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PETITIONER: JAMNADAS DHARAMDAS

       Vs.

RESPONDENT: DR. J. JOSEPH FERREIRA AND ANR.

DATE OF JUDGMENT07/05/1980

BENCH: KAILASAM, P.S. BENCH: KAILASAM, P.S. GUPTA, A.C. FAZALALI, SYED MURTAZA

CITATION:  1980 AIR 1605            1980 SCR  (3)1015  1980 SCC  (3) 569

ACT:      Bombay Rents,  Hotel and  Lodging House  Rates, Control Act, 1947,  Section 12(3)  (b) and  Section  28,  scope  of- Jurisdiction of  the Court  of Small  Causes,  Bombay  under section 28-Decree  for possession of vacant land would refer only to  taking over  effective possession  of the  land  by decree holder with the superstructure if any.

HEADNOTE:      By a  lease dated  14th December  1948, the  respondent plaintiff gave to the appellant defendant on lease two plots Nos. 12 and 13 situated at Sitaladevi Temple Road, Mahim for a period  of 15  years commencing  from 1st December 1948 at the yearly  rent of  Rs. 10,200/- payable in equal quarterly instalments of  Rs.  2,550/-  in  advance.  The  lease  deed provided that the appellant was at liberty to erect building and structures  on the  two plots  of  land.  The  appellant agreed to  pay and discharge all taxes and outgoings imposed on the  above two  plots as  also on  the  buildings  to  be erected by  the defendant.  On the expiration of the term of the  lease,   the  appellant  agreed  to  deliver  back  the possession of  two plots  to the  respondent  ‘free  of  all buildings, erections  and structures and levelled and put in good  order   and  condition  to  the  satisfaction  of  the respondent’.  Clause   IV  of   the   lease   provided   for determination and  forfeiture of  the lease  in the event of the rents having been allowed to be in arrears for more than 30 days  or upon  breach of  conditions of  the  lease.  The forfeiture clause  also provided  that upon  forfeiture  the respondent would  be entitled  to re-enter upon not only the two plots of land but also the structure standing thereon.      The appellant  constructed on  plot  No.  12  a  three- storied building  consisting of  about 72  flats, shops with carpet area  of 13,000  square feet  and  the  cost  of  the building  with   superstructures  in   1949  was  about  Rs. 6,00,000/-.  Since  the  appellant  defaulted  not  only  in payment of  rent but  also in  payment of dues in respect of lands and buildings which he erected, the respondent filed a suit  in   1951  for   ejectment.  The  appellant  filed  an application for  the  fixation  of  standard  rent  and  the standard  rent  was  fixed  at  Rs.  435/-  per  month  from

