant shall hand over vacant possession of the suit property to the plaintiff forthwith. Defendant shall pay to the plaintiff Rs. 4500/-. An enquiry into future mesne profits be held from the date of suit till realisation of the possession. Defendant shall pay costs throughout.
Regular Civil Suit No. 324 of 1989 is decreed. Defendant shall handover the possession of the suit property to the plaintiff forthwith. Enquiry into future mesne profits from the date of suit till realisation of the possession be held. Defendant shall pay costs throughout to the plaintiff.
Decrees be drawn up.