As per case facts, the landlord (Respondent/Plaintiff) filed a suit for eviction against the tenant (Petitioner/Defendant No. 1, later legal heirs) from the suit premises (Survey No. 8-A and 15-A) ...
WP.3721.2004 (J) C3.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 3721 OF 2004
1. Shivlal Vithaldas Shah (since deceased)
through legal heirs and representatives
1A. Smt. Bhanumali Shivalal Shah
Wife, age/69
1B. Shri. Mukesh Shivlal Shah
Son, age/45
1C. Smt. Bhavna Nilesh Boldra
Daughter, age/42
1D. Smt. Rupa Jhon Alphonso
Daughter, age/35
1E. Shri.Viren Shivlal Shah
Son, Age/33
R/o at Navghar, Manikpur, Vasai
District : Thane.
2. Ambika Sales Corporation
through its Proprietor Shivlal Vithaldas
Shah No.1 abovenamed
residing at Navghar/Manikpur
Vasai, District: Thane ... Petitioners
Versus
Hasmukh Mansukhlal Shah
Adult, occupation: Business Residing at ...Respondent/
‘Satyam’ Ambadi road, Vasai, Distrist : Thane. Original Plaintiff
akn 1
ANANT
KRISHNA
NAIK
Digitally
signed by
ANANT
KRISHNA
NAIK
Date:
2026.06.08
19:20:15
+0530
WP.3721.2004 (J) C3.doc
WITH
CIVIL APPLICATION NO. 558 OF 2019
Hasmukh Shah ...Applicant/
Orig. Respondent/Plaintiff
Versus
Bhanumali Ben S. Shah & Ors. ...Respondents.
WITH
CIVIL APPLICATION NO. 559 OF 2019
Hasmukh Mansukhlal Shah ...Applicant
Versus
Shivlal Vithaldas Shah (since deceased)
through Lrs 1A Smt. Bhanumali Shivala Shah & Ors. ...Respondents.
****
Mr. Prasad S. Dani, Senior Advocate a/w. Adv. Jayesh M. Joshi for the
Petitioners.
Mr. Prasad K. Dhakephalkar, Senior Advocate (through VC) a/w. Adv. Pranav
Sampat, Adv. Yash Kataria i/b. Khaitan & Co. for the Respondent.
****
CORAM : M. M. SATHAYE, J.
RESERVED ON : 13
th
JANUARY 2026
PRONOUNCED ON : 8
th
JUNE, 2026
JUDGMENT :
1. This Petition is filed by tenants against the Respondent/landlord under
Articles 226 and 227 of the Constitution of India challenging the judgment
and decree dated 05.03.2004 passed in Civil Appeal No. 96 of 1999 by
Additional District Judge, Palghar by which the appeal filed by the
tenants/original defendants was dismissed, thereby confirming the judgment
and decree dated 25.06.1999 passed by the Joint Civil Judge, Junior Division,
Vasai in Regular Civil Suit No. 236 of 1988. The Trial Court has decreed the
suit partly thereby directing the Defendants/tenants to hand over the vacant
akn 2
WP.3721.2004 (J) C3.doc
and peaceful possession of Survey No. 15-A to the Respondent/Plaintiff. The
suit is dismissed in respect of Survey No. 8-A, Hissa No. 3. The Petition is
arising out of provisions of the Bombay Rents, Hotel and Lodging House Rates
Control Act, 1947 (‘Bombay Rent Act’ for short).
2. The land bearing Survey No. 8-A Hissa No. 3(P) and Survey No. 15-A
Hissa No. 8(P) admeasuring 927.859 and 2149.356 respectively, alongwith a
house and a shed more particularly described in paragraph No. 1 of the plaint
situated at Navghar, Taluka–Vasai, presently District-Palghar (at the relevant
time, District-Thane) is the the subject matter property, which is hereinafter
referred to as ‘the suit premises’.
