Back
1993 Supreme(Guj) 194
Gujarat High Court
Judgename :S.D.Shah
KAMALABEN NAGINBHAI PATEL - Appellant
Versus
BULCHAND narumal - Respondent
Civil Revision249 of 1993
Decided On : 06/11/1993
Headnote:Bombay Rents Lodging House Rates Control Act, 1947 - Sec. 5 (8) (b) (i) - Expression any appurtenant to such building of part of building - Scope and ambit - Indicates a nexus between the premises leased and the premises appurtenant thereto - Appurtenant not a constituent part of the lease but necessary for convenient enjoyment of lease - In the instant case Tenant was merely leased a room in Bungalow - Vast portion of openland toward south of it could not be said to be appurtenat to the leased premises.
The term "appurtenant" has to be construed not in its primary sense but in the secondary non-technical sense such as "usually enjoyed with". The concept indicates something appurtenant to the lease and not the lease itself. So construed it would mean "relatisng to" "adjoining" "an adjucent or accessory" to the premises let. Plain meaning of the provision simplicitor indicates a nexus between the premises leased and the premises appurtenant thereto. There has to be fair and rational correlation between the two premises to be appurtenant must be premises inveitably implied in and essential to the use and enjoyment of the premises let. Not a constituent part of the lease but necessary for the convenient enjoyment of the lease and therefore, intended to the "premises" within its definition in Sec. 5(8)(b) of the Act.
[Para 8]
The entire land which is adjoining to the demised property is not necessarily `appurtenant to the demised property. Entire open parcel of land would not equally pass with a conveyance viz. Rent Note of the principal subject matter viz. room in "Rajvadi Bungalow". What was leased to each tenant was a room in the Bungalow. The room was the principal subject matter of the demise. The question is whether along with such room vast portion of open land towards south was intended to be conveyed and in my opinion such intention cannot be inferred in absence of express grant. It is also pertinent to note that the tenants of Rajvadi Bungalow had their right of egress and ingress from two gates towards west and therefore incidental use of open land towards south do not make such open land ` appurtenant to demised premises. Therefore. while agreeing with the reasoning which found favour with the Division Bench of the Bombay High Court and without expressing any opinion about the conclusion reached by the Division Bench of the Bombay High Court. Court is of the opinion that open land towards south of Rajvadi Bungalow cannot be said to be appurtenant to the leased premises.
[Para 8A)
Bombay Rents Lodging House Rates Control Act, 1947 - Sec. 28 (2) - Jurisdiction - Contemplates suits between land lord & tenant - In the instant case the such land is open parcel of land and there is no prima facie evidence to hold that it was also leased out to tenant or falls with in meaning of word premises as defined in sec. 5(8)(b) of the Act - Jurisdiction of regular Civil Court can not be ousted.
The provisions of Section 28(2) cover a case where in a suit one party alleges that he is the landlord and the other party is the tenant and when the relief asked for in the suit is in the nature of claim which arises out of the Act or any of its provisions.
[Para 13]
The question as to whether said open portion of and is part and parcel of demised premises or not is yet to be tried and as held hereinabove prima facie the said portion do not fall within the definition of word "premises" as defined under section 5(8) of the said Act. In that view of the matter it would not be just and proper to restrain the plaintiff-landlords from putting up construction which they want to put up on the land of their ownership. I am also of the opinion that the vast portion of open land can not be assumed to be let out to the defendant- tenants who are tenants of one single room each in "Rajwadi Bungalow". Simply because the landlord has not put such open land to another use for long period or that said open land was not covered by boundary wall it can not be assumed that the same was rented out to the tenants.
[Para 15]
However, with a view to seeing that the plaintiff-landlords do not deprive the respondent-defendants of their right of enjoyment of the rented premises attempts were made by this court to see that all reasonable conditions which the tenants may suggest are accepted by the landlord.
[Para 17]
( 1 ) THIS revision application is directed against the judgment and order of Extra Assistant Judge, Vadodara in Civil Misc. Appeal No. 292 of 1992 dated 2-2-1993 whereby he has allowed the appeal preferred by present respondents (opponents) and has quashed and set aside the order passed by the trial Court below Exh. 5 in Reg. C. S. No. 1656 of 1992.
( 2 ) IT appears that the petitioners-plaintiffs are the owners of property bearing City S. No. 461/2, Tikka No. 8/4 of Division "c" situated at sayajiganj, Baroda. In the said property there is one old building known as "rajwadi BUNGALOW" with number of rooms therein. There is open land around said bungalow. On the Southern side of said bungalow there is open land of the measurement of 64 Ft/157 Ft. and towards further south there is public road known as "m. S. Patel Road". Towards South the length of open land is 157 Ft. and width of open plot towards West is 64 Ft. while towards Eastern side it is lesser than 64 Ft. On the Western side of said building there is open space and there are two Gates which open on Kadak Bazar road. It is not disputed before this Court that the petitioners-plaintiffs are the owners of the building in question as well as of the open parcel of land. It is also required to be noted that there are approximately 26 tenants in different rooms of the said Rajwadi bungalow. It is very clear from the topography of the suit property that inhabitants of the aforesaid 26 rooms of the building had their right of ex-gress and in-gress towards West from the two gates. However, since on southern side there was an open parcel of land it may be that said open parcel of land was used for the purpose of going to M. S. Patel road towards South. It is also required to be noted that there is facility of water connection provided in the building itself and there are Chokdis in the building itself. However, there is one open chokdi with water connection in the open land and it is the case of the inhabitants of the building that they were enjoying said open chokdi and water connection and also enjoying said open parcel of land since number of years. It is their case that the said open portion of land was adjacent to the leased property, and therefore, the same should be treated as leased "premises" as defined under Sec. 5 (8) of the Bombay Rents and Lodging House Rates Control act, 1947.
( 3 ) IT appears that the owners of the building of the open plot of land wanted to put up construction on the plot of land towards South and therefore they have submitted building plan for commercial complex to Baroda Municipal Corporation. The Baroda Municipal Corporation has sanctioned building plan and pursuant to said sanction the petitioners-plaintiffs wanted to put up construction on said open plot of land. The petitioners have categorically stated before the lower Courts as well as before this court that they do not want, in anyway, to disturb the tenants in Rajwadi bungalow nor do they want to evict them from the premises rented to them. They have also made it clear to the Court that they do not want to diminish any of the facilities available hitherto to the respondentsdefendants (tenants ). However, the inhabitants of the said bungalow have not permitted the petitioners to put up construction on the open plot of land towards South, and therefore, the petitioners-plaintiffs filed Reg. C. S. No. 1656 of 1992 in the Court of Civil Judge (S. D.), Baroda and in said suit they applied for temporary injunction against the respondentsdefendants restraining them from, in anyway, disturbing the plaintiffs in putting up construction on the Southern side as per building permission no. 15/91 granted by Baroda Municipal Corporation.
( 4 ) IT appears that on application for temporary injunction ad-interim injunction was granted by the Civil Judge (S. D.), Baroda on 22-12-1992. After service of summons the respondents-defendants appeared and filed their reply at Exh. 14 and produced docume
