KANHYALAL Vs. LAXMAN

JUDGEMENT

(1.) The petitioner - plaintiff and filed rent case against the respondent - tenant under the provisions of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954 (hereinafter referred to as the "Hyderabad Rent control Act )" in which he claimed for a decree for eviction in respect of " theree khans on the eastern side of the house bearing M. N. 3-13-74 situated at Pandariba Aurangabad. Though this application for ejectment was initially rejected by the Rent Controller, Aurangabad, it was finally granted in an appeal against the order of the Rent Controller by the District Judge, Aurangabad, whose decision was canfirmed by this Court in Special Civil Application No. 2213 of 1971 decided on 28 th February 1975. The petitioner then filed a proceeding for execution of the order of ejectment in his favour. Section 34 of the Hyderabad Rent Control Act provides that every order under sections 3, 4, 5, 15, 17, 25, 26 and 33 may be executed by the Controller as a decree of the Civil Court. Admittedly, the order sought to be executed was an order under section 15 of the said Act. In the course of the original proceeding the premises were inspected by the Rent Controller and he drew a rough plan which is on record at page 131 In the course of his evidence a positive statement was made dy the respondent - tenant with regard to the extent of the suit premises and he had stated as follows :

(2.) In execution proceedings the defendant filed an objection to the effect that the plaintiff did not describe the suit portion of three Khans with reference to any particular boundaries and unless the decree is modified or altered, possession of the premises in the occupation of the defendant could not be handed over. It appears the contention was that the defendant was in occupation of a struture and open space and that there was nothing 10 indicate in the decree that the open space was also the subject matter of the suit. Admittedly some portion of the original structure of three khans is dilapidated and there is a wall with a door beyond which there is some open space. According to the plaintiff, this wall and the door had been constructed by the defendant after the order for possession was made while the defendant claims that the wall has been there since before the premises were taken on lease by him and that he had not constructed the wall or the door. This objection that the decree was unexecutable because of vagueness was inquired into by the Additional Rent controller, Aurangabad, who found that in the third khan of the rear portion some unauthorised construction had been made in brick and mud and an old door was fixed in the rear wall facing the open yard of the suit house. He also found that the wall was unauthorised and put up in order to make out the case that open yard at the rear was something distinct from the premises which were token on lease which were taken on lease which were only up to the wall. The Rent Controller had asked the defendant to clarify as to how he was in possession of the open yard, but beyond stating that the open yard was not a part of the suit premises, the defendant was not able to make any statement as to on what terms he was occupying the open yard and, as the order of the Rent Controller shows, he refused to say anything about his status so far as the open space is concerned. The Rent Controller, therefore, found that there was no ambiguity in description, situation and size of the suit premises which included three khans and the adjoining open space on the statement made by the defendant himself. He, therefore, passed the order that the plaintiff should be put in possession of the suit premises consisting of three khans on eastern side along with open space appurtent to it by evicting the defendant and the Clerk of the Court was appointed as the Commissioner to execute the decree. Against this judgment the defendant tenant filed an appeal. The learned District Judge who decided the appeal seems to have taken the view that the landlord was seeking possession of some portion which was not covered by the suit, this portion being the open space at the rear. The learned Judge found some difficulty in ascertaining where the wall was constructed. According to the learned Judge, the executing Court ought to have determined the portion of three khans on the eastern said of house bearing No. 3 13-74 because possession of that portion was to be delivered to the plaintiff. The learned Judge also found himself unable in his own words "to follow as to where was the open sit of which decree-holders are claiming possession."

(3.) Consequently he held that the plaintiffs were not entitled to possession and if the tenant was in occupation of some more space, then the remedy of the landlord will be file a suparate suit in respect of those premises. The learned District Judge, therefore, allowed the appeal and set aside the order of the Rent Controller. The matter was remanded to the executing Court for ascertaining the three khans on the eastern side let out to the tenant in respect of which the decree was passed and a direction was given that possession of only those premises should be delivered to the plaintiff. It is this order which is now challenged by the plaintiff in this petition.