LALSANG BHIMJI Vs. HAMIDMIYAN HUSEINMIYAN

JUDGEMENT

(1.) This appeal arises from a suit for eviction filed by the respondent against the appellant. The appellant who was the tenant of the respondent was sought to be evicted from a shop occupied by him at a monthly rent of Rs. 31/as a tenant. The appellant came in the premises as a tenant on 25th October 1955 but failed to pay any rent and this suit was filed on 15th November 1956 The appellant raised various contentions one of which was that he cannot be evicted in view of the provisions of the Saurashtra Rent Control Act 1951 (Act No. XXII of 1951). He also prayed for fixation of standard rent under that Act. It is not necessary to refer to the other contentions as they do not come up for consideration in second appeal. The trial court found against the appellant in respect of the contention that the Saurashtra Rent Control Act applied and that the standard rent could be fixed thereunder. The appellant went in appeal to the District Court and the learned District Judge Jamnagar by his judgment dated 27th of July 1960 has taken the same view as the trial court and has dismissed the appeal. The appellant has therefore come to this court in second appeal.

(2.) The only point urged before me by Mr. R. C. Mankad who. urged the appeal on behalf of the appellant is that the Saurashtra Rent Control Act 1951 (to be referred to hereinafter as the Act) applies to the premises in suit. It is not in dispute that the city of Jamnagar in which the premises are situated is within the area to which the Act extends. The short point, which was urged before the lower courts and also before this court, is whether the premises are exempted from the operation of the Act under sec. 4(2) of the Act. Sub-secs. (1) (2) and (3) of that section specify the premises to which the provisions of the Act do not apply and which are therefore described as exempted premises. Under sub-sec. (1) the Act shall not apply to any premises belonging to the Government or a local authority. Under sub-sec. (3) the Government has power to exempt from all or any of the provisions of the Act certain premises used for a public purpose of a charitable nature or any class of premises used for such purpose premises used by a public trust for a religious or charitable purpose and let at a nominal or concessional rent or premises held by a public trust for a religious or charitable purpose and let with a view to applying the proceeds of rent to such purpose. We are not concerned here with sub-secs. (1) and (3) but with sub-sec. (2) with reads as under:-

(3.) It is necessary to clear the ground with reference to the findings of fact on the question of construction of suit premises the time they were constructed or re-constructed and the nature of re-construction. The premises as they stand at present consist of two shops one of which is occupied by the appellant as a tenant since 25th October 1965 and the other occupied by another tenant named Kanubhai who came on the premises according to his evidence on 13-10-1956. It is undisputed that the building as it now stands is a comparatively recent construction. According to the landlords the building as it now stands was fully constructed in 1905 and according to the appellant it was constructed in or about 1951-1952. The learned appellate Judge has accepted the respondent's version. The old building was however a different building and it consisted only of one single room, which was let out as one shop before 1948 A. D. It was vacated before 1948 and was lying vacant. Then the building underwent considerable changes to which I shall refer presently and new tenants came into the building in October and November 1955one being Kanubhai and the other the appellant. It is now necessary to notice what changes took place. The old building as I have stated earlier consisted of a single room. It had windows in the front wall and no doors. It is admitted by the appellant that the new building has cement flooring R. C. C. roof and its front wall has doors in place of windows. It is also admitted that there is a partition wall dividing the building into two. The learned trial Judge and the learned appellate Judge have both held that the plinth of the new building is new and the walls are new and have been constructed from foundation upwards. Mr. Mankad has not been able to urge that the finding of the lower courts should not be accepted on this aspect of the matter. That being so it must be held that whereas the old building consisted of a single room had mud floor tiled roof and windows in the wall the new building has a new cemented floor new R. C. C. roof four walls with doors in the front wall erected on fresh foundation and a new plinth which is higher in level than the old plinth. As to the time when this new building came into existence the respondent led the evidence of the contractor who had constructed it and relying on that evidence the learned appellate Judge held that the old building was pulled down by 1951 and construction Was started in 1951 but was left because of the dispute between the contractor and the respondent and then really commenced and completed in 1955. The new building therefore according to the learned appellate Judge came into existence in 1955. There is no sufficient reason for not accepting that finding.