JUDGMENT Kharche S.T., J.
1. Invoking the jurisdiction of this Court under Section 100 of the Code of Civil Procedure, the unsuccessful appellants defendants have filed this second appeal challenging the judgment and decree dated 6-5-1989 passed by the learned District Judge in Regular Civil Appeal No. 61 / 1987, whereby the appeal has been dismissed alongwith cross objections and the judgment and decree dated 2-5-1987 passed by the learned Joint Civil Judge, Junior Division in Regular Civil Suit No. 311 /1983 directing the defendants to deliver the possession of the suit plots shown by letters IJKLMDHG and to pay Rs. 2,390/- with interest on account of arrears of rent, was confirmed.
2. Brief facts relevant for our purpose can be stated as under :
The suit plots No. 721, 722, 723, 724 and 725 in sheet No, 9-C situated at Tumsar were initially owned by Sitabai, the mother of plaintiff No. 3 and grand mother of plaintiffs Nos. 1 and 2. The said open plots were given on lease by Sitabai and Shantaram, plaintiff No. 3 in the name of defendant No. 4 Madhukar Yeshwantrao Kukade from 9-5-1956 on the rent of Rs. 350/- per month for the period of five years with direction that the lease (Exh. 86) shall be renewed at the Will of both the parties after it expiry. The lease was given for erection of saw mill. Thereafter, another agreement dated 9-12-1962 (Exh. 87) was executed whereby the suit plots were agreed to be given in possession of the defendants on rent till the period 30-10-1967 @ Rs. 720/- per year. The parties have agreed that the rent of Rs. 60/ - per month would be payable on 10th of each month and after the expiry of the period of lease the defendants had agreed to vacate it. But, even after the expiry of lease, the defendants did not vacate the premises, and therefore, quit notice dated 26-4-1967 was served and the defendants were called upon to vacate the suit premises by 31-10-1967, but in vain. Thereafter, the second quit notice dated 1-7-1980 was served and the same was not also acted upon and subsequently the third quit notice dated 6-9-1983 was served and the tenancy was terminated and the defendants were called upon to deliver possession of the premises by the end of September, 1983. The defendants did not vacate the suit premises. Sitabai had bequeathed her share to her grant sons, i.e. respondents No, 1 and 2 and they have become the full owners of the property and since the defendants did not vacate it and did not pay the arrears of rent of Rs. 2,160/-and damages @ Rs. 10/- per day from 1-10-1983 amounting to Rs. 230/ -, the plaintiffs were constrained to file the suit for eviction and for recovery of arrears of rent and damages.
3. The defendants contended that the lease deed which was initially executed on 28-6-1956 was in the name of Madhukar, who was minor on that day and it was for a specific period of five years. Similarly, another lease deed was executed on 9-12-1962 in the name of same Madhukar and the period of lease was for five years and both these lease deeds were not registered, and therefore, were not legal and valid. According to the defendants they have acquired title to the suit plots by virtue of adverse possession.
4. The trial Court, on appreciation of the evidence recorded findings that the defendants were in arrears of rent from 1-10-1980 till 30-9-1983 amounting to Rs. 2,160/-, that the notice dated 6-9-1983 was legal and valid and negatived the contentions of the defendants that they have became owners of the suit plots by adverse possession. Consistent with these findings, the trial Court decreed the suit directing the defendants to deliver the possession of the suit plots and to pay arrears of rent, as mentioned above. The defendants being aggrieved by the judgment and decree passed by the trial Court, carried appeal to the District Court. The learned District Judge on re-appreciation of the evidence and considering the law position, has dismissed the appeal.
5. Mr. Charde, the learned Counsel for the defendants contended that admittedly the defendants have been inducted as tenants in the suit premises including open land by virtue of the lease deed dated 28-5-1956 and they continued to be in possession of the suit plots since then even after the second lease deed dated 9-12-1962. He contended that the plaintiffs have taken a clever stand by splitting of tenancy by virtue of the aforesaid unregistered lease agreements, but splitting of tenancy is not permissible in view of the decision of the Supreme Court in the case of Nitesh Nandkumar Shah v. Sikandar Aziz Patel .