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September 1, 1950. A compromise was entered into between the parties in the suit on 5th March, 1954, by which they agreed on a  rent of  Rs. 435/-  per month  from September  1950 to February 1954.  An appeal  against the  fixation of standard rent of  Rs. 435/-  per month  was disposed of on 28th June, 1955 whereby  standard rent  was refixed  at Rs.  620/- p.m. from 1st September 1950.      The appellant  again defaulted  in payment  of rent and taxes. The  arrears of  rent amounted  to Rs.  11,472.30 and taxes to the extent of Rs. 1,12,053.60 for the period ending 30th September  1960. The  respondent by a notice determined and forfeited  the lease  and called  upon the  appellant to deliver  possession   of  the   lands  alongwith  structures thereupon. The notice also specified that the notice was not only a  notice of  forfeiture, but also notice under section 12 of  the Bombay  Rents,  Hotel  and  Lodging  House  Rates Control Act, 1947. On 1st 1016 December 1961, as the appellant failed to pay the arrears of rent and  the taxes,  the  respondent  filed  the  suit  for ejectment and  prayed for a decree for ejectment against the appellant in respect of two plots of land Nos. 12 and 13 and also the  buildings and  structures  standing  thereon,  and claimed arrears  of rent  of Rs. 11,472.50 and mesne profits at the  rate of  Rs.620/- p.m. The appellant in order to get the benefit  of section  12(3)(b) of  the Rent  Control Act, 1947, applied  for time  for making  deposit of  arrears  of rent. The  appellant could  not make  the payment within the extended time  allowed, but after the issues were framed and the suit was taken up for trial, he deposited the arrears of rent  and  cost  in  the  Court  after  the  Court  made  an endorsement "accept  without  prejudice".  Subsequently,  on 11th November,  1964 the  Trial Court  passed a  decree  for ejectment in respect of plots and the buildings in favour of the respondent.  A decree  was granted  regarding arrears of rent and for mesno profits.      Both the appellant and the respondent preferred appeals and the  Bench of two Judges of the Court of Small Causes by a common  judgment disposed of both the appeals on 4th April 1965. The  Appellate Court  held that it had no jurisdiction to give  a decree  for  ejectment  in  respect  of  the  two buildings constructed  on plot  No. 12  by the appellant. It held that  clause IV of the lease which permitted forfeiture was in  the nature of penalty and the appellant was entitled to be  relieved from  the liability to deliver possession of the buildings  constructed by  him upon  forfeiture  by  the respondent. It also found that the appellant was entitled to be relieved  from the  penalty of  forfeiture of  the  lease under section  114 and 114A of the Transfer of Property Act. It rejected  the plea  of the  appellant that  he was always ready and  willing to  pay arrears  of rents  and found that because of  repeated defaults the appellant was not entitled for relief  from ejectment  under section  12(3)(b)  of  the Bombay Rent Act.      The respondent  filed a  revision petition  against the order of  the appellate Court declining to direct possession of the  two buildings  and  the  appellant-tenant  filed  an appeal against  the order  of appellate  Court directing his ejectment from  the two  plots of  lands Nos. 12 and 13. The High Court  disposed of  both the  revision petition and the cross appeal  by a  common judgment  whereby it  allowed the revision petition  of the  respondent/landlord and dismissed the appeal  of the  appellant/tenant and decreed the suit of the respondent  directing the  appellant to deliver peaceful possession of  the land  demised to  him and  also buildings

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which have  been constructed by the appellant on the demised lands. It  also confirmed  the decree  regarding arrears  of rents and mesne profits. Hence the appeal by certificate.      Dismissing the appeal, the Court. ^      HELD: 1.  Section 28  of  the  Bombay  Rent  Act,  1947 confers jurisdiction  on the Court of Small Cause. Bombay to entertain try  any suit  for proceedings  between a landlord and tenant  relating to  recovery of  rents or possession of any premises  to which  any of  the provisions  of that part applied. The  Jurisdiction thus  conferred enables the Court to try any Suit between the landlord and the tenant relating to recovery of possession of the premises. [1022 A-B]      Importers and  Manufacturers Ltd.  v. Pheroze  Framroze Taraporewala and  Ors. [1953]  3 SCR  266; Babulal Bhura Mal and Anr.  v. Nandram  Shivram  and  Ors.,  [1959]  SCR  367; followed. 1017      Raizada Tapen  Das and Anr. v. M/s Gorakhram Gokalchand [1964] 3  SCR 214;  Sushila Kashinath  Dhonde  and  Ors.  v. Harilal Govinji Bhogani and Ors., [1970] 2 SCR 950 explained and distinguished.      2. The  conditions specified in section 12(3)(b) of the Bombay Rent  Act, 1947  will have to be strictly observed by the tenant  if he  wants to  avail himself  of the  benefits provided  under  the  section.  In  the  instant  case,  the persistent  default   of  the  appellant-tenant  on  various occasions and  his clear  statement that  he was  not  in  a position to  pay the  arrears would exclude any relief under section 12(3) (b) of the Act. The respondent-plaintiff would be entitled  to a  decree for  possession of the plots under the provisions  of the  Bombay Rent  Act and  in effect  the decree for  possession of  the land would mean that the land should be  delivered to him without the structures. [1023 D- G, 1025 D-E]      Ganpat Lodha  v. Sachikant Vishnu Shivale. [1978] 3 SCR 198; applied.      3. To  contend that  as  the  respondent-plaintiff  has sought two reliefs one under the Bombay Rent Act and another under the  contract, the  entire plaint  must be rejected is wrong. In  asking for the relief for possession of the land. the  respondent-plaintiff  is  entitled  to  incidental  and consequential  reliefs   such  as   for  effectively  taking possession of  the plot without the structure, that is he is entitled to  ask for  the demolition  of the superstructure. The prayer  in the  plaint asking for possession of the land including the  structures would not take the suit out of the competence of the Small Causes Court. [1025 E. F-G]      Ramachandra  Raghunath  Shirgaonkar  v.  Vishnu  Balaji Hindalekar. AIR  1920 Bom.  87; Khimjee Thakorsee v. Pioneer Fibre Co.  Ltd., AIR  1941 Bom.  337 and K Arumugham Naicker and Anr.  v. Tiruvalluva  Nainar Temple  by its Trustee. AIR 1954 Mad. 985; approved.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 531 of 1979.      Appeal by Certificate from the Judgment and Order dated the 23-10-1969  of the  Bombay High Court in S.C.A. No. 1596 of 1965.      D. V.  Patel, N. N. Keshwani and R. N. Keshwani for the Appellant.      J. Sorabjee,  R. Daruwala,  P. G.  Gokhale  and  J.  R.

