Syed Moin Pasha Vs Madhavi Ramesh

@JUDGMENTTAG-ORDER

M. Seetharama Murti, J.@mdashThe unsuccessful petitioner/tenant preferred this Civil Revision Petition under Section 22 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (''the Act'' for short) assailing the orders dated 05.06.2012 of the learned Additional Chief Judge, City Small Causes Court, Hyderabad made in R.A. No. 121 of 2011 whereby the learned Additional Chief Judge while dismissing the appeal had confirmed the orders dated 16.03.2011 of the learned III Additional Rent Controller, Hyderabad made in R.C. No. 336 of 2008 filed by the petitioner/tenant under Section 8(5) of the Act requesting the Court to permit the petitioner/tenant to deposit the monthly rents of Rs. 2,000/- for the period from February 2008 to September 2008 @ Rs. 250/- per month and continue to deposit the future monthly rents from October 2008 onwards to the credit of the petition.

2. The case of the petitioner/tenant is this:- "Since 1974, the tenant/petitioner (''the petitioner'' for short) is in peaceful possession and enjoyment of the mulgi bearing No. 10-1-128/15 at Masab Tank, Hyderabad more fully described in the schedule annexed to the petition. He had taken the said mulgi from the respondent/landlady (''the respondent'' for short) on lease on an initial monthly rent of Rs. 150/-. The present monthly rent payable by the petitioner to the respondent is Rs. 250/-. While so, in the month of March 2008, the Greater Hyderabad Municipal Corporation (GHMC) had widened the roads in the Masab Tank area, where the petition schedule property is situate. At that time the GHMC had marked 13 feet length for demolition out of 27 feet length of the petition schedule mulgi. In fact the petitioner himself wanted to demolish the marked area of 13 feet with a view to safeguard the rest of the property and so as to continue his business smoothly. However, the respondent neither came forward to demolish the affected area nor allowed the petitioner to do the same. The GHMC in collusion with the respondent had demolished the mulgi to a larger extent, which is more than the required 13 feet. Therefore, the petitioner had filed a writ petition before this Court to prevent the GHMC from dispossessing him from the schedule mulgi. Taking advantage of the demolition, the respondent is trying to create problems for the continuation of the business in ''Embroidery'' being carried on by the petitioner in the place left over after demolition by the GHMC. The petitioner is regularly paying monthly rents after demolition of a part of the mulgi. The petitioner had sent the rent for the months of February 2008 to July 2008 to the respondent by a money order, but the respondent/landlady had refused to receive the said rents and the money order was returned with the endorsement ''property demolished by the GHMC''. Then the petitioner had got issued legal notice dated 14.07.2008 through his counsel calling upon the respondent to notify her bank account for the purpose of depositing the monthly rents regularly into the said account. Though the notice was served on the respondent/landlady on 17.07.2008 she did not either issue a reply or furnish the details of her bank account. Hence the petition is filed for permission to deposit the arrears of rents and future rents into the Court."

3. The averments in the counter of the respondent, in brief, are as follows: "This respondent has not taken any steps to demolish the portion of the property. The averments in the petition that this respondent had colluded with the authorities of the GHMC and that the GHMC had demolished more than the affected area are false. The petitioner along with some others had filed a writ petition seeking direction to the GHMC not to demolish the suit schedule mulgi for road widening purpose, but, the same was dismissed holding that the structures have already been demolished by the GHMC. After demolition of the mulgi, the petitioner had illegally trespassed into the schedule property by constructing support walls and fixing asbestos sheets without the permission of the respondent. He is in illegal occupation of the schedule property. As there is no lease agreement in respect of the schedule premises between the parties, the petitioner has no locus standi to either ask the respondent to furnish a bank account number or to deposit the rents. Hence the petition may be dismissed."

4. At the time of enquiry, P.W. 1 was examined and exhibits P1 to P15 were marked on the side of the petitioner. The respondent and a supporting witness were examined as R.Ws. 1 and 2. No documents were exhibited on the side of the respondent. On merits, the learned Rent Controller had dismissed the petition and the said orders were confirmed in the appeal by the learned Additional Chief Judge.

5. I have heard the submissions of the learned counsel for the revision petitioner. The respondent had not appeared despite service of notice. And, none appeared for the respondent. I have perused the material record.

6. Now the point for determination is:

"Whether there is subsisting jural relationship between the petitioner/tenant and the respondent/landlady? And if so, whether the petitioner had made out valid and sufficient grounds for according permission to deposit the arrears of rents and the future rents into Court?"

