( 1 ) THE petitioner - plaintiff and filed rent case against the respondent - tenant under the provisions of the Hyderabad houses (Rent, Eviction and Lease) Control act, 1954 (hereinafter referred to as the "hyderabad Rent control Act )" in which he claimed for a decree for eviction in respect of " theree khans on the eastern side of the house bearing M. N. 3-13-74 situated at pandariba Aurangabad. Though this application for ejectment was initially rejected by the Rent Controller, Aurangabad, it was finally granted in an appeal against the order of the Rent Controller by the district Judge, Aurangabad, whose decision was canfirmed by this Court in Special Civil Application No. 2213 of 1971 decided on 28 th February 1975. The petitioner then filed a proceeding for execution of the order of ejectment in his favour. Section 34 of the Hyderabad Rent control Act provides that every order under sections 3, 4, 5, 15, 17, 25, 26 and 33 may be executed by the Controller as a decree of the Civil Court. Admittedly, the order sought to be executed was an order under section 15 of the said Act. In the course of the original proceeding the premises were inspected by the Rent Controller and he drew a rough plan which is on record at page 131 In the course of his evidence a positive statement was made by the respondent - tenant with regard to the extent of the suit premises and he had stated as follows :

"in the suit premises, I do the milk business. The shop is in front and in rear I keep buffaloes. The rear portion where buffaloes are kept, there is no residential place. It is open space. "

( 2 ) IN execution proceedings the defendant filed an objection to the effect that the plaintiff did not describe the suit portion of three Khans with reference to any particular boundaries and unless the decree is modified or altered, possession of the premises in the occupation of the defendant could not be handed over. It appears the contention was that the defendant was in occupation of a structure and open space and that there was nothing 10 indicate in the decree that the open space was also the subject matter of the suit. Admittedly some portion of the original structure of three khans is dilapidated and there is a wall with a door beyond which there is some open space. According to the plaintiff, this wall and the door had been constructed by the defendant after the order for possession was made while the defendant claims that the wall has been there since before the premises were taken on lease by him and that he had not constructed the wall or the door. This objection that the decree was unexecutable because of vagueness was inquired into by the Additional rent controller, Aurangabad, who found that in the third khan of the rear portion some unauthorised construction had been made in brick and mud and an old door was fixed in the rear wall facing the open yard of the suit house. He also found that the wall was unauthorised and put up in order to make out the case that open yard at the rear was something distinct from the premises which were token on lease which were taken on lease which were only up to the wall. The Rent Controller had asked the defendant to clarify as to how he was in possession of the open yard, but beyond stating that the open yard was not a part of the suit premises, the defendant was not able to make any statement as to on what terms he was occupying the open yard and, as the order of the Rent Controller shows, he refused to say anything about his status so far as the open space is concerned. The Rent Controller, therefore, found that there was no ambiguity in description, situation and size of the suit premises which included three khans and the adjoining open space on the statement made by the defendant himself. He, therefore, passed the order that the plaintiff should be put in possession of the suit premises consisting of three khans on eastern side along with open space apparent to it by evicting the defendant and the Clerk of the Court was appointed as the Commissioner to execute the decree. Against this judgment the defendant tenant filed an appeal. The learned District judge who decided the appeal seems to have taken the view that the landlord was seeking possession of some portion which was not covered by the suit, this portion being the open space at the rear. The learned Judge found some difficulty in ascertaining where the wall was constructed. According to the learned Judge, the executing Court ought to have determined the portion of three khans on the eastern said of house bearing No. 3 13-74 because possession of that portion was to be delivered to the plaintiff. The learned Judge also found himself unable in his own words "to follow as to where was the open sit of which decree-holders are claiming possession. "

( 3 ) CONSEQUENTLY he held that the plaintiffs were not entitled to possession and if the tenant was in occupation of some more space, then the remedy of the landlord will be file a separate suit in respect of those premises. The learned District judge, therefore, allowed the appeal and set aside the order of the Rent Controller. The matter was remanded to the executing court for ascertaining the three khans on the eastern side let out to the tenant in respect of which the decree was passed and a direction was given that possession of only those premises should be delivered to the plaintiff. It is this order which is now challenged by the plaintiff in this petition.