3. The case of the Respondent/landlord as per plaint is as under. That he
became the owner of the suit premises by the sale deed dated 06/07/1984
from the earlier landlord/owner Mr. Pascal Duma Dassa. That the Defendant
No. 1 was the tenant of earlier landlord on monthly rent of Rs.100/- and was
running saw-mill business. That the Plaintiff requires the suit premises for
construction of building and its sale. That there is a shed and house no. 12-B
in Survey No. 8-A. That the open land in Survey No. 15-A is also not used by
the Defendant No. 1. That some portion of shed in Survey No. 8-A was given
by the Defendant No. 1 to one sub-tenant Mr. Gonsalves, who has surrendered
the same to the Plaintiff. That out of the shed in Survey No. 8-A, some portion
is in possession of the Defendant No. 1, who has not used it for last three years
and therefore the Plaintiff is entitled for recovery of possession. That the
Plaintiff has purchased the suit premises for development and for constructing
building and for selling the same and requires the same for his own business.
That despite demand, the Defendant No. 1 has not given possession of the suit
premises. That the earlier owner, earlier landlord informed the Defendant to
akn 3
WP.3721.2004 (J) C3.doc
pay the rent to the Plaintiff and as such the Defendant No. 1 is tenant of the
Plaintiff. That portion admeasuring 10’x10’ and southern portion of the shed
admeasuring 20’x10’ is unlawfully sub-let to the Defendant No. 2, where the
Defendant No. 2 is running a business of storing and selling building
materials. For this reason also the Plaintiff is entitled to recovery of possession.
Therefore, the suit was filed seeking possession on various grounds under
Bombay Rent Act including requirement, non-user and unlawful subletting.
4. The Defendant No. 1 filed written statement and additional written
statement contending
inter alia that after taking the entire suit property on
rent since 1948, he has constructed shed in Survey No. 8-A and leased out
some portion of it to a sub-tenant. That initially suit premises was used to run
saw mill. That non-user of part of shed is denied. That House No. 12-B in
Survey No. 8-A is used as office and wood-depot. That other land situated in
the suit premises is used for residence of servants. That after taking suit
premises on lease, he has constructed a shed which bears House No. 12-A and
only part of this shed was given to sub-tenant. However, that portion is in
possession of Plaintiff but remaining portion is in possession of the Defendant
No. 1. That he has carried out repairs to the shed. The case of requirement,
non-user and unlawful subletting is denied.
5. The learned Trial Judge framed various issues and found that the
ground of requirement is proved partly and therefore suit is partly decreed
only to the extent of Survey No. 15-A. The Defendants filed the said Appeal
challenging the decree of partial eviction. By the impugned judgment and
decree, the Appeal is dismissed thereby confirming the decree of partial
eviction.
6. The Petition was admitted on 22.07.2004 and interim stay was granted
akn 4
WP.3721.2004 (J) C3.doc
to the eviction decree. During the pendency of the Petition, the
Petitioner/Defendant No. 1 expired and his legal heirs were brought on
record.
SUBMISSIONS
7. Learned Senior Advocate, Mr. Dani appearing for Petitioners/tenants
submitted as under:
7.1. That House No. 12-A was constructed by the tenant and House No. 12-B
was let out to him by previous landlord. That part of House No. 12-A is
surrendered to the landlord. That the entire suit premises excepting the part
surrendered to landlord, is in possession of the tenant. That there is no cross-
examination about purpose of letting or about letting out of shed. That no
case is made out in the plaint for evidence under 13(1)(ii) of the Bombay Rent
Act. That decree of eviction in respect of part of suit premises is not legal.
7.2. That the Appeal Court has erred in appreciating the facts. That Appeal
Court has not considered the nature of ‘appurtenant land’ and unless there is
conclusion about which land is ‘appurtenant’, partial decree could not have
been passed. That Appeal Court has considered what was nobody's case. That
there is no discussion about ‘appurtenant land’ by the Appeal Court. That
Survey No. 15-A cannot be considered as ‘appurtenant to Survey No. 8-A’. That
the word ‘appurtenant’ must be applied in its primary sense and therefore,
unless the Court comes to conclusion that Survey No. 8-A cannot be used
without Survey No. 15-A, decree cannot be passed u/s. 13(1)(ii) of the
Bombay Rent Act. He therefore prayed for setting aside the impugned decree
and remanding the matter for re-consideration.