7. Point:

7. (a) The pleadings of the parties are already stated supra, in detail. I have perused the oral and documentary evidence carefully. Admittedly, during the road widening work undertaken by the GHMC, a part of the suit schedule mulgi was affected in the road widening and, therefore, the GHMC had demolished the affected portion of the mulgi. According to the petitioner the length of the mulgi was 27 feet and the length of the affected area by road widening was 13 feet, but, the GHMC in collusion with the respondent had demolished larger extent of area than what was marked for demolition and required for road widening. According to the further case of the petitioner, after such demolition of a part of the mulgi, he had got affected necessary repairs to the remaining part of the mulgi and is continuing his business in ''Embroidery'' in remaining extent/portion of the schedule mulgi and that, therefore, the jural relationship subsists between the parties. Though the area of the mulgi is now reduced, according to the version of the petitioner he is willing to pay the rent at the rate of Rs. 2507- per month, but, the respondent had refused to receive the rents and had also refused to receive the rents sent through Money Order saying that the property is demolished by the GHMC and that, therefore, after issuing a legal notice to which there is no reply, he is constrained to file the petition for permission to deposit the arrears of rents and future rents into Court. On the other hand, the case of the respondent as borne out by record is that after the demolition of the mulgi the petitioner had highhandedly trespassed into the property and had constructed support walls and fixed asbestos sheets without the permission of the respondent and that, therefore, he is a trespasser and he is in illegal occupation of the property; and there is no landlord and tenant relationship between the parties. Be that as it may.

7. (b) The evidence of the petitioner on record brings to the fore the fact that after demolition of a part of the mulgi, the petitioner is still continuing in possession of the property which admittedly belongs to the respondent. To restate, according to the version of the petitioner, only a portion of the mulgi was demolished and that he had got repaired the remaining extent of the mulgi and is continuing as a tenant being in possession of the petition schedule mulgi of the respondent; on the other hand, the case of the respondent is that; the entire mulgi was demolished and with that the relationship of landlady and tenant had come to an end and that inspite of the said facts, a new structure was raised by the petitioner by trespassing into the property left over after demolition of the entire super structure/mulgi. The settled legal position is that a lease of a shop pertains not only to the super structure but also the site on which the super structure exists. Therefore, as rightly contended, though the super structure is demolished either in part or in full, the tenancy continues and the destruction of the super structure alone does not bring the tenancy to an end. In a decision in the case of T. Lakshmipathi and Others Vs. P. Nithyananda Reddy and Others, the facts are as follows:- "A decree for eviction was passed in favour of the 1st respondent as per the grounds available under Section 10(2)(i) and 10(3)(b)(iii) of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 by the Court below and the said findings were upheld by the High Court. The said findings were under challenge in the appeal by Special Leave before the Hon''ble Supreme Court and the said appeal was filed by the persons in occupation of the premises." Among the case facts which are complex in view of the multiple litigations between the parties, the only relevant fact which is necessary to be referred is this:- The tenancy premises have been demolished and new premises have been constructed in place of old one by transferees in connivance with the tenants.'' Having considered the above facts and other facts, the Hon''ble Supreme Court held as follows:--

"19. The tenancy cannot be said to have been determined by attracting applicability of the doctrine of frustration consequent upon demolishing of the tenancy premises. Doctrine of frustration belongs to the realm of Law of Contracts; it does not apply to a transaction where not only a privity of contract but a privity of estate has also been created inasmuch as lease is the transfer of an interest in immovable property within the meaning of Section 5 of the Transfer of Property Act (wherein the phrase ''the transfer of property'' has been defined), read with Section 105, which defines a lease of immovable property as a transfer of a right to enjoy such property. (See observations of this Court in this regard in Raja Dhruv Dev Chand Vs. Harmohinder Singh and Another, . It is neither the case of the appellants nor of the respondents No. 2 and 3 that the subject matter of lease was the building and the building alone, excluding land whereon the building forming subject matter of tenancy stood at the time of creation of lease.

20. In Woodfall''s Laws of Landlord and Tenant (28th Edition, Vol. 1) the relevant law is so stated:--

"Where the lessee covenants to pay rent at stated period (without any exception in case of fire), he is bound to pay it, though the house be burnt down; for the land remains, and he might have provided to the contrary by express stipulation, if both parties had so intended. And this rule applies, although the lessee''s covenant to repair contain an exception in case of fire. Similarly, an action for use and occupation still lies in respect of the whole period of the tenancy notwithstanding the destruction of the premises by fire."

"In a lease of land with buildings upon it the destruction of even the entirety of the buildings does not affect the continuance of the lease or of the lessee''s liabilities under it, unless so provided by express contract."

"A demise must have a subject-matter, either corporeal or incorporeal. If the subject- matter is destroyed entirely, it is submitted that the lease comes automatically to an end, for there is no longer any demise. The mere destruction of a building on land is not total destruction of the subject-matter of a lease of the land and building, so the demise continues. But if by some convulsion of nature the very site ceases to exist, by being swallowed up altogether or buried in the depths of the sea, it seems clear that any lease of the property must come to an end."

21. A lease of a house or of a shop is a lease not only of the superstructure but also of its site. It would be different if not only the site but also the land beneath ceases to exist by an act of nature. In the present case the appellants who are the successors of the tenancy right have demolished the superstructure but the land beneath continues to exist. The entire tenancy premises have not been lost. Moreover, the appellants cannot be permitted to take shelter behind their own act prejudicial to the interest of the respondent No. 1 under whom the respondents No. 2 and 3 were holding as tenants and then inducted the appellants.

