BAI CHANCHAL Vs. SYED JALALUDDIN+

JUDGEMENT

(1.) The predecessors-in-interest of plaintiff-respondents 1 to 3 gave, in 1895, land, bearing Serial Nos.503 and 506 of Asarva within the limits of Ahmedabad Municipal Corporation, on lease for a period of 49 years at an annual rent of Rs. 199/-, to three persons, Sha Ramchandra Ambaram, Pardesi Sukhlal Anandram and Mehta Bogha Mugatram. These original lessees, during the currency of the lease, made transfers of their rights and also granted sub-leases. A number of Chawls and some other buildings were constructed on the land and some of them were let out on rent. In 1945, the lessors, after serving notice on the occupants to give vacant possession, filed a suit for recovery of possession. The suit was decreed on 8th July, 1946 on the basis of a consent decree as against some of the occupants including the four defendant-appellants. In the agreement, on the basis of which the decree was passed, it was agreed that the defendant-appellants will continue in possession of the property for a period of five years and will hand over possession after the expiry of this period of five years. For this period, they undertook to pay mesne profits every month at various rates on the lands in their possession. Between them, the four appellants were required to pay @ Rs. 227-10-0 per mensem making up an annual amount of mesne profits of Rs. 2731-8-0. Similar terms were included in the consent decree against other defendants who joined the compromise on the basis of which the decree was passed on 8th July, 1946. The remaining defendants in the suit entered into a later compromise and. as a result, another consent decree was passed on 28th January, l949 against those defendants. Under this decree, these remaining defendants were also entitled to continue in possession for a period of five years from the date of the decree, but were required to pay mesne profits for this period. All the defendants governed by the two decrees dated 8th July, 1946 and 28th January, 1949, had to pay between them mesne profits monthly which worked out to an amount of Rs. 7,314-8-0 per annum. Before the expiry of the period of five years prescribed by either of the two decrees, the Custodian of Evacuee Property, in l950, took possession of all the properties, as one of the decree holders had become an evacuee. After the property was released by the Custodian of Evacuee Property, an application was filed by the decree-holders on 26th March, 1953 for execution of the consent decree dated 8th July, l946 and, in that execution, possession was sought against the appellants of the property which was in their possession. Subsequently, a number of suits were filed for recovery of mesne profits also. The Execution Court directed eviction of the appellants after overruling the various objections raised by them in the execution proceedings. The decision of the Execution Court on the objections taken by the appellants was challenged in appeal before the District Judge, in second appeal before a single Judge of the High Court of Gujarat, and by a Letters Patent appeal before a Division Bench. All the Courts rejected the objections raised by the appellants and upheld the order of the Execution Court directing delivery of possession. It is against the judgment of the Division Bench in Letters Patent appeal in this execution that the appellants have come up to this Court in this appeal by special leave.

(2.) It is unnecessary for us to mention all the various objections that were taken at various stages by the appellants in the Execution Court in the Court of the District Judge, or before the single Judge or the Division Bench in the High Court. Only three of the points raised have been urged before us and, therefore, we are called upon to deal with these three only.

(3.) The first point raised is that the decree which was passed on 8th July, 1946 was a nullity, because It was passed in contravention of Section 11 (1) of the Bombay Rent Restriction Act No. XVI of 1939 (here-in-after referred to as "the Act") . This objection has been overruled by the High Court on the ground that the provisions of the Act were not attracted by the lease in question on the expiry of which the suit for ejectment was decreed under the consent decree dated 8th July. 1946. Counsel appearing for the appellants urged that the terms of the decree passed as well as the terms contained in the lease-deed of 1895 show that the Act was applicable because the land, to which the suit for ejectment related, was covered by the definition of "premises" to which the Act applies. The expression "premises" is defined in Section 4 (2) of the Act as meaning -