KAMLA DEVIversusLAXMI DEVI

 A                                  KAMLA DEVI
                                           v.
                                    LAXMI DEVI

                                   MAY 12, 2000

B        [SYED SHAH MOHAMMED QUADRI AND S.N. PHUKAN, JJ.]


           Rent Control and Eviction:

           Delhi Rent Control Act, 1958; Sections 2(e),(i),(I) and 50.
c        Civil Court-Jurisdiction of-Landlord let out one big room to tenant-
   An open plot of vacant land belonging to the landlord was located adjacent
   to the said big room-Tenant constructed a latrine unauthorised?' on that
  plot of /and-landlord filed suit for injunction directing the tenant to demolish
  the structure-Subsequently, the parties entered into a compromise under
D which the plot was let out to the tenant on a monthly rent-Later on landlord
  terminated the said tenancy and filed suit for recovery of possession of the
  plot of /and-High Court dismissed the suit holding that the plot was covered
  by the term 'premises' defined under S.2(i) and, therefore, the suit was barred
  under S.50-Correctness of-Held: Open plot of land without any structure
E is. not covered by the term 'premises '-It is immaterial even if the tenant
  raises a structure on the open plot of land before or after creation of tenancy
  since the structure does not belong to the landlord-Therefore, S.50 which
  bars jurisdiction of civil court is not applicable to such cases-hence, High
  Court erred in dismissing the landlord's suit as not maintainable-Landlord's
  suit decreed
F
           Unauthorised construction-Tenant built a structure on the adjacent
     vacant land to his rented premises-Adjacent land also belonged to the
     landlord-Held: Such structure cannot be treated as part of the building
     already in occupation of the tenant.

G         Words and Phrase:

          "Premises"-Meaning of-In the context of S.2(i) of the Delhi Rent
     Control Act, 1958.

          The appellant-landlady let out the suit property (consisting of one big
H                                       330
                       KAMLA DEVI v. LAXMI DEVI                            331
room) to the respondent - tenant. The respondent had unauthorisedly               A
constructed a latrine on a vacant plot of land belonging to the appellant
measuring 9'x7' adjacent to the suit property. The appellant ftled a suit for
injunction directing the respondent to demolish the said construction. But
the parties settled their dispute and filed a compromise under which the
respondent became the tenant of the suit plot on a monthly rent and the suit      B
was dismissed as withdrawn.

      Subsequently, the appellant terminated the tenancy created under the
said compromise and filed a suit for recovery of possession of the suit plot by
evicting the respondent. The suit was contested by the respondent on the sole
ground that the suit plot was 'premises' within the meaning of the Section        C
2(i) of the Delhi Rent Control Act, 1958 and, therefJlre, the suit was barred
under Section SO of the Act. The trial court dismissed the suit and the
appellant's first and second appeals were also dismissed. Hence this appeal.

      On behalf of the appellant it was contended that as per the terms of the
compromise what was let out to the respondent was only a plot of land             D
measuring 9'x7'; that the appellant had no right, title or interest in the
structure built on the land and she could not have let out the same and,
therefore, Section SO of the Act was pot applicable.

      Allowing the appeal, this Court
                                                                                  E
      HELD: 1.1. A combined reading of the definitions of "landlord",
"tenant" and "premises" contained in Sections 2(e), (i) and (I) respectively
of the Delhi Rent Control Act, 1958 shows that the term 'premises' implies
the subject-matter of tenancy in respect of which there is jural relationship
of landlord and tenant and in respect of which the quantum of rent is agreed
to between them. [335-C)                                                          F
      1.2. When, in any case, the question arises whether an open plot of land
or a plot of land with structures thereon, was let ont, the Court has to
determine the same on the facts of that case. In deciding this question, it will
be useful to bear in mind that if the plot with structure was let out it will fall G
within the meaning of the term 'premises'; but if open plot of land without
any structure was let out then it does not fall within the meaning of the term
'premises.' It is immaterial whether the tenant raised structures before the
creation of the tenancy or after he was let in as a tenant. In either case, the
tenant alone will have the proprietary rights in the structure and not the
landlord. (335-D-E)                                                                H
    332                       SUPREME COURT REPORTS (2000] SUPP. I S.C.R.