7.3. That the sanction of plan relied upon by the Respondent / Landlord for
akn 5
WP.3721.2004 (J) C3.doc
the purpose making out requirement to construct building is not sanctioned by
proper authority.
7.4. He submitted that Section 13(1)(i) of the Bombay Rent Act cannot be
applied because it is not an open space. He has relied upon following caselaw
in support of his case :
(a) Morarji Goculdas Deoji Trust and Others v/s Madhav Vithal
Kudwa (1982) SCC OnLine Bom 283.
(b) Tayeb Abubaker Latif versus Jadhavji Mithabhai (1993) SCC
OnLine Guj 493.
7.5. He submitted that the judgment of Sakeena and Others v/s. Kusumbi
and Others (1982) SCC OnLine Bom 301 is incorrectly applied by the Courts
below.
8. On the other hand, learned Senior Advocate Mr. Dhakephalkar,
appearing for the Respondent-Plaintiff/landlord submitted as under:
8.1. That the Court must consider the case as a whole and both the Trial
Court as well as Appeal Court have granted and confirmed decree of partial
eviction by which the Petitioners/Tenants are not losing entire suit premises
and can still carry on their business in Survey No. 8-A regarding which suit is
dismissed. That there is no evidence brought before the Court that the tenants
will be required to close down their business.
8.2. That the plans which are sanctioned for the purpose of
erecting/constructing new building are only in respect of Survey No. 15-A for
which requirement was pleaded. That the intention of the Plaintiff/landlord
was clear and requirement was only in respect of Survey No. 15-A. That suit is
akn 6
WP.3721.2004 (J) C3.doc
composite for entire suit premises. That the Respondent/Plaintiff is the
subsequent purchaser and it was for the tenant to bring the best evidence
before the Court about absence of sub-letting or it being authorized.
8.3. That the suit premises are land and construction both. That the lease
was composite and entire suit premises is subject matter of suit. Therefore,
Section 13(1)(i) of Bombay Rent Act will not apply. That for the landlord to
make out a case of requirement u/s. 13(1)(ii), no proof of bonafide
requirement is required and the said section was incorporated with an object
to bring appurtenant lands within its purview to encourage construction.
8.4. That the saw-mill which was being run by the Petitioners is closed. That
the witness of tenant has given admissions about saw-mill being closed. No
license is produced for conduct of the saw-mill. That the sub-tenant has
surrendered possession of part of the shed to the landlord and entire business
of tenants is in Survey No. 8-A. That there is no clear prejudice to the
Petitioners/tenants. Therefore, there cannot be any hardship to the Petitioners.
He submitted that the argument about Survey No. 15-A not being appurtenant
is nothing but hair- splitting and there are no pleadings about it.
8.5. That whether CIDCO or local Assistant Director, Town Planning is the
proper authority for sanctioning plan is not the issue involved and cannot be
gone into in Writ jurisdiction arising out of landlord-tenant suit.
8.6. That the case law of Sakeena and Others (Supra) is properly applied by
the Appeal Court. That no interference is required in the concurrent findings
granting partial eviction to the landlord. That 50 years have passed and the
landlord is still waiting for getting back possession and not even contractual
rent is paid.
akn 7
WP.3721.2004 (J) C3.doc
8.7. He submitted that the judgment of Gujarat High Court in case of Tayeb
Abubaker Latif (Supra) is not applicable to the facts of this case. He submitted
that in Morarji Goculdas Deoji Trust and Others (Supra), the action involved
was against an act of trespass and in that context the suit was filed. In the
present case, the facts are completely different.
REASONS AND CONCLUSION
9. Having carefully considered the rival submissions and on perusal of the
records, I find that there is no reason to interfere, for reasons recorded below.
