P.K. Tare, J.
1. This appeal is by the defendant-tenant against the decree, dated, 4-3-1963, passed by Shri L. P. Gupta, Fourth Additional District Judge, Indore, in Civil Regular Appeal No. 15 of 1962, reversing the decree, dated, 30-9-1961 passed by the Third Civil Judge Class II, Indore, in Civil Suit No. 14 of 1960.
2. The appellant was originally the tenant of one, Badri Bhola, who had filed civil suit No. 169 of 1956 for eviction, arrears of rent and damages for use and occupation in the Court of the City Civil Judge Class, II Indore on the ground of genuine need of residence, as also on the ground of default in payment of arrears of rent despite a notice of demand. That suit was dismissed except for arrears of rent amounting to Rs. 82. It was held that the landlord had no genuine need for residential purposes. Similarly, the ground under Section 4 (a) of the M. B. Accommodation Control Act, 1955 was also negatived. At this stage, it may be pertinent to note that in that case a rent note, dated 4-9-1944 (Ex. P-1)--executed by the appellant was filed, which specifically provided for one month's notice before the tenant left the premises at any time.
3. Aggrieved by the decree of dismissal, Badri Bhola had filed an appeal. During the pendency of that appeal, he executed a registered sale deed, dated 16-1-1959 (Ex. P-3) in favour of the present respondent. Therefore, as a transferee pendente lite, the present respondent was impleaded as an appellant in that suit. However, that appeal was also ultimately dismissed, and the decree of dismissal was upheld.
4. It is further to be noted that the appellant has not executed any fresh lease deed or rent note in favour of the respondent, but he continued to be in occupation as a tenant of the present respondent.
5. The respondent issued a combined notice,which was a notice of demand, as also a quit-notice, dated 20-11-1959 (Ex, P-l) claiming arrears of rent and also eviction of the premises on the ground of genuine need for residential, as also non-residential purposes. It was his specific allegation that the premises are partly residential and partly non-residential. By the said notice, the respondent called upon the appellant to vacate the premises on the expiry of 31st December, 1059. The said notice was received by the appellant on 21-11-1959, as is clear from the postal acknowledgment (Ex. P-2).
6. In the present plaint also, the respondent's allegation was that the premises were partly residential and partly non-residential and that he needed them for his residential, as also for his non-residential purposes. As such, from the plaint allegations, it is clear that although the tenancy was created by a single lease as is evidenced by the rent note, dated, 4-9-1944, the respondent treated the premises as two distinct items respectively used for residential and non-residential purposes and, therefore, he wanted them to be vacated as he needed them for both [he purposes.
7. The appellant's defence was that the tenancy commenced from the 16th of each month according to English calendar, and not the first. He further alleged that he had sent all arrears of rent by a money order, but the landlord refused to accept the same. He also denied that the landlord needed the house either for residential or for non-residential purposes. His further contention was that the previous judgment in Civil First Appeal No. 468 of 1958 was binding on him, and the need alleged was not in any way different from the one alleged in that case. Therefore, he could not evict the appellant.
8. It is not clear from the record as to when the earlier case, namely, Civil First Appeal No. 468 of 1958 was disposed of. The respondent on his own showing applied in that appeal for being made a party in place of the original landlord. Badri Bhola. He did not press that appeal, and consequently his genuine need as a transferee pendente lite was undoubtedly negatived in that case. Therefore, the question arises whether the respondent's present suit is based on the same old allegations or on some new allegations arising out of changed circumstances. That aspect will affect the question of res judicata.
9. The learned Judge of the trial Court framed several issues and answered them as follows :--
Whether the tenancy commenced from the 16th of each month or from the 1st.
From the 1st.
Whether the plaintiff needs the premises for his residential and non-residential purposes.
Suit for both purposes defective. No need for non-residential purposes established.
Can the plaintiff not evict the tenant as he is in occupation of other suitable accommodation.
He was already in occupation of non-residential premises. He was not in occupation of any residential accommodation,but he could not have combined accommodation for residentialneed.
Whether landlord refused the money sent by the tenant towards arrears of rent
Whether the defendant was entitled to compensation amounting to two years rent for eviction from non-residential premises.
Whether the sale deed, dated 16-1-1959 (Ex. P. 3) executed by Badri Bhola in favour of the plaintiff was colourable in order to evict the tenant only.
The main reasoning of the trial Judge was that the premises being combined, the landlord could not evict the tenant, although he had established residential need, and had failed to establish non-residential need. In the opinion of the learned Judge, the tenancy could not be split up. In that view, the claim for arrears of rent only was decreed, while eviction was refused.
10. The landlord, aggrieved by the trial Court's decree, filed an appeal before the Additional District Judge, who decreed the claim for eviction, as also for future damages for use and occupation till delivery of possession at the rate of Rs. 41 per month, which was the rent agreed. Hence the present appeal by the tenant.
