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2006 DIGILAW 1157 (AP)

D. HANUMANTHA RAO v. MOHAMMED IMAM HANNORAI

2006-09-19

L.NARASIMHA REDDY

body2006
( 1 ) AN interesting question arises for consideration in this C. R. P. The relevant facts, in brief, are as under : the petitioner is the tenant in respect of the premises bearing No. 1-4-443/a, kavadiguda, Musheerabad, Hyderabad, on a monthly rent of Rs. 700. 00. The respondents are the owners of the same. They filed r. C. No. 58 of 1999 before the I Additional rent Controller, Hyderabad, stating that the petitioner is a wilful defaulter in the matter of payment of rent, and by the time the R. C. was filed, rent for the period from 1/3/1997 to 31/12/1997 was due. They have also pleaded that the premises are required for their own occupation, since they returned from Abroad. It was also pleaded that the building is more than 50 years old, and it is in a dilapidated condition. ( 2 ) THE petitioner admitted that he is the tenant of the respondents. He denied the allegations as to default in payment of rent; condition of the building, and bona fide requirement. The learned I Additional rent Controller, allowed the R. C. , through order dated 3/6/2002, holding that the petitioner committed default in payment of rents, and that the respondents, bona fides, require the premises, for their occupation. ( 3 ) PETITIONER filed R. A. No. 214 of 2002 in the Court of Additional Chief Judge, city Small Causes Court, Hyderabad. The appeal was dismissed through order dated 8/11/2005. Thereafter, he filed the present c. R. P. The C. R. P. was listed for admission on 10/1/2006. Notice before admission was issued, and interim stay was granted for a period of three weeks. Thereafter, it was posted on 28/1/2006. On that day, the C. R. P. was dismissed as withdrawn, and the petitioner was granted time till 31/7/2006, for vacating the premises. Default clause was also added. ( 4 ) PETITIONER filed C. M. P. No. 1140 of 2006, with a prayer to extend the time for vacating the premises, by six months, so as to enable him to secure alternative premises. After hearing the learned Counsel for the petitioner and learned Counsel for the respondents, this Court extended the time till 31/8/2006, through order dated 1/8/2006. ( 4 ) PETITIONER filed C. M. P. No. 1140 of 2006, with a prayer to extend the time for vacating the premises, by six months, so as to enable him to secure alternative premises. After hearing the learned Counsel for the petitioner and learned Counsel for the respondents, this Court extended the time till 31/8/2006, through order dated 1/8/2006. At that time, the respondents expressed a doubt on the bona fides of the petitioner and stated that he was taking recourse to several steps, to continue in possession of the premises. In that view of the matter, the petition was directed to be listed after the expiry of the period, to ensure compliance. ( 5 ) ON 1/9/2006, when the C. M. P. was listed, the learned Counsel for the respondents, represented to this Court that the petitioner had vacated the two rooms and the varandah, but continued to remain in occupation of the surrounding open place, in which he raised some temporary structures. It was in this context, that this court required the petitioner to substantiate his acts and omissions. ( 6 ) SRI M. Basith Ali Yavar, learned counsel for the petitioner submits that his client was given on lease, only two rooms and the varandah, and that the are abutting it, was not the subject-matter of lease. He contends that the prayer made in the r. C. , itself was in respect of two rooms and varandah, and under the guise of the eviction order obtained therefore, the respondents cannot evict the petitioner from the other area in his occupation. ( 7 ) SRI T. V. Rajeevan, learned Counsel for the respondents, on the other hand, submits that the petitioner was in occupation of the constructed area as well as the open place, surrounding it, and that there is no justification on his part in not vacating the same. ( 8 ) FROM the facts referred to above, and the submissions of the learned Counsel for the parties, it is evident that the petitioner has already suffered an order of eviction, and has withdrawn the C. R. P. , filed by him, assailing the order. This Court granted time for vacating the premises, and thereafter it was extended. The question that arises for consideration is, whether the petitioner had any independent right, over the area surrounding the premises, which he had vacated. This Court granted time for vacating the premises, and thereafter it was extended. The question that arises for consideration is, whether the petitioner had any independent right, over the area surrounding the premises, which he had vacated. ( 9 ) IN the affidavit filed in the present stage of the proceedings, the petitioner came forward with the plea of adverse possession, vis-a-vis the area that surrounded the two rooms and varandah, vacated by him. To a specific question to the respondents as well as the Counsel, as to whether he came into possession of the open place, adjoining the constructed premises before the commencement of the lease; the answer was in the negative. Admittedly, the petitioner started using the adjoining open place after he was inducted as a tenant in the premises. It may be that, he had raised certain structures on it, without permission or knowledge of the respondents. Admittedly, he did not obtain any permission from the Municipal corporation, for undertaking such temporary or improvised construction. Though ample time was given to the petitioner, he did not place any material before this Court, to show that he exercised independent right of his own, vis-a-vis the said property. ( 10 ) IT is not uncommon that, whenever the premises are given on lease, the lessee is permitted to use the surrounding open place, or amenities, as the case may be. The right to use such open place or amenities, does not exist independent of the constructed premises. It is co-extensive with the lease. The obligation to vacate the open place or to discontinue the use of other amenities, would, invariably, follow the obligation to vacate the constructed premises. Acceptance of the plea of the petitioner would lead to dangerous consequences and preposterous situations. On the very premise that there did not exist an independent lease or tenancy for such open area, the tenant can successfully abort any attempt to evict from him. Having entered as a tenant of one or two rooms, he may turn out to be owner of a large open place around them. ( 11 ) THE question of tenant or lessee acquiring any right through adverse possession in respect of open places, surrounding the leased area; does not arise. Having entered as a tenant of one or two rooms, he may turn out to be owner of a large open place around them. ( 11 ) THE question of tenant or lessee acquiring any right through adverse possession in respect of open places, surrounding the leased area; does not arise. Firstly, when the use or occupation of such open area arose, in view of the express or implied permission, accorded by the lessor, the question of the possession being adverse to him does not arise. Secondly, when open place is part and parcel of the leased constructed area, no independent right exists, as regards the former. ( 12 ) THIS Court does not find any legal or factual basis to accept the plea of the petitioner that he is entitled to remain in possession of the area, surrounding the premises, that was leased out to, and vacated, by him. ( 13 ) IT is accordingly directed that the petitioner shall vacate the area, that surrounded the schedule premises, in R. C. No. 58 of 1999, within four weeks from today, failing which, it shall be open to the respondents to take out execution for the same.