KAMALABEN NAGINBHAI PATEL Vs. BULCHAND NARUMAL

JUDGEMENT

(1.) This revision application is directed against the judgment and order of Extra Assistant Judge, Vadodara in Civil Misc. Appeal No. 292 of 1992 dated 2-2-1993 whereby he has allowed the appeal preferred by present respondents (opponents) and has quashed and set aside the order passed by the trial Court below Exh. 5 in Reg. C. S. No. 1656 of 1992.

(2.) It appears that the petitioners-plaintiffs are the owners of property bearing City S. No. 461/2, Tikka No. 8/4 of Division "C" situated at Sayajiganj, Baroda. In the said property there is one old building known as "RAJWADI BUNGALOW" with number of rooms therein. There is open land around said bungalow. On the Southern side of said bungalow there is open land of the measurement of 64 Ft/157 Ft. and towards further South there is public road known as "M. S. Patel Road". Towards South the length of open land is 157 Ft. and width of open plot towards West is 64 Ft. while towards Eastern side it is lesser than 64 Ft. On the Western side of said building there is open space and there are two Gates which open on Kadak Bazar road. It is not disputed before this Court that the petitioners-plaintiffs are the owners of the building in question as well as of the open parcel of land. It is also required to be noted that there are approximately 26 tenants in different rooms of the said Rajwadi bungalow. It is very clear from the topography of the suit property that inhabitants of the aforesaid 26 rooms of the building had their right of ex-gress and in-gress towards West from the two gates. However, since on Southern side there was an open parcel of land it may be that said open parcel of land was used for the purpose of going to M. S. Patel road towards South. It is also required to be noted that there is facility of water connection provided in the building itself and there are Chokdis in the building itself. However, there is one open chokdi with water connection in the open land and it is the case of the inhabitants of the building that they were enjoying said open chokdi and water connection and also enjoying said open parcel of land since number of years. It is their case that the said open portion of land was adjacent to the leased property, and therefore, the same should be treated as leased "premises" as defined under Sec. 5(8) of the Bombay Rents and Lodging House Rates Control Act, 1947.

(3.) It appears that the owners of the building of the open plot of land wanted to put up construction on the plot of land towards South and therefore they have submitted building plan for commercial complex to Baroda Municipal Corporation. The Baroda Municipal Corporation has sanctioned building plan and pursuant to said sanction the petitioners-plaintiffs wanted to put up construction on said open plot of land. The petitioners have categorically stated before the lower Courts as well as before this Court that they do not want, in anyway, to disturb the tenants in Rajwadi bungalow nor do they want to evict them from the premises rented to them. They have also made it clear to the Court that they do not want to diminish any of the facilities available hitherto to the respondentsdefendants (tenants). However, the inhabitants of the said bungalow have not permitted the petitioners to put up construction on the open plot of land towards South, and therefore, the petitioners-plaintiffs filed Reg. C. S. No. 1656 of 1992 in the Court of Civil Judge (S.D.), Baroda and in said suit they applied for temporary injunction against the respondentsdefendants restraining them from, in anyway, disturbing the plaintiffs in putting up construction on the Southern side as per building permission No. 15/91 granted by Baroda Municipal Corporation.