A          2.1. In the instant case, the respondent raised the structure (latrine)
    unauthorisedly which was the subject-matter of the earlier suit wherein the
    appellant prayed mandatory injunction for demolition of the same. The
    structure (latrine) admittedly does not belong to the appellant. It belongs to
    the respondent who can at any time demolish the same and take away the
B   material. While giving the suit plot on rent under the compromise the
    appellant agreed that instead of demolition of the structure it might be used
    by the respondent. But the appellant did not acquire any right, in the structure
    (latrine) constructed unauthorisedly by the respondent. [33S-F-G)

            Krishnapasuba Rao v. Dattatraya Krishnaji Karani, (1966) SCJ 1 601
C aqd A.R. Salay Mohamad Sait v. Jaffer Mohammed Sait 's Memorial Dispensary
    Charity, (1969) RCR (SC) 322, followed.

          3. It is not possible to accept the contention of the respondent that the
    latrine on the suit plot will have to be treated as part of the building, which
    was already in occupation of the respondent. (337-C)
D
          4. It follows that the suit plot does not fall within the meaning of the
    term 'premises' under the Act and, therefore, Section 50 of the Act ousting the
    jurisdiction of the civil court will not be applicable to this case. The suit was,
    therefore, maintainable. lo view of the fact that the defence was found to be
    untenable, the suit of the appellant (plaintiff) deserves to be decreed. (337-E)
E           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1822 of
    1998.

          From the Judgment and Order dated 28.11.97 of the Delhi High Court
    in R.S.A. No. 105of1994.
F        Jaspal Singh, Pawan Kumar Bahl, Barish Kumar and M.M. Kashyap for
    the Appellant.

            Ms. Meenakshi Arora (A.C.) for the Respondent.

G           The Judgment of the Court was delivered by

          SYED SHAH MOHAMMED QUADRI, J. This appeal raises a short
    question as to whether the suit plot is 'premises' within the meaning of
    Section 2(i) of Delhi Rent Control Act, 1958.

H         In this appeal the appellant has challenged the correctness of the
                KAMLA DEVI v. LAXMI DEVI [QUADRI, J.]                       333
judgment of the Delhi High Court dismissing her second appeal (R.S.A. No.           A
 105 of 1994) on November 28, 1997. The appellant is the landlady and the
respondent is the tenant.

       The facts giving rise to this appeal are not in controversy. The appellant
is the owner of property bearing No. 417, Masjid Moth, New Delhi, (consisting       B
of one big room) which was let out by her to the respondent. There is a
vacant land of appellant adjacent to the said property of which an open plot
of land measuring 9'x 7' (hereinafter referred to 'the suit plot') is the subject
matter of the suit out of which this appeal arises. The respondent had
unauthorisedly constructed a latrine on the suit plot which gave cause to the
appellant to file Suit No. 79 of 1978 in the Court of Senior Sub-Judge, 1st         C
Class, Delhi, praying for a mandatory injunction directing the respondent to
demolish the construction made by her on the suit plot. But the parties settled
their dispute and filed a compromise under which the respondent became the
tenant of the suit plot on a monthly rent of Rs. 5 and the suit was dismissed
as withdrawn on March 27, 1978. •
                                                                                    D
      By a notice dated December 19, 1983 the appellant terminated the
tenancy, created under the said compromise and filed Suit No. 69 I of 1984 in
the Court of Senior Sub-Judge, Delhi, for recovery of possession of the suit
plot by evicting the respondent. The suit was contested by the respondent
on the sole ground that the suit plot was 'premises' within the meaning of          E
Section 2(i) of the Delhi Rent Control Act, 1958 (for short, 'the Delhi Act')
and, therefore, the suit was barred under Section 50 of the said Act. On
February 12, 1987 the trial court, after considering all the evidence placed
before it, held that the suit plot was 'premises' as defined in Section 2(i) of
the Delhi Act, therefore, the suit was not maintainable and thus dismissed the
suit. The appellant unsuccessfully appealed against the said judgment in            F
R.C.A. No. 26 of 1987 in the Court of Senior Civil Judge, Delhi, which was
dismissed on September 14, 1994. The appellant's second appeal was also
dismissed by the High Court by the impugned judgment and hence she is in
appeal before this Court by special leave.