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Gagarat for the Respondent.      The Judgment of the Court was delivered by      KAILASAM, J.  This appeal is by the defendant-tenant by certificate granted  by the  High  Court  of  Judicature  at Bombay against  its judgment  dated 21-1-69 is Special Civil Application No.  1596 of  1965 granting  a decree  directing that  the   defendant  shall  vacate  and  deliver  peaceful possession not  only of  the land  demised to  him under the lease in the suit but also of the three buildings which have been constructed on the demised land.      By a lease deed dated 14th December, 1948 the plaintiff gave to  the defendant  on lease  two plots  Nos. 12  and 13 situated at Sitaladevi 1018 Temple Road,  Mahim for a period of 15 years commencing from 1st December,  1948 at  the  yearly  rent  of  Rs.  10,200/- payable in  equal quarterly  instalments of  Rs. 2,550/-  in advance. The  lease deed  provided that the defendant was at liberty to erect building and structures on the two plots of land. The  defendant agreed  to pay  and discharge all taxes and outgoings  imposed on the above two plots as also on the buildings to  be created by the defendant. On the expiration of the  term of  15 years or sooner termination of the lease the defendant  agreed to  deliver back the possession of the two plots to the plaintiff’ free of all buildings, erections and structures  and levelled  and  put  in  good  order  and condition to  the satisfaction  of the plaintiff’. Clause IV of the  lease provided  for determination  and forfeiture of the lease  in the  event of the rents having been allowed to be in  arrears for  more than  30 days  or  upon  breach  of conditions of the lease. The forfeiture clause also provided that upon  forfeiture the plaintiff would be entitled to re- enter upon  not only  the two  plots of  land but  also  the structures standing thereon.      The defendant defaulted not only in payment of rent but also in  payment of  taxes  due  in  respect  of  lands  and buildings which  he erected.  The plaintiff  filed a suit in 1951 for  ejectment. The  defendant filed an application for the fixation  of standard  rent and  the standard  rent  was fixed at  Rs. 435/-  per month  from September  1,  1950.  A compromise was  entered into between the parties in the suit on 5th  March, 1954 by which the parties agreed on a rent of Rs. 435/- per month from September, 1950 to February, 1954.      An appeal  against the fixation of standard rent of Rs. 435/- per  mensem was disposed of on 28th June, 1955 whereby standard rent  was fixed  at Rs.  620/- per  month from  1st September, 1950. The defendant again defaulted in payment of rent  and  taxes.  The  arrears  of  rent  amounted  to  Rs. 11,472.30 and taxes to the extent of Rs. 1,12,053.60 for the period ending  30th September,  1960.  The  plaintiff  by  a notice determined  and forfeited  the lease  and called upon the defendant  to deliver  possession of the lands alongwith structures thereupon.  The notice  also specified  that  the notice was  not only  a notice of forfeiture but also notice under section  12 of  the Bombay  Rents, Hotel  and  Lodging House Rates  Control Act,  1947 (hereinafter  referred to as the Bombay Rent Act). On 1st December, 1961 as the defendant failed to  pay the  arrears  of  rent  and  the  taxes,  the plaintiff filed the present suit and prayed for a decree for ejectment against  the defendant  in respect of two plots of land and also the buildings and structures standing thereon, and claimed  arrears of  rent of  Rs.  11,472.30  and  mesne profits at the rate of Rs. 620/- 1019 per month.  The defendant filed written statement and denied

