M.Y. Eqbal, J.
1. This civil revision application by the defendants-petitioners is directed against the order dated 1-12-98 passed by Sub-Judge, 1st Court, Bokaro at Chas in Title (Eviction) Suit No. 2/97 whereby he has allowed the application filed by the plaintiffs/ opposite parties under Section 15 of the Bihar Building (Lease, Rent and Eviction) Control Act (hereinafter referred to as the B.B.C. Act) and directed the petitioners to deposit the arrears of rent from December 1995 till the date of passing of the order at the rate of Rs. 250/- per month for each of the plaintiffs.
2. Plaintiffs-opposite parties instituted the aforesaid suit claiming a relief of eviction of the defendants-petitioners from the tenanted premises as described in schedule of the plaint and also for a decree for realisation of arrears of rent.
3. Plaintiffs' case, inter alia, is that plaintiff Nos, 1 and 2 are the own brothers and plaintiff Nos. 3 and 4 are own brothers. They jointly purchased 22 decimals of land of different plots and were put in possession of the same. The plaintiffs also purchased 2 decimals of land through different sale-deeds. Their further case is that they jointly divided among themselves the entire land together with passage whereby plaintiff No. 1 was allotted front portion of the land facing P.W.D. road and plaintiff No. 2 was allotted rear portion of the premises. Similarly, plaintiff Nos. 3 and 4 were allotted rear portions. Thereafter, plaintiff Nos. 1 and 2 and plaintiff Nos. 3 and 4 jointly got their building plan sanctioned for the construction of a commercial-cum-residential complex. Plaintiffs' further case is that defendant No. 2 and one Abdul Sattar Ansari have been let out 130' of land in length from north to south and 62' in width from east to west from. Plaintiff Nos. 1 and 3 and further two rooms on payment of rent of Rs. 500/- per month for the vacant portion of land, and Rs. 111/- per month for two rooms constructed of bricks having Asbestos sheets by agreement dated 3-2-86. The details of the land together with rooms let out to the defendants has been described in the Schedule-B of the plaint. It is alleged that the defendants defaulted in payment of rent.
4. The defendants contested the suit by filing written statement denying and disputing the allegations made in the plaint. It is alleged that the suit is bad for mis-joinder of parties inasmuch as the tenancy was created by four plaintiffs separately and the plaintiffs are separately receiving rent for their respective portions and a composite suit for eviction by all the plaintiffs will not lie. It is further alleged that the defendants took vacant land from the plaintiffs for running a timber business and, as such, suit will not lie under the B.B.C. Act. The defendants also denied and disputed the alleged partition between the plaintiffs. It is further alleged that the agreement of lease is an illegal document hit by the provisions of Registration Act.
5. During the pendency of the suit, an application under Section 15 of the B.B.C. Act was filed by the plaintiffs for a direction to the defendants to deposit arrears of rent as also the current and future rent in the manner as provided under the said B.B.C. Act. The said application was opposed by the defendants/petitioners by filing a rejoinder taking the plea that the provision of the Act is not applicable in the instant case inasmuch as vacant land and rooms were let out separately and there is separate tenancy in respect of these two premises.
6. The Court below, after hearing the parties, allowed the application by passing the impugned order and directing the defendants to deposit the arrears of rent, current and future rent. Hence this application.
7. Mr. N.K. Prasad, learned Sr. Counsel appearing on behalf of the petitioners assailed the impugned order as being illegal and wholly without jurisdiction. Learned Counsel submitted that from perusal of paragraphs 7 and 9 of the plaint, it is evident that vacant land and two rooms were let out and separate rent was fixed for the two premises and, therefore, so far as vacant land is concerned, no order could have been passed under the B.B.C. Act. Learned Counsel further submitted that there is a specific pleading or the plea taken in the written statement that vacant land was let out where the defendants have been carrying on timber business and it is not a building within the meaning of the B.B.C. Act so as to attract the provisions of Section 15 of the B.B.C. Act. Learned Counsel relied upon the decision in the case of Bansi Sao v. Madho Das and Anr. reported in 1962 BLJR 177.
8. On the other hand, Mr. Debi Prasad, learned Counsel appearing on behalf of the plaintiffs/opposite parties submitted that the plaintiffs have very categorically pleaded in para 9 of the plaint that Schedule-B property was let out to the defendants which consists of vacant land and building and the said fact has not been denied by the defendants. In that view of the matter, according to the learned Counsel, the suit will be governed by the Rent Control Act and the Court below rightly directed the defendants to deposit the rent.