10. At the outset, it is necessary to note that this is a Petition filed
challenging concurrent findings of fact by which the suit for eviction of
landlord is decreed partially only in respect of part of suit premises being
Survey No. 15-A.
11. In Morarji Goculdas (Supra) relied upon by the learned Counsel for the
Petitioners, the Division Bench of this Court was considering the meaning of
land appurtenant, when it has observed as under:
“5.xxxx Now, though one wishes that on the question here the law
was certain and succinct, it would, in the very nature of things, not be
possible to formulate a precise and singular test or a principle of universal
application for determining what is appurtenant. The diversity and the
indeterminate nature of the term "appurtenant" and colour, form and
shape it can take from case to case can be very interesting indeed. It is a
term of variable import, scope and ambit. There can, therefore, be no
fixed, invariable or strait-jacket approach or formula in this regard.
Besides, whether a thing is appurtenant and if so, to what extent, would
be a mixed question of fact and law. The resultant answer must, in each
case, turn and depend upon the facts and circumstances of that case and
the context in which the question arises. Nevertheless, a look at the
standard references should be useful.”
(emphasis supplied)
akn 8
WP.3721.2004 (J) C3.doc
12. This judgment of the Division Bench is then further considered by
learned single judge of this Court in Sakeena vs. Kusumbi (Supra) reiterating
that whether a particular premise is land appurtenant or not will depend on
facts and circumstances of each case and there cannot be any straight jacket
formula in that regard. Therefore, let us consider the facts of the present case.
13. The main plank of the argument advanced on behalf of the
Petitioners/tenants is that the word ‘appurtenant’ must be applied in its
primary sense and unless Survey No. 15-A is held to be ‘land appurtenant’
within the meaning of Section 5(8)(b) of the Bombay Rent Act, a decree of
eviction in respect thereof could not have been passed.
14. It is therefore necessary to peruse the pleadings of the parties. It is
settled position of law that law need not be pleaded and the Courts can
construe the pleadings as a whole. From bare perusal of the plaint, it is seen
that the Respondent/landlord has sought possession of the entire suit premises
including the plots of land and structures standing thereon. The open portion
of land, which is part of the suit premises is therefore duly sought possession
of, and can be safely considered as demanded both under Section 13(1)(i) and
Section 13(1)(ii) of the Bombay Rent Act.
15. From the averments in the written statement, it is seen that according to
the Petitioners/tenants House No. 12-B was let out by previous landlord and
House No. 12-A was constructed by the tenants and part of the construction
from House No. 12-A (shed) was surrendered to the landlord by the sub-
tenant. Therefore, it is clear that the suit premises is a composite bunch of two
plots and construction thereon and therefore Survey No. 15-A will have to be
considered as part and parcel of suit premises.
akn 9
WP.3721.2004 (J) C3.doc
16. I have perused the description of the suit premises, which is also in the
nature of composite suit premises including both plots and construction
thereon.
17. Defendant No. 1-Shivalal Vithaldas Shah (DW-1) has stated in his
examination-in-chief that the premises taken on rent was ‘open space and
house together’. He has stated that part of the construction is occupied by his
servants and part of the construction is occupied by office. He has stated that
he constructed 90’x50’ shed having House No. 12-A, out of which, part was
given to sub-tenant. He has further stated that in the remaining part of the
shed, he keeps articles such as wood and wood cutting machine. He has also
stated that in the open space, he stores wood, building materials, cement
pipes, cement sheets, plastic and iron pipe etc. He has also stated that the
open space is not separately divided and both the constructed portion/shed
and open space is in his possession. In the cross-examination, DW-1 has
admitted that, in the past, he had saw-mill license and its storage and work
was conducted in the suit premises. He has also admitted that the open space
is being used for storing building material.
18. Thus, the overall reading of the evidence led by Defendant No. 1- tenant
indicates that the entire suit property i.e. open space alongwith
structures/shed therein is in his possession under a composite tenancy, which
is being used for various purposes. It is not the case of the Petitioners/Tenants
that Survey No. 15-A was separately leased. In such situation, it is not possible
to conclude that Survey No. 15-A is a separate demised premises.
