VIRJI NATHURAM Vs. KRISHNAKUMAR ALIAS LALA SHIVGOPAL SHUKLA

JUDGEMENT

(1.) This petition under Article 227 of the Constitution is by 14 persons who are obstructing the execution of a decree obtained by the respondent in a suit being F.A.E. & R. Suit No. 124/856 of 1964 filed by the latter in the Court of Small Causes at Bombay. The said suit had been filed against Shivnarayan and Surajmal under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act (hereinafter referred to as the "Bombay Rent Act") for possession of a plot of land which had been originally given to the aforementioned Shivnarayan under a registered lease deed dated 29th September, 1962. Under the said lease deed the respondent had prohibited the said Shivnarayan from sub-letting the plot without his prior permission, but a clause in the lease deed had permitted the said Shivnarayan to erect structures which he was allowed to let out to third parties.

(2.) The suit, however, had been filled on the ground, among others, that the said Shivnarayan was guilty of arrears of rent for more than six months and that the respondent was entitled to a decree under section 12(3) of the Bombay Rent Act. The trial Court passed a decree on 27th November, 1974. An appeal, being Appeal No. 183 of 1975, preferred, by the said Shivnarayan and Surajmal came to be dismissed by the Appeal Court because the appellants did not comply with certain orders passed by the Appellate Court.

(3.) Thereafter the respondent took out execution proceedings and in these execution proceedings, the petitioners have caused obstruction. The respondent, therefore, took out Obstructionist Notice No. 157 of 1976 for the removal of the obstruction on the ground that the petitioners are claiming through the judgement debtors and they had no right to remain in possession of the property. The petitioners, however, resisted the obstructionist notice by contending that they had been lawfully let in the structure erected by the original judgement-debtor under the express permission granted by the lease deed itself. According to them, the lease deed not only did not prohibit but specifically permitted the original tenant to construct a structure and to induct third parties into the said structure. If this permission given under the lease deed is properly interpreted and if the action of the original judgement-debtor is appreciated in the light of this provision contained in the lease deed, then the petitioners would be tenants of the structure which had been erected on the land originally let out to the judgement-debtor. The thrust of the arguments on behalf of the petitioners in the Court of first instance was that being thus legal tenants of the structure, they could not be evicted in execution of a decree which was obtained by the respondent in respect of the open plot of land only.