PATEL ISHWARBHAI LALLUBHAI Vs. PARASHOTTAM RANCHHODBHAI

JUDGEMENT

(1.) These three connected revision applications arise out of a decree of recovery of possession of suit premises that has been passed in favour of the original plaintiff by the learned Assistant Judge Kaira at Nadiad in Regular Civil Appeal No. 62 of 1961 from the decree in Civil Suit No. 96 of 1959 of the Court of Civil Judge (Junior Division) Petlad. The learned Assistant Judge has ordered ejectment of the original defendants Nos. 1 to 4 from the suit premises. The decree is passed on the ground covered under clause (b) of sub-sec (1) of sec. 13 of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (Bombay Act No. LVII of 1947) which will hereafter be referred to as the Act. The learned Judge has however. rejected the Plaintiffs case that the premises which were lands were reasonably and bona fide required by the landlord for the erection of a new building covered under clause (i) of sub-sec (1) of sec. 13 of the Act. Ten learned Judge has also rejected the plaintiffs plea that the said defendants have unlawfully sub-let the whole or part of the premises since the coming into operation of the Act. Thus the grounds of ejectment which were pleaded by the plaintiff relying on clauses (e) and (i) were not accepted by the learned Assistant Judge. However the learned Judge has accepted the case of the plaintiff that the defendants had without the landlords consent given in writing erected a permanent structure on the lands and has thus passed a decree of ejectment on the ground covered under clause (b) of sub-sec. (1) of sec. 13 of the Act. ... ... ... ... ...

(2.) Thus the learned Assistant Judge has considered all the relevant evidence and on a consideration of the nature of the structure made the materials used in the making of the structure and the purpose for which it has been erected has reached a conclusion that the offending new construction was a permanent structure. It appears that the construction so made is lasting in duration having regard to the materials used and the nature of the construction so found by the learned Assistant Judge. This will thus satisfy the objective test which is required to be employed in finding out the nature of the structure being permanent. As observed by a Division Bench of this High Court in Khureshi Ibrahim Ahmed v. Ahmed Haji Khanmahomad (Bhagwati and Mehta JJ.) A.I.R. 1965 Gujarat 152 at page 154 (VI G.L.R. 27 at p. 32) :

(3.) It was urged by Mr. Karlekar that the learned Assistant Judge has in para 15 of his judgment made an observation that the intention of the defendant was to make permanent structure and has thus treated the intention as the test for determining the nature of the structure and this was employing the subjective test and offended against the ratio of the decision of this Court in Khureshi Ibrahim Ahmed v. Ahmed Haji Khanmahomad (supra). But it must be remembered that the aforesaid was the inference which the learned Assistant Judge drew from the nature of the construction the materials used and the purpose for which the upper storey construction was made as observed by him and the observations must be read in that context. In my view there is nothing objectionable in this process of reasoning and this is not employing a subjective test. When one reads the context in which learned Judge has made this particular observation or inference then it is clear that he has not applied the test of intention. Ten learned Judge has in this connection considered the evidence of defendant No. 3 of his witness Dayabhai of the commissioner and has also considered the report of the commissioner and then looked into the nature of the construction the materials used and the purpose for which the construction is made and has observed that: From the nature of construction material used and the purposes for which upper storey was constructed it can well be said that intention of the defendant was to make permanent structure. The learned Judge has in continuation further observed that: Bath-room and latrine are also permanent structures. From the evidence on record it can well be said that the construction put in 1954 is of permanent character. Thus it is clear that the intention considered by the learned Judge was the intention of the defendant as to the permanency of the structure erected by him and not the defendants intention as regards the length of time for which the defendant wanted to make use of the structure. Thus Mr. Karlekar is not right in his submission that the test of intention was employed by the learned Judge in reaching his conclusion in the matter and this has led to miscarriage of justice.