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the allegations  made in  the plaint. The defendant in order to get the benefit of the provisions of Section 12(3) (b) of the Bombay  Rents Act applied for time for making deposit of arrears of rent. The application was taken on the 20th June, 1962 and further time was granted to enable the defendant to make the  deposits. Time  was extended  on several occasions and finally  on 6th August, 1962, the defendant informed the court that  he was  not in a position to make any deposit at all.      After the  issues were framed and the suit was taken up for trial, the defendant once again applied for relief under S. 12(3)(b)  of the Act and prayed that he may be allowed to deposit the  arrears of  rent  and  cost.  The  deposit  was accepted by  the Court  after making an endorsement, "accept without prejudice".  Subsequently, on  11th November,  1964, the trial  Court passed a decree for ejectment in respect of plots and the buildings in favour of the plaintiff. A decree was granted regarding arrears of rent and for mesne profits.      Both the  plaintiff and the defendant preferred appeals and the  Bench of two Judges of the Court of Small Causes by a common  judgment disposed of both the appeal on 4th April, 1965. The  appellate Court  held that it had no jurisdiction to give  a decree  for  ejectment  in  respect  of  the  two buildings constructed  on Plot  No. 12  by the defendant. It held that  clause IV of the lease which permitted forfeiture was in  the nature of penalty and the defendant was entitled to be  relieved from  the liability to deliver possession of the buildings  constructed by  him upon  forfeiture  by  the plaintiff. It  also found that the defendant was entitled to be relieved  from the  penalty of  forfeiture of  the  lease under Ss.  114 and  114A of the Transfer of Property Act. It rejected the  plea of the defendant that he was always ready and willing  to pay  all arrears  of rents  and  found  that because of  repeated defaults the defendant was not entitled for relief  from ejectment  under S. 12(3) (b) of the Bombay Rent Act.  The plaintiff  filed a  revision petition against the  order  of  the  appellate  Court  declining  to  direct possession of  the two  buildings and  the  defendant/tenant filed an  appeal against  the order  of the  appellate Court directing ejectment  of the  defendant from the two plots of lands mentioned  in the  plaint. The  High Court disposed of both the  revisions by  the plaintiff  and the appeal by the defendant by  a  common  judgment  whereby  it  allowed  the revisions filed by the plaintiff and dismissed the appeal of the  defendant   and  decreed  the  suit  of  the  plaintiff directing the  defendant to  deliver peaceful  possession of the land  demised to  him and also buildings which have been constructed by the defendant on the demised 1020 lands. It  also confirmed  the decree  regarding arrears  of rents and mesne profits.      On behalf  of the  defendant it  was submitted that the Court’s jurisdiction is limited only to adjudicate on leased premises under  the Bombay  Rent Act and therefore it had no jurisdiction to  try the  suit regarding  possession of  the structures put  upon the leased lands. It was pleaded that a relief regarding  the superstructures  will not be one under the provisions of the Bombay Rent Act. It was contended that as the  suit is  for  a  composite  relief  namely  for  the possession of the leased land and for the superstructures it is beyond  the jurisdiction  of the  court and the suit as a whole should  have been  dismissed. It was submitted that in any event as clause IV in the lease deed is in the nature of penalty providing  for the forfeiture of the structure which did not form part of the lease, the decree for possession of