11. It is to be noted that the learned Judges of the Courts below have concurrently found in favour of the landlord on the question of genuine need for residential purposes. On the question of genuine need for business purposes, they have found against him. In the present appeal the question of genuine need either for residential or non-residential purposes will, in my opinion, be findings of fact, which will not be open to a challenge, particularly in the absence of an illegality or misapprehension on the part of the Courts below. Therefore, I propose to consider the further questions on the basis of the findings recorded by the first Court of fact. The learned Judges also found that the landlord had failed to make out a case under Section 4 (a) of the M. P. Accommodation Control Act, 1955. This is also a finding of fact, which is not illegal or vitiated in any manner. Consequently, this finding also has to be accepted and the counsel for either of the parties cannot be permitted to challenge the findings of fact on these three questions.
12. The important question that arises in the present appeal is whether the respondent can claim to evict the appellant under Section 4 (g) or Section 4 (h) of the M. P. Accommodation Control Act, 1955. The learned counsel for the appellant raised another question Co the effect that the rent note, dated, 4-9-1944 provided for one month's time for vacation. This being a contract to the contrary within the meaning of Section 106 of the Transfer of Property Act, the present quit-notice, dated 20-11-1959 (Ex. P-1) is, according to the learned counsel, invalid. Upon a reference to the said notice, which the appellant had received on 21-11-1959, it is clear that the respondent purported to determine the appellant's tenancy on the expiry of 31st December, 1959. That clearly gave more than one month's time to the tenant for vacating the premises. Therefore, the quit notice cannot be said to be not in compliance with the provisions of Section 106 of the Transfer of Property Act, even assuming that there was a contract to the contrary as per the rent note, dated, 4-9-1944. For this reason, I am of opinion that the quit notice is not rendered illegal.
13. Coming to the next question whether the previous judgment would operate as res judicata, it is to be noted that the suit had been filed by the original landlord, Badri Bhola on his allegation of genuine need. After the present respondent was permitted to be impleaded at the appellate stage as a transferee pendente lite, there was no retrial of the question of his genuine need, nor was he allowed to amend the plaint so as to allege his own need. The appeal was dismissed mainly on the material as existed with reference to the need of Badri Bhola. For this reason, I am of opinion that the previous judgment cannot operate as res judicata, and the question of the respondent's need has to be tried in the present suit.
14. Coming to the only important and substantial question raised in the present appeal, it is clear that the premises had been taken by the appellant by a single lease, consisting of residential and non-residential accommodation. Where premises are taken consisting of residential and non-residential accommodation, it is for the parties to adjust their relations. The premises are either residential or non-residential. They cannot be both. Therefore, the position under such circumstances will be that where the parties treat them as undivided premises, the main purpose regarding the nature of the premises will have to be seen. However, under certain circumstances, it is also open to the parties to treat the premises as distinct accommodations meant for residential and non-residential purposes respectively. It will be a question of fact to be decided in each case whether the parties have treated the premises as a single unit or as separate units for distinct purposes respectively.
15. As laid down by Newaskar J. in Dr. Mahanand Shivdeen v. V.R. Ayyar 1959 MPLJ 248, premises are either residential or non-residential. They cannot be both. A landlord, therefore, can evict a tenant under Section 4 (g) of the Act from residential premises, and under Section 4 (h) from non-residential premises. Where the premises are partly residential and partly non-residential and have been let out by a single lease, the question arises whether the landlord can evict the tenant under Section 4 (g) or Section 4 (h) of the M. P. Accommodation Control Act, 1955. In this connection, 1 may observe that different single Bench decisions of this Court have applied the tesis as laid down by the Full Bench case of Dakshinamoorthy v. Thulja Bai, AIR 1952 Mad 413. In Mohammad Safi v. Chunnilal, S. A. No. 151 of 1961 D/-3-8-1961 : 1962 MPLJ (Notes) 73, I had an occasion to consider the several Single Bench decisions of this Court based on the Full Bench case of AIR 1952 Mad 413. On that occasion I followed the unanimous view of this Court as expressed in the several Single Bench decisions, which have been mentioned by me in Mohammad Sails case S. A. No. 151 of 1961 D/- 3-8-1961 : 1962 MPLJ (Notes) 73. I do not propose to burden this judgment by referring to all those cases over again. I may further observe that an application for special leave to appeal to the Supreme Court was made in Mohammad Safi's case S. A. No. 151 of 1961 D/- 3-8-1961 : 1962 MPLJ (Notes) 73. But the matter was not pursued, as Their Lordships did not grant leave to Mohammad Safi to file an appeal in forma pauperis. Consequently, no authoritative pronouncement of Their Lordships of the Supreme Court is available regarding the correctness or otherwise of the view expressed by the Full Bench of the Madras High Court in AIR 1952 Mad 413 (supra). However, in the light of the unanimous view taken by several Single Bench decisions of this Court, I am of opinion that for the present the view as expressed by the Full Bench case of AIR 1952 Mad 413 has to be accepted as correct, according to the consensus of opinion expressed by this Court.