9. After hearing the learned Counsel for the parties, the only question falls for consideration is whether there has been two separate tenancies ; on in respect of vacant land and another in respect of building or whether there had been a composite lease of the vacant land and rooms. In order to appreciate the case of the parties, it would be desirable to look into the relevant paras of the pleadings. Para 9 of the plaint is quoted hereinbelow:
That, the defendant No. 2 and Abdul Sattar Ansari have been let out 130' ft. (one hundred thirty feet) of land in length from North to South and 62' (sixty-two feet) in width from west to east by plaintiff No. 1 and 3 with consent of defendant Nos. 1 and 2 after leaving 40' (forty feet) in length from the PWD road in the eastern side with two rooms on payment of monthly rent of Rs. 5,00/- per month for the vacant portion and Rs. 111/- per month for two rooms constructed of bricks having asbestos sheet by agreement dt. 3-2-86 in composite manner in the one agreement morefully described in Schedule-B premises out of Schedule-A premises fully delineated in annexed sketch-map. The agreement dated 3-2-86 along with annexed sketch map is enclosed herewith and marked Annexure-1 which may be treated as part of the plaint. Thus, premises being vacant portion and constructed rooms mentioned in Schedule-B of the plaint are integral part of each other and is situated over the same land belonging to the plaintiffs. Rent for Schedule-B premises have been agreed to be paid together by the defendants which are to be realised by plaintiff Nos. 1 and 2 together. Schedule-B premises have been utilised for timber business by defendants. Tenancy commenced from February 1986 and monthly rent was payable on 5th day of every sue ceeding English calendar month. Defendant No. 2 and Abdul Sattar Ansari paid Rs. 10,000/- (rupees ten thousand) advance adjustable against monthly rent as per agreement dated 3-2-86 and all advance of Rs, 10,000/-(rupees ten thousand) stood adjusted against the monthly rents.
10. In the written statement, the defendants have controverted this aforesaid paragraph of the plaint in para-17 of the written statement which reads as under:
17. That, the statements made in paras 9 and 10 of the plaint are not fully correct and are denied. These defendants deny that the defendant No. 2 and Abdul Sattar Ansari were let out 130' NS and 62' EW by plaintiff Nos. 1 and 2 with consent of defendant No. 1 and 2 after leaving 40' from PWD road on eastern side with two rooms on payment of monthly rent of Rs. 500/- for vacant portion and Rs. 111/ - p.m. for two rooms of asbestos roof by agreement dt. 3-2-86 described in Schedule-B. The said agreement of lease if at all tiny, is an illegal document hit by Registration Act and Section 4 of the Bihar Building (Lease Rent and Eviction) Control Act. The said agreement, if any, was never given effect to. The true facts are stated hereinafter:
(a) That, the plot No. 3725 appertaining to khata No. 199 of Mouja chas is a big plot and the said plot along with other lands belonged to and were recorded in the name of Joychand Bouri and others in the last cadastral survey Settlement Record of Rights.
(b) That, the descendants of said Joychand Bouri and others viz. Ghasiram Bouri and others who inherited the said plot and were in possession sold portion of the said plot No. 3724 to the plaintiffs as shown below and shown in the plan enclosed and put them in possession.
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Saledeed No. Sold by Sold to Land sold out of
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1.3940 Ghasiram Ram Chandra Plot No. 3724
22-6-79 Bouri and Ors. PRASAD-P-3 16 deems. 62'NSx31'EW.
2.3943 Ghasiram Md. Abdul 11/5 Dec.
22-5-79 Bouri and Ors. Salam P-2 16 68' NSx31' EW.
3.3939 -Do- Md. Abdul 11
22-5-79 Mannan-P-3 5-16 Dec. 68'NS x 31'
EW.
4.3938 dt. -Do.- Rajeshwar 13
22-5-79 Prasad P-4 1-Dec. 68'x 31'EW.
16
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(c) That, the said purchaser after coming in possession of the portion of the said plot No. 3724 leased out their respective purchased portion to the defendant No. 2 and another for the purpose of carrying on timber merchant business on the said land on or about the year, 1986.
(d) That, later by arrangement between the defendants and another who took the said lease from the plaintiff No. 1 to 4, the defendant No. 1 and 2 were recognised as tenants in the said plot No. 3724 by the said plaintiff No. 1 to 4 on payment of monthly rent at the rate of Rs. 250/- each in respect of portions of plot No. 3724 as shown in the plan enclosed with the plaint being Annexure-1.
(e) That, the defendants thereafter used to run timber business in the name and style of M / s. Bhagwati Timber of which the defendant No. 1 was registered as proprietor and rent used to be paid to the plaintiff No. 1 to 4 each @ Rs. 250/- in the name of M/s Bhagwati Timber.
(f) That, the defendants carried on Timber business in the said premises (vacant land) by storing timber logs, etc. and also by construction of temporary sheds, etc. and also by raising boundary around the said leased land by wooden plants, etc.