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the structures  is not  maintainable. In  any event  it  was submitted  that   there  could   be  no  forfeiture  of  the structures on  the ground  that the municipal taxes were not paid and  that the  term as  to payment  of arrears of taxes cannot be  considered as  a clause in the lease deed and the defendant should  be  relieved  against  the  penal  clause. Lastly, it was submitted that the Courts below were wrong in not granting  relief under  section 12(3)  (b) of the Bombay Rent Act.      Before considering  the several  contentions raised  by the learned  counsel for  the appellant it will be useful to refer to  the relevant  clauses of  the lease  deed and  the relief prayed  for in  the plaint. The lease deed dated 14th December, 1948  executed by  the plaintiff  in favour of the defendant was a lease of two plots of land, plot Nos. 12 and 13 situated  at Sitladevi Temple Road, Mahim for a period of 15 years  at an yearly rent of Rs. 10,200/- payable in equal quarterly instalments of Rs. 2,550/ in advance. Subsequently standard rent  was fixed  by the  trial Court  at Rs.  435/- which was  raised by  the appellate  court to  Rs. 620/- per mensem. The lease permitted the defendant to erect buildings and structures  in the two plots of land. The buildings were erected in  only plot  no. 12  and not  in plot no. 13 which remains unbuilt  and vacant. The defendant agreed to pay and discharge all  taxes and  outgoings imposed on the above two plots as  also  to  the  buildings  to  be  erected  by  the defendant.  The   defendant  also   undertook   to   deliver possession of  the two  plots to  the plaintiff "free of all buildings, erections  and structures"  on the  expiration of the lease.  Clause IV  empowered the lessor to terminate the lease and provided that the lessor will be at liberty to re- enter not  only upon  the two plots of the lands but also on the structures standing thereon. In the plaint it was stated that as the defendant had failed to pay rents and taxes and 1021 committed breach  of conditions  the plaintiff forfeited the lease and  called upon  the defendant to pay arrears of rent and taxes.  The suit was based not only on the forfeiture of the lease  but also for possession of the leased plots under S. 12  of the Bombay Rents Act. In paragraph 9 of the plaint it is  alleged "the  plaintiff say  that in the event of the defendant contending  that he  has become a statutory tenant of the  said land,  after the  tenancy  had  been  duly  and validly terminated,  the plaintiff  would  submit  that  the defendant had  failed and  neglected to  pay the  arrears of standard rent  amounting to  Rs. 11,472.30 upto 31st August, 1961 and does not observe and perform condition 11(b) of his lease, and  so he  is not  entitled to the protection of the Bombay Rent Control Act."      In paragraphs  10 and  11 of  the Plaint, it is alleged that the provisions of the Bombay Rents Act 47 of 1947 apply to the said land and the Court has jurisdiction to entertain and try  the suit. The reliefs asked for by the plaintiff in paragraph 13(a)  is that  the defendant  may be  directed to hand over  peaceful possession of the lands to the plaintiff together with the buildings and structures standing thereon. Thus it  would be seen that the plaint is based on the terms of the  lease deed  after forfeiting  the lease  and for the possession of the leased lands according to the terms of the Bombay Rent Act.      The main  defence which was raised by the tenant in the Courts below  as well  as before  us is that the suit is not triable under S. 28 of the Bombay Rents Act and in any event relief regarding  possession  of  the  structures  would  be beyond the  scope of  the relief  contemplated in the Bombay

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Rent Act.  Section  28  of  the  Bombay  Rent  Act  runs  as follows:-           "28 (1). Notwithstanding anything contained in any      law and notwithstanding that by reason of the amount of      the  claim  or  for  any  other  reason,  the  suit  or      proceeding would  not, but for the provision, be within      its jurisdiction, in Greater Bombay, the Court of Small      Causes Bombay.      (a)       X   X   X    X   X    X    X    X    X      (b)       X   X   X    X   X    X    X    X    X      shall have  jurisdiction to  entertain and try any suit      or proceeding  between a landlord and a tenant relating      to the  recovery of  rent or possession of any premises      to which  any of  the provisions of this part apply and      to decide  any application  made under  this Act and to      deal with any claim or question arising out of this Act      or any of its provisions 1022      and subject  to the  provisions of  sub-section (2), no      other court  shall have  jurisdiction to  entertain any      such claim or question."      The Section  confers jurisdiction on the Court of Small Causes Bombay  to entertain  and try any suit or proceedings between a  landlord and tenant relating to recovery of rents or possession of any premises to which any of the provisions of this  part apply. The jurisdiction thus conferred enables the Court  to try  any suit  between the  landlord  and  the tenant relating  to recovery  of possession of the premises. It is  admitted that  the premises  is the two plots of land only and  not the  superstructure. The plea of the plaintiff is that  the relief  for recovery  of possession of the plot which is the subject matter of the lease, would also include relief relating  to the  superstructure as  being related to relief of  recovery of  possession of  the  leased  premises namely the  plots and  land. The submission on behalf of the plaintiff is  that as  the jurisdiction of Civil Courts have been specifically  excluded, and  the  matters  relating  to possession of  the leased  premises, it would imply that not only relief  of the  possession of the leased lands but also matters relating  to it  would be beyond the jurisdiction of other courts and therefore the plaintiff has no other option than to  file the  suit for relief as to the structure being only ancillary and incidental to the relief of possession of the leased  lands. Before  we proceed to consider this plea, we might note that Mr. Soli J. Sorabjee, learned counsel for the plaintiff  submitted that though it might be open to him to contend that the reliefs relating to the structures based on the  terms of  the contract  would also be decisive on an application made  under the  act as  being  related  to  the recovery of  the possession of the leased premises, he would content  himself  with  the  plea  that  the  relief  as  to structures  is   so  closely  and  inextricably  related  to possession  of   the  land   that  no  effective  relief  of possession of the leased lands could be given without giving relief in  respect of  structures. Relief  as to  structures also  should   inevitably  follow.  If  this  submission  is accepted it  would be  unnecessary for  us to  consider  the other limb of the arguments on behalf of the appellants that the relief  claimed as  a result  of the  forfeiture is  not enforceable by a Court administering Bombay Rent Act or that the plaintiff  cannot enforce  terms of forfeiture which did not relate  to leased  plots or  that the defendant would be entitled to  relief against forfeiture under Ss.114 and 114A of the Transfer of Property Act.      All the  Courts below  have found that the defendant is