19.Considering the evidence led by the Defendant No. 1/tenant, as
discussed above, in my view, the open land (both Survey No. 8-A and 15-A)
and the buildings thereon (House Nos. 12-A and 12-B) seem to have a nexus
akn 10
WP.3721.2004 (J) C3.doc
and co-relation with each other and therefore Survey No. 15-A can be safely
said to be a land appurtenant to the buildings and decree in respect of Survey
No. 15-A, as granted by the Trial Court and confirmed by the Appeal Court,
cannot be faulted with.
20. The Trial Court, on appreciation of evidence has held that the landlord
is entitled to only part of the suit premises and accordingly eviction decree is
granted only in respect of Survey No. 15-A. The Appellate Court in paragraph
No. 16 of the impugned judgment has held that entire land Survey No. 8-A
Part 3 and Survey No. 15-A (Hissa No. 8) was leased out to the tenant and
both Survey numbers are adjacent to each other and considered part of one
property. It is further noted by the Appellate Court that the Defendant has
admitted that besides the portion which is in his occupation (shed and house),
land is still vacant.
21. In Morarji Goculdas (Supra), the suit involved was for declaration by
landlord. That the tenant was committing trespass by parking his car on the
open space compound of the building and suit was for permanent injunction
restraining the tenant from doing so. The Division Bench on considering the
definition of ‘land appurtenant’ under section 5(8)(b) of the Bombay Rent Act
held that the tenant therein has failed to prove that as a result of said
provision, there is any statutory right to park his car in the suit compound. In
the present case at hand, there is no such question of trespass involved. The
question is purely whether Survey No. 15-A can be considered as land
appurtenant. As is held by the Hon'ble Division Bench of this Court, this
question will have to be decided in the facts and circumstances of the present
case.
22. The facts of Sakeena vs. Kusumbi (Supra) are very close to the facts of
akn 11
WP.3721.2004 (J) C3.doc
the present case as can be seen from paragraph 3 of said judgment. In that
case, the demised premises were three plots, which were required for erection
of new residential buildings under section 13(1)(ii) of the Bombay Rent Act.
In the present case also the requirement is pleaded for erection of new
building, which is approved by the local authority. In Sakeena vs. Kusumbi
(Supra), the learned Single judge of this Court has rejected the argument
advanced on behalf of the tenant that Section 13(1)(ii) will have to be given a
restricted meaning and will have to be considered in its primary sense. The
learned single Judge of this Court has accepted that the expression
‘appurtenant’ used in Section 5(8)(b) of the Bombay Rent Act will have to be
considered in secondary and non-technical sense as laid down by the Division
Bench of this Court in Morarji Goculdas (Supra).
23. In the facts of Sakeena vs. Kusumbi (Supra), it was found by the Court
that the building and the plots were treated as consolidated property for the
purpose of tenancy and therefore it was held that the decree granted by the
Appellate Court directing eviction from the vacant land adjoining the main
building, holding them as lands appurtenant, was confirmed. Therefore, in my
considered view, the Appellate Court, has rightly applied the judgment of
Sakeena vs. Kusumbi (Supra) to the facts of the present case, while confirming
the decree of eviction.
24. So far as the judgment of Tayeb Abubaker Latif (Supra) is concerned,
the learned single judge of the Gujarat High Court, considering the area and
extent of the property involved therein, held that the constructed portion is
tiny as compared to the portion of land and held, in the peculiar facts of that
case, that it cannot be said to be appurtenant to the building let out.
The facts of the present case are completely different. The oral evidence
akn 12
WP.3721.2004 (J) C3.doc
as discussed above clearly indicates that it was a composite tenancy with two
plots having existing structure as well as large sheds constructed by tenant
thereafter. According to the Petitioners/tenants themselves, as stated in the
written statement, the entire suit land was admeasuring 3724 sq. yards, which
is roughly about 30.7 Gunthas of land. The Defendant No. 1 has admitted that
about 20 Gunthas is open land out of the total property. Considering these
figures, this is also not a case where the constructed portion is a tiny or small
portion compared to open land, as sought to be suggested on behalf of the
Petitioners. Therefore, the judgment of Tayeb Abubaker Latif (Supra) will not
help the Petitioners in the peculiar facts of the present case. In the said
judgment, the suit for eviction was dismissed, which was confirmed by the
Appeal Court and the High Court was considering a Revision Application
against such concurrent findings of fact.