                                                                                    G
      Mr. Jaspal Singh, learned senior counsel appearing for the appellant,
contended that the terms of the compromise would clearly show that what
was let out to the respondent was only a plot of iand measuring 9' x 7'. Even
though on that date there was a latrine on the suit plot, yet the subject matter
of the tenancy was only plot of land, not structure thereon which admittedly
belonged to the respondent. As the appellant had no right, title or interest        H
    334                        SUPREME COURT REPORTS [2000] SUPP. I S.C.R.

A in the structure, she could not have let out the same but the courts below
    dismissed the suit of the appellant by wrongly applying Section 50 of the Act.

           The respondent, though served, was not represented. We, therefore,
    requested Ms. Meenakshi Arora, Advocate to assist the court as amicus
    curiae, who readily agreed to do so. We record our appreciation for the
B   assistance rendered by her in presenting the case of the respondent.

          Ms. Arora argued that on the date of creating the tenancy admittedly
    there was latrine on the suit plot, so the courts below were right in construing
    the compromise and holding that the suit plot with structure was let out,
C   which would fall within the meaning of'premises' in Section 2(i) of the Delhi
    Act. In the alternative, she argued that the suit plot being land appurtenant
    to House No. 417, which was occupied by the respondent as 'tenant', the suit
    was not maintainable.

           Section 50 of the Delhi Act says that except where the Act so provides,
D   no civil court shall entertain any suit or proceeding in so far as it relates, inter
    alia, to eviction of any tenant from any premises. It is thus clear that if the
    suit for eviction of tenant relates to any premises as defined in the Delhi Act,
    the civil court cannot entertain the same. Therefore, it becomes necessary to
    detennine whether the suit plot is 'premises' within the meaning of the Delhi
E   Act.

           To determine this aspect, it will be useful to refer to the definition of
    the terms the 'landlord', the 'tenant' and the 'premises' as defined in Section
    2(e), (1) and (i) respectively of the Delhi Act. Insofar as they are relevant for
    our purposes, they read as under:
F
            "2. Definition - In this Act, unless the context otherwise requires. -

            (e) "landlord" means a person who, for the time being is receiving,
            or is entitled to receive, the rent of any premises, whether on his own
            account or on account of or on behalf of, or for the benefit of, any
G           other person or as a trustee, guardian or receiver for any other person
            or who would so receive the rent or be entitled to receive the rent,
            if the premises were let to a tenant;

            (i) "premises" means any building or part of a building which is, or
            is intended to be, let separately for use as a residence or for commercial
H           use or for a!ly other purpose, and includes,-
                  KAMLA DEVI v. LAXMI DEVI [QUADRI, J.]                         335
         (i)    The garden, grounds and outhouses, if any, appertaining to             A
                such building or part of the building;
         (it)   any furniture supplied by the landlord for use in such building
                or part of the building;
                but does not include a room in a hotel or· lodging house;
         (I) "tenant" means any person by whom or on whose account or
                                                                                       B
         behalf the rent of any premises is, or, but for a special contract, would
         be, payable, and includes:

         ***                         ***                      ***"
     A combined reading of the definitions of the terms, quoted above,                 C
shows that the term 'premises' itnplies the subject-matter of tenancy in respect
of which there is jural relationship of landlord and tenant and in respect of
which the quantum of rent is agreed to between them.

        When, in any case, the question arises whether an open plot of land
  or a plot of land with structures thereon, was let out, the Court has to             D
. determine the same on the facts of that case. In deciding this question, it will
  be useful to bear in mind that if the plot with structure was let out it will fall
 within the meaning of the term 'premises' but if open plot without any
 structure was let out then it does not fall within the meaning of the term
  'premises'. It is immaterial whether the tenant raised structures before the         E
 creation of the tenancy or after he was let in as a tenant. In either case, the
 tenant alone will have the proprietary rights in the structure and not the
 landlord.

      In the instant case, the structure (latrine) was raised by the respondent
unauthorisedly which was the subject-matter of the earlier suit wherein                F
mandatory injunction for demolition of the same was prayed by the appellant.
The structure (latrine) admittedly does not belong to the appellant. It belongs
to the respondent who can at any time demolish the same and take away the
material. While giving the suit plot on rent under the compromise the appellant
agreed that instead of demolition it might be used by the respondent. But the
appellant did not acquire any right in the structure (latrine) constructed             G
unauthorised by the respondent.