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not entitled  to any relief under S. 12(3)(b) of the Act and that so far as the leased plots are concerned, the plaintiff is entitled  to possession  under the Bombay Rent Act. After filing of the suit it is seen that the 1023 defendant asked for time for payment of arrears of rents and the matter  came up  before the  Court on the 28th June, 5th July and  6th August,  1962 for  payment of  arrears. On the last date  the appellant’s  advocate informed the Court that the appellant  was not  in a position to pay the arrears. It is  only  two  years  later  on  18th  September,  1964  the defendant obtained  Court’s permission to deposit balance of arrears of  Rs. 12,800/-  and  deposited  the  amount  under protest by  the plaintiff. The Trial Court after considering all the  facts found that there was intention of default and neglect in payment of rent. The conduct of the defendant was wilfully not  ready and  willing to  pay the  rent. It again found that  the payment  of arrears  was not made diligently and the  defendant had  flouted the  orders of  the Court to deposit the  arrears of  rent and  the discretion  cannot be exercised in  his favour when he persisted in not paying the taxes for about 12 or 13 years and was constantly in arrears of rent  for about  14 months at the time of the notice. The appellate Court  also came  to the  same conclusion  holding that it  is not  a case  where discretion of the Court under S.12 (3)  (b) should  be exercised  in favour of the tenant. The High  Court also  confirmed the  findings of  the  Court below that  the defendant  was not  entitled to relief under Section 12(3)(b)  of the  Act. On  the facts  we are also in agreement with  the findings  of the three courts below that the persistent default of the defendant on various occasions and his clear statement that he was not in a position to pay the arrears,  would exclude  any relief  under section 12(3) (b).      In a  recent decision  of this Court reported in Ganpat Ladha v. Sashikant Vishnu Shinde, it has been held that when the tenant  does not fulfil the conditions as required under section  12(3)(b),  he  could  not  claim  protection  under section 12(3)(b).  This Court  observed that it is difficult to see  how judicial discretion exercisable in favour of the tenant can  be  found  under  section  12(3)(b)  even  where conditions laid  down by  it were  not satisfied. This Court overruled the  decision of  the case of Bombay High Court in Kalidas v. Bhavan Bhagwandas. The conditions specified in S. 12(3) (b) will have to be strictly observed by the tenant if he wants to avail himself of the benefits provided under the Section.      On the  facts therefore  we find  that the plaintiff is entitled to  a decree  for possession of the two plots under the provisions  of the  Bombay Rent  Act. As plot No. 13 has not been  built  upon  and  is  vacant  there  could  be  no difficulty in confirming the decree for possession in favour of the plaintiff regarding plot No. 13. 1024      In Importers and Manufacturers Ltd. v. Pheroze Framroze Taraporewala and  Ors, this  Court held  that the  claim for compensation was  merely an  incidental claim for possession under the Act. "Section 28 had conferred jurisdiction on the Court of Small Causes not only to entertain and try any suit or proceeding  between a landlord and tenant for recovery of rent or  possession but  also to  deal  with  any  claim  or question arising  out of  this Act  or any of its provisions and S.  28 was thus wide enough to cover the question raised as between  the plaintiff  and the  sub-lessee". It  will be seen that  the plea  that a suit against a sub-lessee is not