( 4 ) AT the outset, it is contended by Mr. Agraval appearing on behalf of the landlord that the appeal filed by the tenant against the order of the Rent Controller passed in execution proceedings was not maintainable because the appeal contemplated by section 25 of the Hyderabad Rent Act lies only against an order which is passed under sections 3, 4, 5, 15, 17, 25, 26 and 33 which are referred to in section 34 as the orders which can be executed. The learned Counsel has relied on a decision of Joshi J. in Civil revision Application No. 68 of 1974 decided on 10th October 1974 in which the learned Judge seems to have taken the view that an appeal lies under section 25 only against those orders which determine the rights of the parties one way or the other. The learned Judge was not inclined to construe the words " an order " in section 25 (1) in its wide sense as to mean any order.

( 5 ) MR. Dabir appearing on behalf of the tenant raised an objection to the maintainability of the present petition under article 227 of the Constitution of India because, according to him, the order passed in appeal under section 25 of the Hyderabad Rent Act is made final subject to the revisional jurisdiction of the High Court as provided for in section 26.

( 6 ) FOR diverse reasons, I do not think it necessary to consider in detail these two preliminary objections having heard the matter on merits. As I shall presently show, it is not possible to sustain the order of the learned District Judge and, therefore, the question whether the appeal itself was competent or not becomes academic. Similarly so for as the objection to the maintainability of the present petition is concerned, even the revision that is provided by section 26 of the Hyderabad Rent Control Act lies only to this Court and even within the for corners of section 26, it is possible to set aside the order of the learned District Judge on the ground that he has acted illegally or in any case with material irregularity as contemplated by clause (c) of section 26. I am, therefore, dealing with the merits of the petition itself. What is contended on behalf of the petitioner-plaintiff by Mr. Agrawal is that in the face of the tenants admission that he has under stood the suit premises to mean not only the portion of three khans, a part of which is now in a dilapidated condition, but also the open space appurtaining to it, the learned District Judge was in error in holding that the petitioner was claiming anything more than the premises in respect of which an ejectment order was sought in the proceedings before the Rent Controller.

( 7 ) MR. Dabir, on the other hand, contended that the plaintiff has merely described the suit premises as three khans and if any portion other than these three khans is in occupation of the tenant, he could not be dispossessed of those premises in the execution proceedings. Now, it is apparent from the order of the Rent Controller that the premises are partly in a dilapidated condition and that a wall has come to be constructed in the third khan of the suit premises. The defendant no doubt disowns the responsibility for constructing that wall, but it is difficult to see how in the face of the admission of the tenant that he was in possession of three khans and open space appurtenant thereto which he was using, the location of the wall or the door was in any way material so as to need any further inquiry. It is not the case of the defendant that he had taken any additional portion of the premises belonging to the plaintiff on lease. On the other hand, when the extent of the suit premises was put to him, he has positively admitted that in the front portion there is a shop and in the rear open space he was tethering his cattle. When he was in the witness box he had no difficulty in identifying the suit premises. The open land in which he is now tethering cattle is not claimed by him in any other right, but he has himself treated that land as a part of the suit premises. Merely because the appurtenant land which is open space is not referred to in the plaint, that will not create any infirmity or vagueness in the decree when the defendant is him self fully informed about the extent of the property of which possession was sought in the proceedings taken against him by the landlord. As pointed out by the Rent Controller the defendant was not in a position to claim any different status. There was, therefore, no necessity for any further inquiry to be made nor was it legal for the learned District Judge to restrict the scope of the order for possession only to the area of three khans strictly because even according to the defendant, as already stated, he had under stood the suit premises to mean not only three khans but also the appurtent open space in respect of which no special mention was necessary in the decree. The order of the learned District Judge, therefore, clearly amounts to the exercise of jurisdiction with material irregularity. In any case, he has illegally acted in the exercise of his jurisdiction, which fact is so patent that the error is required to be corrected by this court in the exercise of jurisdiction under article 227 of the constitution of India.

( 8 ) THIS can be done even in the exercise of the provisional jurisdiction under section 26 of the Hyderabad Rent Act. In the result, the order of the learned district Judge is quashed and that of the rent controller restored. Rule absolute. However, in the circumstances of the case, there will be no order as to costs.