      Since the basis of the tenancy between the parties is the compromise
entered into between them in the earlier suit which was withdrawn on March
27, 1978, it is necessary to refer to .the following relevant terms of the
compromise:                                                                            H
    336                        SUPREME COURT REPORTS [2000] SUPP. I S.C.R.

A            "(i) that the defendant has raised the latrine on the open land of 9'x
                  7' in front of the door of house No.417, Masjid Moth, New Delhi.

             (ii)   that the defendant has agreed to pay Rs.5/- per month to the
                    plaintiff being rent of open land measuring 9'x 7' in front of the
                    door of the house No.417, Masjid Moth, New Delhi."
B   From a perusal of the clauses (i) and (ii), it is clear that though there is a
    reference to existence of a latrine on the suit plot, yet what was let out was
    open plot of land measuring 9' x 7' for which the agreed rent was Rs.5 per
    month.

C         From the above discussion, it is evident that only the open plot of land
    measuring 9' x 7' was let out which does not fall within the meaning of the
    term 'premises' as defined in Section 2(l)(i) of the Delhi Act.

           In Krishnapasuba Rao, Kundapur, (dead) after him his Lr. & Anr. v.
    Dattatraya Krishnaji Karani, (1966) SCJ I 601, a three Judge Bench of this
D   Court considered the question: whether the premises are land or whether they
    are building or garden, grounds, etc. appurtenant to the building. In that case,
    as in the present case, the land was given on rent to the tenant who constructed
    building at his own costs before the execution of the rent note. The question
    arose under Section 13(1) of the Bombay Rents, Hotel and Lodging House
E   Rates Control Act (for short 'the Bombay Act'); if the demised land was
    'premises' within the meaning of the Bombay Act, the landlord was entitled
    to recover its possession for construction of building on satisfying the court
    that he required it reasonably and bona fide for construction of a building.
    On consideration of the definition of the 'premises' which is similar to the
    definition of the term in the Delhi Act, it was held that it referred to the subject
F   matter ofletting for which rent was payable and in respect of which there was
    a relationship of landlord and tenant and, therefore, the land alone was the
    subject matter of letting and 'premises' within the meaning of Section !3(l)(i)
    of the Bombay Act.

G          That decision was followed by this Court in A.R. Salay Mohamed Sail,
    etc. v. Jaffer Mohamed Sail's Memorial Dispensary Charity and Ors., (1969)
    RCR SC 322. There, the lessee constructed building and a shed on the land
    leased out to him. The question was: whether the land leased out came within
    the meaning of 'building' in Section 2, clause (2) of the Madras Buildings
    (Lease and Rent Control) Act, 1960, (for short, 'the Madras Act')? The
H   defendant contestecl the suit, inter alia, on the ground that the suit was barred
                KAMLA DEVI v. LAXMI DEVI [QUADRI, J.]                      337
under the provisions of the Madras Act as the civil court had no jurisdiction     A
to entertain the suit for eviction in respect of building covered by the Madras
Act. The definition of the term 'building' in Section 2, clause (2) of the
Madras Act was in haec verba with the definition in the Delhi Act. It was
held that in determining the question whether the lease was of a vacant land
or a building within the meaning of the Madras Act the court must take into       B
account both form and substance of the transaction; the landlord was aware
that there were certain stmctures on land but what was let out was not the
structures but the land. Consequently, the appeal of the tenant was dismissed
on the ground that the Madras Act was not applicable and the suit was
maintainable in the civil court.

       What is, however, next contendeq for the respondent is that since the
                                                                                  c
respondent had raised the latrine on the suit plot, it will have to be treated
as part of the building which was already in occupation of the respondent.
We are afraid we cannot accept this submission of the learned amicus curiae.
The building which was let out to the respondent is a different premises under
a different agreement. The suit plot cannot be treated as part of that building   D
as a separate tenancy was created in respect of the suit plot under the
compromise.

       From the above discussion, it follows that the suit plot does not fall
within the meaning of the term 'premises' under the Delhi Act and, therefore,
Section 50 of the Act ousting the jurisdiction of the civil court will not be     E
applicable to this case. The suit was, therefore. maintainable. In view of the
fact that the defence was found to be untenable, the suit of the appellant
(plaintiff) deserves to be decreed. Accordingly, the appeal is allowed and the
suit of the appellant is decreed with costs.

V.S.S.                                                                            F
                                                             Appeal allowed.