KHURESHI IBRAHIM AHMEDA Vs. AHMED HAJI KHANMAHOMAD

JUDGEMENT

(1.) The short question which arises in this Second Appeal is as to what is a permanent structure within the meaning of sec. 13(1)(b) of the Saurashtra Rent Control Act 1951 The same expression we find has been used also in section 13(1)(b) of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 and the question as to what is the true connotation of that expression is therefore a question of some importance. In order to appreciate how the question has arisen it is necessary to state briefly the facts giving rise to this Second Appeal.

(2.) One Gulamhussein Haji Dada was at all material times the owner of a piece of land situate in Jamnagar. There was an Ota i. e. a raised platform like structure on the piece of land as also a Fali in it. The piece of land together with the Ota and Fali will hereafter be referred to by us as the suit premises. Gulamhussein Haji Dada was residing most of the time in Burma and one Nurmahmed was therefore looking-after the suit premises on behalf of Gulamhussein Haji Dada. Sometime in 1952 the suit premises were let out to the defendant at the rent of Rs. 6/per month. Soon after taking the suit premises on rent the defendant erected three rooms and a cattle shed with a loft over it on the suit premises. According to the defendant these structures were erected by him with the express consent of Nurmahmed and such express consent was given by Nurmahmed at the time when the suit premises were let out to the defendant. The consent relied on by the defendant was however merely an oral consent and not a written consent. The defendant continued as a tenant of the suit premises after the erection of these structures and regularly paid the rent of Rs. 6/per month which was accepted on behalf of Gulamhussein Haji Dada. Gulamhussein Haji Dada came down to Jamnagar on six or seven occasions after the suit premises were let out to the defendant and the defendant had erected the said structures. The house in which Gulamhussein Haji Dada resided during his visits to Jamnagar was adjoining the suit premises with only a hedge dividing the said house from the suit premises and Gulamhussein Haji Dada therefore knew that the defendant had erected the said structures. Gulamhussein Haji Dada however did not at any time raise any objection to the erection of the said structures by the defendant nor did he take any steps for terminating the tenancy of the defendant and evicting him from the suit premises. This state of affairs continued until 15th August 1960 when Gulamhussein Haji Dada gave a notice terminating the tenancy of the defendant with effect from 30th September 1960. Notwithstanding the termination of the tenancy the defendant did not hand over possession of the suit premises to Gulamhussein Haji Dada. The plaintiff who was looking after the suit premises on behalf of Gulamhussein Haji Dada and was as such the landlord within the meaning of the definition of that term contained in the Saurashtra Rent Control Act 1951 thereupon filed a suit for recovering possession of the suit premises from the defendant. There were three grounds on which possession was sought by the plaintiff. They were:- (1) that the defendant had changed the user of the suit premises by using the suit premises for the purpose of residence though they were taken for the purpose of tethering cattle; (2) that the defendant had sublet the suit premises to his elder brother; and (3) that the defendant had erected he said structures which were permanent structures without the written consent of Gulamhussein Haji Dada. All these three grounds were denied by the defendant in his written statement. The defendant contended that he had taken the suit premises on rent for the purpose of using them not only for the purpose of tethering cattle but also for the purpose of residence and that there was accordingly no question of change of user which would entitle the plaintiff to evict the defendant. The defendant also contended that the said structures were erected by the defendant with the express consent of Nurmahmed and that in any event Gulamhussein Haji Dada had seen the said structures several times when he came down to Jamnagar and had not raised any objection to the same and there was therefore acquiescence or implied consent on the part of Gulamhussein Haji Dada. The subletting alleged by the plaintiff was also disputed by the defendant. The defendant also raised a question as regards the validity of the notice to quit. On these contentions the defendant submitted that the plaintiff was not entitled to recover possession of the suit premises from the defendant.

(3.) On the pleadings of the parties various issues were raised by the learned trial Judge. Issue No. 2 brought out the controversy between the parties in regard to the question whether any permanent structures were erected by the defendant and if so whether the defendant was liable to be evicted. The question as regards sub-letting and change of user was brought out in issue No. 3 and issue No. 4 related to the question whether even if any permanent structures were erected by the defendant the right of the plaintiff to recover possession of the suit premises on that ground was barred by reason of acquiescence or implied consent. There was also an issue as regards the validity of the notice. At the hearing of the suit the only evidence led on behalf of the plaintiff was that of himself. As against the evidence of the plaintiff the defendant led the evidence of himself and Nurmahmed. On this evidence the learned trial Judge held that the said structures erected by the defendant were not permanent structures and the plaintiff was therefore not entitled to recover possession from the defendant on the ground that the defendant had erected permanent structures on the suit premises without the written consent of the plaintiff. On this view the learned trial Judge came to the conclusion that there was no question of acquiescence or implied consent and the issue as regards acquiescence and implied consent was therefore answered against the defendant. The learned trial Judge then proceeded to consider whether the defendant had sublet the suit premises and on the evidence he came to the conclusion that subletting was not proved. The change of user of the suit premises was also held not established by the learned trial Judge. The question of validity of the notice was also considered by the learned trial Judge and he came to the conclusion that the notice was valid. Since in his view no ground was made out by the plaintiff for recovering possession of the suit premises from the defendant the learned trial Judge dismissed the suit with costs.