(f) That, on the south western side of the said plot there is a shop premises constructed by Abdul Salam, plaintiff No. 2, measuring 31' x 42' and the balance land i.e. 26' x 31' was leased out by said plaintiff No. 2 to the defendants.
(h) That, similarly the plaintiff No. 1 initially leased the entire purchased land out of said plot No. 3724 to the defendants but on being approached, the defendants left 22' X 33' of land on the south western side of his purchased portion as shown in plan enclosed to the said plaintiff No. 1. The said plaintiff No. 1 tried to disturb the business of the defendants by forcibly entering into the said leased out land and dig foundation set, and as such, the said arrangement of leaving a portion on the south western side was made.
(i) That, the defendants submit that to the south of the said plot lies the main road and the only areas of the leased premises is through the land leased out by the plaintiff No. 1. There exists a 10' wide road on the eastern side of the said leased land and, as such, the trucks can enter into the leased premises through 9' wide land of plaintiff No. 1 and 10' wide road as appears from the plan Annexure-1.
(j) That, as such, by arrangement arrived at by the defendants and the plaintiff No. 1 the portion of the land shown in colour blue and by letter C in Annexure-1 has been in occupation of the defendants being leased out by the plaintiff No. 1 for which rent @ Rs. 250/- is paid to the plaintiff No. 1. The said portion of the land leased out by the plaintiff No. 1 is shown in Annexure-1.
(k) That, no rent receipt is being issued by any of the plaintiffs to the defendants since beginning i.e. from 1986.
(l) That, since first week of December 1995 the plaintiff No. 1 in collusion with plaintiff Nos. 2 to 4 started creating trouble in the peaceful enjoyment of the leased out land for stopping the agress to the leased out premises through the portion of 9' x 68' f5. as shown in Annexure-1. The plaintiff No. 1 has managed the local police and the executive side and has most illegally and with a mala fide motive started making construction over the leased out land so that the defendants may not run the business and their only entrance is stopped.
(m) That, the plaintiff No. 1 with a mala fide motive got a proceeding under Section 144, Cr. P.C. started being M.P. Case No. 36/96 in the Court of S.D.O., Chas on false allegations and only the defendants have been restrained to enter the land under the proceeding i. e. 10' x 40' land leased out to the defendants by the plaintiff No. 1 The said proceeding is disposed of.
(n) That, since there was serious apprehension of breach of peace from the side of the plaintiff No. 1 for taking forcible possession of the suit land, particularly 10' x 40' of land on the road side the defendant No. 1 filed a petition in the Court of S.D.O., Chas for drawing up of a proceeding under Section 144, Cr. P.C. and a proceeding being M.P. Case No. 51/96 was started on 8-2-96 which has been dropped by an order dt. 12-2-96 since wrong plot No. was mentioned in the notice.
(o) That, the plaintiff No. 1 to 4 in collusion with the each other have refused to accept rent @ Rs. 250/- being rent from the month of December 1995 and, as such, the defendants had to send the monthly rent of December 1995 by Money Order.
(p) That, the defendants thereafter filed a Title suit No. 15/96 in the Court of Munsif, Chas with a petition of temporary injunction against the plaintiffs.
(q) That, the Munsif, Chas passed an order on 4-9-96 on injunction petition and ordered to maintain status quo and the defendants have filed a Misc. Appeal No. 33/96 in the Court of the District Judge, Bokaro which is pending for hearing.
(r) That, the statements made in para 11 of the plaint are not true and correct and are denied. The statements that the tenants of the defendants used to carry the wooden logs and planks, etc. to tenanted premises from P.W.D. road through 10' wide road from eastern side to Schedule-B premises are not correct. The correct facts have been stated in the foregoing paragraphs. The plaintiffs have wrongly described the tenanted premises i.e. the vacant land given by them and has wrongly stated the facts of transportation of wooden logs to the tenanted premises.
11. From perusal of the aforesaid pleadings, prima facie it appears that existence of lease agreement has not been denied rather, its legality and validity has been challenged. Copies of the pleadings together with Annexures have been supplied to me by the Counsel appearing for he parties. Annexure-1 to the plaint is a copy of the lease agreement. Relevant portion of the lease agreement reads as under:
Whereas the lessee had approached the lessor and advanced a sum of Rs. 6,000/- (rupees six thousand only) today and promise to pay Rs. 4.000/- (Rupees four thousand only) on 10th March, 1986 as advance. The total amount of advance comes to Rs. 10,000/- (Rupees ten thousand only) on 10th March, 1986, for the lease of the land and constructed two rooms bearing khata No. 199 plot No. 3724 located on Chas Bazar PWD road to Dhanbad on a monthly rental of Rs. 500 /-(Rupees five hundred only) per month for the vacant portion of land @ Rs. Ill/- (Rupees one hundred eleven only) per month for the two rooms constructed by asbestos & bricks as has been described and bounded hereinafter:
North : Pucca House of Mr. Roy.