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within the  jurisdiction of  the  Small  Causes  Court,  was negatived by  this Court  and it  was held  that section was wide enough  to  cover  the  questions  raised  between  the plaintiff and the sub-lessee.      In Babulal  Bhuramal and  Anr. v.  Nandram Shivram  and Ors. related  to sub-lessee  of the  premises. The  suit was filed for  ejectment of the tenant and the sub-tenant in the Court of  Small Causes. The tenant and the sub-tenants later filed  a  suit  before  the  Bombay  City  Civil  Court  for declaration that  the lessee  was a tenant and was protected from eviction  by the provisions of the Bombay Rents Act and that as  B and C were lawful sub-tenants, were also entitled to possession.  This Court agreed with the view taken by the High Court  that section 28 of the Act barred the City Civil Court from  entertaining the  suit filed  by the lessees and the sub-lessees  as section  28 conferred  the right  on the Small causes  to entertain  a suit  between a landlord and a tenant in  respect of  a claim which arose out of the Act or any of  its provisions.  Thus it prohibits a suit from being entertained by  the City  Civil Court at the instance of the tenant.      In  Raizada   Topandas  and   Anr.  v.  M/s.  Gorakhram Gokalchand it  was held  that if  a  suit  is  framed  by  a landlord or  a tenant  and relief asked for is in the nature of a  claim which arises out of Act or any of the provisions then only  and not otherwise will be covered by s. 28 and as there  were   no  such   claim  the  City  Civil  Court  has jurisdiction to  entertain the  suit. The plaint in the case proceeded on the footing that during the period of agreement the appellants  were mere  licensees and after the expiry of the agreement  they were trespassers. As the plaint in terms negatived the  relationship of  the landlord  and tenant, it was held  that the  Rent Court  had  no  jurisdiction.  This decision cannot be of any help to the appellant. 1025      In  Sushila   Kashinath  Dhonde  and  Ors.  v.  Harilal Govindji Bhogani  and Ors.,  this Court  held that it is not necessary that  there should be relationship of landlord and tenant in  respect of all the matters covered by S. 28(1) of the Act  so as  to give  jurisdiction to  the Court of Small Causes. It  further held  that in  respect of  other matters dealt  with  sub-section,  it  is  not  necessary  that  the relationship of landlord and tenant should exist between the parties before  the Court. The Court repelled the contention that a  charge created  by the  deed  executed  between  the parties did not give rise to any claims or questions arising out of  the Bombay Rents Act or its provisions and held that nature of  reliefs to  be granted  to the  plaintiff are all claims or  questions arising out of the Act and can be dealt with only  by the  special court  constituted under S. 28 of the Act.  No doubt,  the deed of charge furnished a cause of action, but  its legality,  validity and  binding nature and other  incidental   matters  connected   therewith  are  all questions arising  out of  the Act and the plea on behalf of the appellants that the rights of the plaintiff did not flow from the Act or any of its provisions but from the contract, could not be accepted.      The decisions  referred to  above will  show  that  the plaintiff/ landlord  of the  land is  entitled to  claim the relief for  possession of  his land and in effect the decree for possession  of the  land would mean that the land should be delivered  to him  without the structures. Apart from the relief under  the lease  deed, the  plaintiff is entitled to succeed as  he has  established that  there was  default  of payment under  the provisions  of the  Bombay Rents Act. The

