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Gujarat High Court
Judgename :P.N.BHAGWATI, J.B.MEHTA
KHURESHI IBRAHIM AHMEDA - Appellant
Versus
AHMED HAJI KHANMAHOMAD - Respondent
SECOND APPEAL 179 of 1962
Decided On : 06/19/1964
Saurashtra Rent Control Act 1951 – Section 13 (1) (b) – Bombay Rents Hotel and Lodging House Rates Control Act 1947 – Section 13 (1) (b) – Transfer of Property Act Section 108 – Suit Premises – Letter Patent – The pleadings of the parties various issues were raised by the learned trial Judge 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 – Held, no reason why the matter should be remanded to the learned trial Judge for enabling the parties to lead any further evidence on the question whether the structures erected by the defendant were permanent or not – MR. Mankad contended that in any event the findings of the learned Assistant Judge as regards subletting and change of user were not justified by the evidence on record – But it must be remembered that this is a Second Appeal and we cannot therefore permit Mr. Mankad to challenge these findings of the learned Assistant Judge which are findings of fact – Court may however point out that we have gone through the evidence on record and we are of the view that these findings recorded by the learned Assistant Judge were fully justified and even if we were to reappreciate the evidence we would have come to the same conclusion – The last contention raised by Mr. Mankad was a contention of despair and it must straightway be rejected – He urged that we had no jurisdiction to hear this Second Appeal because the learned Judge who referred this Second Appeal to a Division Bench had no power to do so – The ground on which this contention was based was that a reference of a Second Appeal by a single Judge to a Division Bench would take away the vested right of the litigant to prefer a Letters Patent Appeal and this was not permissible but this ground is not well-founded – We cannot accept the proposition that any litigant has a vested right to prefer a Letters Patent Appeal – A Letters Patent Appeal can be preferred by a litigant against a decision of a single Judge in Second Appeal only if the learned Judge who decides the Second Appeal permits him to do so by giving him the necessary leave – No litigant can therefore be said to have a vested right to prefer a Letters Patent Appeal and the contention based on the hypothesis that there is such vested right in a litigant must therefore be rejected – Appeal Allowed
( 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 con
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