6. He contended that the substantial question of law that arises in this appeal for consideration is whether from the facts and circumstances of the case the lower Appellate Court was right in holding that the C.P. and Berar Letting of Houses and Rent Control Order, 1949 (for short the Rent Control Order) has no application to the suit premises merely because the claim for possession is in respect of a part of premises on which there was no construction when it was leased out, though admittedly, there was a house on the same piece of land. He contended that the definition of premises has been amended by introducing the amendment on 26-10-1989 and the premises included any land or building, and therefore, the permission of Rent Controller would be necessary before the decree for eviction is passed. He contended that as per Clause 13-A of the Rent Control Order which is also introduced by way of amendment in the Rent Control Order, no decree for eviction can be passed in a suit or proceeding filed and pending against the tenant in any Court or before any authority unless the landlord produces a written permission of the controller as required by Sub-clause (1) of Clause 13. He contended that the appeal is only a continuation of the suit and accordingly the word "suit" in the order has to be understood to include an appeal. The result is that if at the time of the institution of the suit for eviction Clause 13-A was not in force, but at the time of appeal such a clause is introduced, the tenant in appeal becomes entitled to its protection. In support of these submissions, he relied on the decision of the Apex Court in the case of Dilip v. Mohd. Azizul Haq and Anr. .
7. Mr. Dharmadhikari, learned Counsel for the plaintiffs contended that the quit notice dated 6-9-1983 was served on the defendants who refused to accept the same and the tenancy of the defendants was terminated and this notice is perfectly legal and valid. He contended that there, are concurrent findings recorded by both the courts below that the plaintiffs are entitled to get the possession of the suit plots from the defendants because the amended provisions regarding the definition of 'premises' as well as Section 13-A of the Rent Control Order was not on the statute. He contended that the suit has been instituted on the basis of this quit notice dated 6-9-83, and therefore, both the courts below were perfectly justified in passing the decree for eviction and no permission of the Rent Controller was necessary for institution of the suit for eviction. He further contended that the defendants were in arrears of rent and both the courts have negatived their contentions that they have became the owners by virtue of adverse possession and in such circumstances, the concurrent findings of fact recorded by both the courts below is not liable to be disturbed. In support of these submissions he relied on the decision of this Court in the case of M.I. Qureshi Yasin Mohammad v. Khatoonbi M.A. Qadar and Ors. 2004(6) Bom.C.R. (N.B.)930 : 2005(1) Mh.L.J. 98.
8. This Court has given thoughtful consideration to the contentions canvassed by the learned Counsel for the parties. The Apex Court in the case of Dilip v. Mohd. Azizul Haq (cited supra) observed in para 7 as under :
In theory the appeal is only a continuation of the hearing of the suit. Accordingly, the word 'suit' in the order has to be understood to include an appeal. The result is that if at the time of the institution of the suit for eviction Clause 13-A was not in force, but at the time of appeal such a clause is introduced, the tenant in appeal becomes entitled to its protection. We draw support for these propositions from the three decisions of this Court cited by the learned Counsel for the appellants. Therefore, we are of the view that the High Court was not justified in holding that there was no appeal filed or pending against the tenant. In this case, although a decree for eviction had been passed in the suit, that decree was under challenge in a proceeding arising out of that suit in appeal and was pending in a Court. Thus an appeal being a rehearing of the suit, as stated earlier, the inference drawn by the High Court that no proceedings were filed or pending against the tenant as on the date would not be correct.
9. However, in para 10 of the same judgment, the Apex Court observed that : "The High Court further took the view that the expression "premises" in the Act (sic order) does not states as to when the amendment was to be effective as it does not state whether the amendment was retrospective or prospective. The same is on the statute book on the date on which the suit or proceeding is pending for purpose of eviction and cannot ignore the provision on the statute book. Therefore, the view of the High Court on this aspect of the matter also, is incorrect. The arguments advanced on behalf of the respondents that these amendments are retrospective in character and could not have been made in the absence of an authority under the main enactment by virtue of which such order is made are untenable".
10. The Apex Court in the case of Nilesh Nandkumar Shah v. Sikandar Aziz Patel (cited supra) considered the scope of Section 106 of the Transfer of Property Act and held as under:
There is a difference between (a) a composite tenancy or a tenancy for a mixed purpose, and (b) an integrated contract of tenancy of dual purposes. In case of tenancy of type (a), for a composite or mixed purpose, the premises are let out for defined purposes, more than one, leaving the option open to the tenant to use the entire tenancy premises as one unit for either or both purposes. The tenancy premises are not divided or demarcated separately into two so as to specify which part of the tenancy premises will be used for what purpose. In other words, in case of tenancy for composite purpose, the two diverse purposes for user of the premises are so blended or mixed up that they cannot be separated by dissecting the tenancy premises into compartments. But, in case of tenancy of type (b), which is a single tenancy for dual purposes, the contract of tenancy is no doubt an integrated one but the premises are demarcated or divided by reference to the purpose for which they will be separately used.