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jurisdiction of the Small Causes Court to grant an effective decree for  possession of the land cannot be denied. Equally untenable is  the contention  of the  respondent that as the plaintiff has  sought two  reliefs one under the Bombay Rent Act and  another under  the Contract, the entire plaint must be rejected.  As we  have already  observed so  far  as  the relief of  possession of  the  premises,  i.e  the  land  is concerned, it  is exclusively within the jurisdiction of the Small Causes  Court. In asking for the relief for possession of the  land, the  plaintiff is  entitled to  incidental and consequential  reliefs   such  as   for  effectively  taking possession of the plot without the structures. The prayer in the plaint  asking for  possession of the land including the structures would  not take the suit out of the competence of the Small Causes Court. In this view it is not necessary for us to  go into  the question  as to whether the terms in the contract regarding  the forfeiture  can be  enforced by  the Small Causes Court. It is sufficient for the purpose of this Suit to hold that the plaintiff is entitled to seek for 1026 possession of  the land  which is  the premises in the suit, and in  getting possession of the land he is entitled to ask for possession  of the  land without any superstructures. In this connection  reference may  be made to the nature of the relief which  the plaintiff  is entitled  to. In  Ramchandra Raghunath Shirgaonkar  v. Vishnu  Balaji Hindalakar,  it was held that  the ordinary  rule of law is that the tenant must give up  vacant possession of the land demised at the end of the term and that if he builds on the land of the tenancy he builds at  his own  risk. At the end of the term he can take away his  building but if he leaves it there, it becomes the landlord’s property.  The Court further held that the tenant who had  been in  possession of  land for  a large number of years and  built a  costly and substantial house on the land of the  tenancy with  the  knowledge  of  the  landlord,  is entitled to some compensation      In K.  Arumugham Naicker and Anr. v. Tiruvalluva Nainar Temple that  after the  determination of  the lease, lessees were required  to deliver  over possession  of  the  demised premises to  the lessor  and the  lessees were  entitled  to remove the  structures which  they might have erected during the continuance of the tenancy. The lessees, however, failed to remove the structures on the date of the determination of the tenancy  and on the next date the premises were occupied by other  lessees, it  was held the lessees could remove the structures on and not after determination of the tenancy and having failed to remove the same on the determination of the tenancy they  lost  not  only  their  right  to  remove  the structures after  the determination  of the tenancy but also all right, title and interest in those structures      In K. Arumugham Naicker and Anr. v. Tiruvalluva Naickar Temple by  its Trustee,  it was  held  that  where  a  court directs by a decree or order vacant possession of land, that decree could be made effective by directing its own officers to remove  the super-structures  in the property and deliver vacant possession of the properties to the decree-holder. It is unnecessary  to have  any specific  power in that behalf. The power  to remove  the superstructures  is an  incidental necessary and  ancillary  power  to  the  power  to  deliver possession of the property.      We are  satisfied  that  the  Small  Causes  Court  had jurisdiction to entertain the suit of the plaintiff not only for possession  of the  land which is the premises under the Act but  also for  other reliefs  to  make  the  decree  for possession effective.  In this  connection the  plaintiff is

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entitled to  ask for  relief regarding  the superstructures. This incidental  or ancillary  relief would not take out the suit beyond 1027 the jurisdiction  of the  Small Causes  Court. The plea that the composite  relief had been asked for and that the entire plaint ought  to be  rejected is  also unsustainable. In the result, we  agree with the contentions of the plaintiff that in asking  for relief  as to  possession of  the land, he is entitled to ask for the demolition of the structures and for grant of  vacant possession of the plots. So far as the plot No. 13 is concerned, there is no difficulty. The plot is not built upon and is vacant and therefore we have no hesitation in confirming  the decree  for possession so far as the plot No. 13 is concerned.      Plot No.  12 has been built upon. There are about three storeys consisting of about 72 flats, shops with carpet area of  13,000   square  ft.  and  the  cost  of  building  with superstructures in  1949 was about Rs. 6,00,000/-. We may in this connection note that from the date of the decree passed by the  High Court  on 23rd  October 1969, the defendant has not paid arrears of rents or the taxes due on the buildings. He is  in law  bound to  pay the  arrears of  rent  and  the municipal charges which he has undertaken.      On a  consideration of  the facts  of the case, we feel that there  are no  grounds for  interfering with the decree passed by  the High  Court for  possession not  only of  the vacant plot but also of the superstructure and mesne-profits and arrears  of rent.  The law  provides for  the tenant  to remove the superstructure on the termination of the tenancy. If it is not thus removed the tenant loses all his rights to the superstructure  and the landlord becomes entitled to it. But in  a case  where there is a substantial building, it is only  reasonable   that  the   court  should   explore   the possibility of  payment of  some compensation  to the tenant who had put up this structure. But in this connection we are reminded that  for several years neither the arrears of rent nor the  taxes amounting  to several lacs of rupees had been paid by  the tenant. Not only the tenant but several persons who have  put up  flats at  their own  costs may press their claim for compensation and it will be difficult to determine as to who are entitled to compensation and the proportion of the compensation  to which  they will  be  entitled  to.  We enquired of  the parties  at the conclusion of the arguments if it was possible to come to some arrangement regarding the superstructure but  to our  regret the  parties informed  us that they  could  not  arrive  at  any  settlement.  In  the circumstances, we  have no alternative except to confirm the judgment and decree passed by the High Court. We, therefore, dismiss the appeal, but in the special circumstances of this case we make no order as to costs in this Court. S.R.                                      Appeal dismissed. 1028