25. In my considered view, if the argument advanced on behalf of the
Petitioners is to be accepted (about applying ‘appurtenant’ in restricted and
primary sense) then in no case, where the buildings and open spaces are
leased out as composite lease, the landlord will be able to get back possession
of the open space/land leased together with the house properties. Because in
each and every case, the expression appurtenant used in section 13(1)(ii) will
have to be given a restricted meaning in its primary sense, as suggested by
learned Counsel for the tenants. I do not think that it is the correct way of
interpreting section 13(1)(ii) by the Bombay Rent Act. The said provision will
have to be applied in the secondary and non-technical sense as laid down by
the Division Bench in Morarji Goculdas (Supra).
26. The Trial Court, on appreciation of the pleadings and evidence, has
rightly held that the case is covered under section 13(1)(ii) of the Bombay
akn 13
WP.3721.2004 (J) C3.doc
Rent Act. The Appeal Court has also considered the submission about whether
the case is covered under the scope of Section 13(1)(ii) of the Bombay Rent
Act. The Appeal Court has considered the Division Bench judgment of Morarji
Goculdas (supra) and Sakeena vs. Kusumbi (Supra). The Appellate Court
having regard to the overall facts and circumstances of the case, has held that
the Trial Court has struck a balance by passing decree only in respect of part of
suit premises, thereby protecting the interest of both the landlord and the
tenants. In my view, no fault can be found by the view taken by the Trial
Court, which is confirmed by the Appellate Court.
27. As rightly submitted by learned Counsel for the Respondent/landlord,
whether CIDCO or the local Assistant Director, Town Planning is the proper
authority for sanctioning of building plans, is not subject matter of this
Petition and no argument in that behalf can be entertained in this petition.
28. The Courts below have concurrently held that the suit premises are
required by the Respondent/landlord for constructing building/flats for which
plans are sanctioned. The Courts below have concurrently decreed this suit
under section 13(1)(ii) of the Bombay Rent Act. The Courts below have
concurrently passed a decree only in the respect of part of the suit premises
(Survey No. 15-A) and the portion of land under Survey No. 8-A where the
Petitioners have their structures as well as business, has not been directed to
be evicted. In fact the suit is dismissed for Survey No. 8-A.
29. In the aforesaid facts and circumstances, the view taken by the Trial
Court as well as Appeal Court is based on material before them and is the
most probable view. There is no perversity in the impugned judgments. There
is no reason to interfere in the limited Writ jurisdiction of this Court.
akn 14
WP.3721.2004 (J) C3.doc
30. The petition is accordingly dismissed thereby confirming the judgment
and decree of eviction dated 25.06.1999, as confirmed by the impugned
judgment and decree dated 05.03.2004. The Petitioners are directed to hand
over vacant and peaceful possession (as directed by the Courts below) within
a period of 6 weeks.
31.Rule is discharged and the Writ Petition is disposed of in about terms
with no order as to costs. In view of disposal of the Writ petition, pending Civil
Applications are also disposed of.
32. At this stage, learned counsel for the Petitioners seeks continuation of
interim stay to the eviction decree for a period of 6 weeks. Learned counsel for
the Respondents opposes it contending that the Court has already granted
time to vacate. Considering the facts and circumstances of the case, the
Petitioners are directed to hand over vacant and peaceful possession within 8
weeks from today. Considering that time to vacate is being granted, the
request for continuation of stay is rejected.
33. All concerned to act on duly authenticated or digitally signed copy of
this order.
(M. M. SATHAYE, J.)
akn 15
Legal Notes
Add a Note....