South : Self vacant land proposed for construction & PWD Road.
East: 10' private road.
West: personal road & boundary wall of Ansari Market.
12. A bare look of the agreement shows that a composite lease both of land and building was granted by the plaintiffs in favour of the defendants irrespective of the rent of both land and building has been seperately fixed. Relationship of landlord and tenant has not been denied and disputed by the defendants although various other defences have been taken which are not necessary to be discussed here, as the same shall be gone into by the trial Court at the final hearing of the suit.
13. At this stage, while deciding the question whether Section 15 of the B.B.C. Act will apply or not, the Court has only to record a prima facie finding regarding the nature of the property let out by the plaintiffs to the defendants. As noticed above, from perusal of the agreement at least it is evident that vacant land together with rooms were let out to he defendants.
14. The term 'building' has been defined under Section 2(b) of the B.B.C. Act which reads as under:
'Building' means any building, or hut or a part of the building or hut, let. or to be let separately for residential or non-residential purposes, and includes:
(i) the garden, grounds, and outhouse, if any, appurtenant to such building or hut or part of such building or hut; and
(ii) any furniture supplied by the landlord for use in such building or hut or part of a building or hut;
15. As the definition of the term 'building' is very wide and various Courts have given its widest application, it is well settled that if only vacant land or parti land is let out, then such vacant land will not come within the definition of the term 'building'. In the instant case, both land together with rooms have been let out by virtue of a composite lease agreement and, therefore, I am of the definite opinion that in such type of tenancy the provision of Rent Control Act will be applicable.
16. Mr. N.K. Prasad, learned Sr. Counsel appearing for the petitioners vehementally challenged the admissibility of the lease agreement into evidence. I do not want to express any opinion at this stage with regard to the admissibility of the document for want of registration. But, at least it has not been disputed by the defendants that they are in possession of the land together with rooms in the capacity of tenants. The decision relied upon by Mr. Prasad is not at all applicable in the facts and circumstances of the present case. In Bansi Sao's case (supra), the fact was that a parti land was originally let out the subsequently a hut was put up by the plaintiff on the parti land. It was on that fact that this Court held that transaction does not amount to a lease of building.
17. On the contrary, the conclusion arrived at by me finds support from the ratio decided by the Apex Court in the case of Surya Kumar Govindjee v. Krishnammal and Ors. : [1990]2SCR782 . In that case by a lease agreement vacant land together with tyled Kaichabai, door and doorways, etc. were let out by the plaintiffs to the defendants for a fixed period under certain terms and conditions. During the pendency of the eviction proceeding, the provisions of Madras City Tenants Protection Act was extended to the principal limit of the jurisdiction where the tenanted premises was located. Taking advantage of this, the plaintiff claimed the benefit of the said. Act. While deciding the question whether the Rent Control Act would apply, their Lordships have held that there is no difficulty in determining the scope of the lease where building and piece of land are separately let out but in case of composite lease of land and building, a question may arise whether lease is one of the land although there is building or but on it or one of the lease of the building or lease of both regardless of their respective dimensions. If transaction clearly brings out a dominant intention and purpose, there may be no difficulty in drawing a conclusion one way or the other. But where all that is intended is a joint lease of both the land and the building without there being any considerations sufficient to justify spelling out an intention to give primacy to the land or the building, the test of dominant intention or purpose may not be very helpful.
18. In the instant case, as noticed above, there does not appear from the pleadings of the parties that there is existence of seperate terms and conditions with regard to the tenancy of vacant land and the rooms. In absence of that, in my opinion, at least while deciding an application under Section 15 of the said Act, the Court has only to record a prima facie finding whether the land and building were seperately let out or let out by a composite lease. In a case where the vacant land irrespective of dimensions together with building or rooms are let out by a composite lease, the Court may apply the provisions of Section 15 of the BBC Act and pass necessary orders for deposit of arrears of rent.
19. Having regard to the facts and circumstances of the case, I am, therefore, of the opinion that the Court below has not committed any errors of law or committed illegality in exercising its jurisdiction under the Rent Control Act. The impugned order, therefore, needs no interference by this Court. This civil revision application has, therefore, no merit which is, accordingly, dismissed.
20. Before parting with this order, I must observe that any finding, expression or observation made in this order will not be binding on the Court below and the Court below shall not be prejudiced by this order while deciding the suit on merits at the final stage of hearing.