22. In D.G. Gose and Co. (Agents) Pvt. Ltd. Vs. State of Kerala and Another, , while dealing with Entry 49 of List II of the Seventh Schedule of the Constitution, making a reference to Oxford English Dictionary, this Court has held that the site of the building is a component part of the building and therefore inheres in the concept or ordinary meaning of the expression ''building''. Referring to Corporation of the City of Victoria v. Bishop of Vancouver Island, AIR 1921 PC 240, it was held that the word ''building'' must receive its natural and ordinary meaning as ''including the fabric of which it is composed, the ground upon which its walls stand and the ground embraced within those walls".

23. We are, therefore, of the opinion that in the event of the tenancy having been created in respect of a building standing on the land, it is the building and the land which are both components of subject matter of demise and the destruction of the building alone does not determine the tenancy when the land which was site of the building continues to exist; more so when the building has been destroyed or demolished neither by the landlord nor by an act of nature but solely by the act of the tenant or the person claiming under him. Ample judicial authority is available in support of this proposition and illustratively we refer to George J. Ovungal Vs. Peter, , Rahim Bux and Others Vs. Mohammad Shafi, , Hind Rubber Industries Pvt. Ltd. Vs. Tayebhai Mohammedbhai Bagasarwalla and Others, and Jiwanlal and Co. and Others Vs. Manot and Co., Ltd., . The Division Bench decision of Kerala High Court in Dr. V. Sidharthan Vs. Pattiori Ramadasan, , appears to take a view to the contrary. But that was a case where the building was totally destroyed by fire by negligence of the tenant. It is a case which proceeds on very peculiar facts of its own and was rightly dissented from by Bombay High Court in Hind Rubber Industries Pvt. Ltd. v. Tayebhai Mohammedbhai Bagasarwalla & Ors., (supra).

7. (c) Coming to the instant case facts, the petitioner had pleaded the measurements stating that the length of the petition schedule property is 27 feet and that only 13 feet was marked for demolition by the GHMC for the purpose of road widening. The said case pleaded by the petitioner was not denied specifically by the respondent though it is stated by her that the entire mulgi was demolished. It is the specific case of the petitioner that the GHMC in collusion with the respondent had demolished more than the required extent of 13 feet and that even after demolition of the excess extent/portion of the mulgi also there remained some portion of the mulgi. Since the affected area of the mulgi is 13 feet on account of the road widening is not disputed, and as it is settled law that every official act shall be presumed to have been regularly performed, it can safely be said that out of 27 feet length of the mulgi some portion had remained un-demolished as rightly contended by the petitioner.

7. (d) It is borne out by the evidence on record that the respondent is having not only the petition schedule mulgi but also other mulgies adjoining the petition schedule mulgi. In the cross examination of the petitioner it is elicited that there were 4 to 5 mulgies adjoining his mulgi and that 2 to 3 mulgies are still in existence after demolition and that three mulgies were demolished. When it was suggested to P.W. 1 that the entire mulgi was demolished he had denied the said suggestion. In the cross examination of RW1-the landlady, the following points are elicited. "Each shop was admeasuring 27'' in length and 10'' or 14'' in width. There are 10 shops in total, apart from the cellar. I do not remember how much area was demolished by the municipal authority for the purpose of road widening. I do not remember the area which was left after the road widening. After demolition, I am the owner of the remaining/left over portion. After the demolition by the GHMC, I have sold out some mulgies. Exhibit P14 is the Certified Copy of registered sale deed dated 07.02.2008." The above evidence and the admissions of RW1 would show that she is either not aware of the facts or is evading to give the answers. In any view of the matter, on a harmonious consideration, the evidence supports the case of the petitioner. Thus the evidence on record also probablises the fact that the entire subject mulgi was not demolished, though admittedly a larger extent than was required and marked in an extent of 13 feet was demolished for the purpose of road widening. Therefore, in the light of the ratio in the decision and the facts peculiar to the case and on the application of the test of preponderance of probabilities, this Court holds that though a part of the super structure of the mulgi was demolished still some portion of it remained un-demolished and that the tenant/petitioner had affected repairs to the undemolished portion to make it fit for the business and that, therefore, the jural relationship subsists. Hence all the contentions of the respondent that the entire mulgi was demolished and that the erstwhile tenant is a trespasser now and that there is no jural relationship at present cannot be countenanced.

8. Viewed thus, this Court finds that the petitioner had established that the jural relationship subsists and that he had further made out valid and sufficient grounds for according permission as prayed for and that the orders of the Court below, which were passed without proper appreciation of the facts, the oral evidence and the legal position obtaining, are unsustainable under facts and in law. The point is accordingly answered in favour of the petitioner.

9. In the result, the Civil Revision Petition is allowed and the impugned order is set aside and the R.C. No. 336 of 2008 filed by the petitioner/tenant is allowed without costs according permission to deposit Rs. 2,000/- towards the arrears of rents from February 2008 to September 2008 and also the future rents @ Rs. 250/- per month to the credit of the above said RC in accordance with the procedure established by law. Three months time is granted to deposit the entire arrears/rents up to the end of July, 2014. There shall be no order as to costs.

Miscellaneous petitions pending, if any, in this CRP shall stand closed.