11. What is relevant to note is that the suit is based on the cause of action after serving the notice dated 6-9-1983. This is a case wherein earlier one Sitabai and respondent No. 3 Shantaram had executed the lease agreement dated 9-5-1956 on rent of Rs. 350/- per annum with a direction that the lease shall be renewed at the Will of both the parties after its expiry. Thereafter another agreement of lease executed on dated 9-12-1962 was reduced into writing wherein the open land which was in possession of the defendants was given on rent till the period 31-10-1967 @ Rs. 720/- per annum and it was mentioned in the agreement that the rent of Rs. 60/- per month shall be recovered and it shall be payable on 10th day of each month. Thus, the first lease agreement (Exh. 86) dated 28-5-56 has nothing to do with cause of action in the present suit. It is a second lease agreement dated 9-12-1962 by which the defendants were given possession of the open land and the lease was created. Both the lease agreements are not registered, and therefore cannot be said to be legal and valid as is rightly observed by the Appellate Court.
12. The Appellate Court observed that; it is seen from the original document (Exh. 86) that the defendants had taken open land on lease and there was one house in the corner which was given for use and occupation along with this open land to the appellants. It is seen from the evidence that the said house was vacated and the possession was delivered to the respondents after there was a talk regarding vacation of the premises. The respondents have also not claimed possession of the said premises in the suit. Under these circumstances, the Appellate Court has came to the conclusion that the provisions of Rent Control Order are not applicable. Moreover, on appreciation of the evidence, the Appellate Court has negatived the contentions of the defendants that they have became the owners by adverse possession.
13. The trial Court also granted decree for arrears of rent and considering this aspect as relevant for passing eviction decree and negatived the contentions of the defendants that they have became the owners by adverse possession. So, there is a concurrent finding recorded by both the courts below on this point and there is no reason for this Court to take a different view of the matter especially when no case has been made out to show that the finding is not based on the evidence.
14. This Court, in the case of M.I. Qureshi v. Khatoonbi (cited supra) observed in paras 11 and 12 as under :
11. Simple reading of the aforesaid provisions of law it would reveal that a suit for eviction of the tenant is not maintainable unless the permission of the Rent Controller is obtained for issuance of quit notice. In the case of Ashwinikumar Govardhandas Gandhi v. Gangadhar Dattatraya Gadgil 1990(Supp.) Bom.C.R. (N.B.)403 : 1990 Mh.L.J. 18, the Division Bench of this Court held that; where the tenant renounces his character as such by setting up title in third person or by claiming title in himself as mentioned in Section 111(g) of the Transfer of Property Act, permission under Clause 13 of the C.P, and Berar Letting of Houses and Rent Control Order is not necessary for giving notice determining the lease as contemplated by Clause (g) of Section 111 of the Transfer of Properly Act. A suit therefore for ejectment of such tenant without obtaining the permission, of the controller is maintainable.
14-A. In the case of Nababkhan Abdullakhan and Anr. v. Jamrubi Abdullakhan 1992(Supp.) Bom.C.R. (N.B.) 610 : 1992 Mh.L.J. 260, this Court held that:
An owner of the house sought eviction of a licensee occupying the premises who did not vacate inspite of revocation of licence. The defendant denied plaintiffs title and claimed ownership in himself. The trial Court upheld the claim of the plaintiff and granted the decree of possession. The appeal came to be dismissed by the District Court. However, in second appeal by the defendant who was bound by the finding that he was a licensee it was contended that in view of the amendments to C.P, and Berar Letting of Houses and Rent Control Order, 1949 on 27th June, 1989 and 26th October, 1989, the plaintiff would not be entitled to claim the decree of eviction. Reliance was placed on Clause 13-A which was inserted by the amendment dated 26th October, 1989. In the circumstance, it was held that under Clause 2(5) of the Rent Control Order as amended tenant means any person by whom or on whose account rent is payable for premises and includes a sub-tenant and person continuing in possession after the term of his tenancy has expired. Category of mere licensees by whom the rent is not payable would not fall within the expression "tenant" and the expression "landlord" which has to be construed in a similar manner would include a person who is receiving or is entitled to receive the rent of a premises, etc. Inasmuch as the defendant was not paying any rent, he was not entitled to claim protection either of Clause 13(1) or Clause 13-A of the Rent Control Order. It was not necessary, therefore, for the plaintiff to obtain permission of Rent Controller as required by Clause 13(1).
15. In view of this legal position, it would be obvious that the defendants are not entitled to claim protection under Clause 13-A of the Rent Control Order and the contentions of the learned Counsel for the defendants that the permission of the Rent Controller was necessary before passing decree for eviction in view of the amended provisions of the Rent Control Order, cannot be accepted in the peculiar facts and circumstances of the present case. In the result, this Court is of the considered opinion that no substantial question of law is involved in this appeal, and the same stands dismissed with no costs.