16. The further question, however, arises whether the parties have treated the premises as a single unit, or as two distinct units. Where the parties treat the premises as single unit, it is the main purpose of the lease that will have to be looked into according to the test laid down by the Full Bench case of the Madras High Court. In this connection, I may further state that the requisite tests have been very succinctly stated with clarity by Dixit J. (as he then was) in Bhanwarlal v. Phoolchand, S. A. No. 148 of 1956 D/-15-1-1959 : 1959 MPLJ (Notes) 76. I need not say anything more than what the learned Chief Justice stated in the said case.
17. However, where the parties, despite a single lease, treat the premises as two distinct units meant for distinct purposes respectively, the landlord by such action will be deemed to have split up the tenancy, and will under such circumstances be entitled to evict a tenant from such distinct accommodations on distinct grounds. In the present case, there is clear material to indicate that in the quit notice, as also in the pleadings, the respondent-landlord had treated the leased premises as two distinct units meant for distinct purposes. Upon a reference to the description given in the sale deed, dated, 16-1-1959, it is clear that the premises also are distinct. The non-residential purpose is carried out on the ground floor, while the premises on the second storey are meant for residential purposes. No part of the premises on the ground floor is used for residential purpose, nor any part of the upper storey is use for non-residential purpose. The appellant also had no grievance against the stand taken by the landlord at the time of the trial. Therefore, I am of opinion that the parties have treated the premises as distinct units for separate purposes, although there may be a single lease and the rent of Rs. 41 may be in both the units.
18. The further question arises whether the Court can decree the landlord's claim in such a situation where one of the two needs is established. I am of opinion that the Court as such cannot intervene in the matter, unless the parties themselves have made any bifurcation of the premises. In the present case, there is clear material to show bifurcation of such premises by the parties themselves. Under the circumstances, I am of opinion that the respondent, at any rate, had a right to evict the appellant from residential premises upon proof of his genuine need under Section 4 (g) of the M. P. Accommodation Control Act, 1955. He clearly had no such genuine need in respect of non-residential premises.
19. A further question arises whether the tenancy can be split up under such circumstances. It was observed by a Division Bench presided over by Sinha C.J. (as he then was) and Mudholkar J. (as he then was) in Sakharampant v. Extra-Assistant Commissioner, Jabalpur ILR (1954) Nag 43 : (AIR 1953 Nag 265) that as laid down by Their Lordships of the Privy Council in Harihar Banerji v. Ramsashi Roy 45 Ind App 222 : (AIR 1918 PC 102) a tenancy could not be split up for the purpose of Section 106 of the Transfer of Properly Act, although the Rent Controller could grant permission in respect of a portion of the house which according to him was necessary for the bona fide need of the landlord. In that view, the partial permission granted by Rent Controller by splitting up the tenancy was revoked by the Division Bench.
20. However, another Division Bench--consisting of Hidayatullah C.J. (as he then was) and Kotwal J. in Gokuldas Mayashankar v. Babulal Mithulal, 1955 Nag LJ 716, observed that there was an obvious mistake in printing the Clause 13 (8) of the C. P. and Berar Rent Control Order, 1949, which permitted a splitting up of the tenancy while granting permission to determine the lease. The learned Judges held that the Court could correct an obvious mistake in a misprint of an Act of the legislature. In that view, the Division Bench held that the tenancy could be split up in view of the clear wording of Clause 13 (8) of the C. P. and Berar Rent Control Order, 1949.
21. However, the M. P. Accommodation Control Act, 1955 does not make any provision for splitting up of a tenancy. But, tenancy being a matter of contract, it is always open to the parties to split up of the same. Therefore, although the Court may not be able to split up the tenancy and grant a partial relief, if the parties have done it themselves, the Court would be able to adopt the action, of the parties and grant the necessary relief in that behalf.
22. Under the circumstances, I am unable to accept the view of the trial Judge that no decree at all could be passed in favour of the landlord. Nor do I agree with the view of the learned appellate Judge that the respondent would be entitled to evict the appellant from the entire premises. It would be so in view of the fact that the parties themselves have bifurcated the premises and have treated them as distinct units for residential and non-residential purposes separately, and as such they have themselves split up the tenancy.
23. As a result of the discussion aforesaid, the decree passed by the first appellate Court is modified by upholding the decree with respect to the residential premises vacated on the upper storey or storeys and dismissing his claim in respect of non-residential premises on the ground floor. In view of the divided success, I direct that the parties shall bear their own costs throughout, as incurred. Leave for filing letters Patent Appeal sought by both the parties is refused.