(1) THIS revision petition has been referred to a Divisior Bench since the learned Single Judge who heard it in the first instance was of the opinion that it involves questions of considerable public importance.

(2) THE petitioner took on lease the land R. S. No. 104, measuring 5 acres and 3 guntas, situate in Thimmasagara Village which is now part of Hubli City, on 19-1-1948, under a registered lease deed on an annual rent of Rs. 1,505, the period of lease being 41 years, from the owners respondents 1 and 2. Respondent 3 is alleged to be the sub-lessee under the petitioner. The respondents filed an eviction petition under S. 21 Cl (1) sub- clauses (b),, (c)and (f) of the Mysore Rent Control Act, 1961 (hereinafter referred to as the Act). The present petitioner contended, among other things, that the application is not maintainable for the reason that the suit property was an agricultural land and that the Court had no jurisdiction to entertain the application. The learned Addl Munsiff, Hubli, negatived his contention and held that the Court had jurisdiction to entertain the application. It is against this order that the revision petition has been filed.

(3) IN the lease deed Ext. P1 the suit property is described as garden land. It also recites that there is a house standing on the suit property. The purpose for which the lease is taken is stated to be for the storage of fuel and timber. The lease deed also recites that the tenant will apply for permission to use the property for a non-agricultural purpose and that since the property is at the time of the lease being used for agricultural purposes the assessment of Rs. 5-7-6 should continue to be paid by the landlords and that if the assessment is increased, such excess as well as the municipal Taxes would be paid by the tenants thereafter. It also provides that on the expiry of the term of the lease, the tenant would vacate the land as well as the house standing thereon and restore possession of the same tc the landlords in the same condition as the property was on the date of the lease. Another term of the lease is that the tenant cannot cu any cf the trees standing on the land except the one mango tree in the centre.

(4) IN Subhadra v. Narsaji Chenaji, AIR 1966 SC 808 [LQ/SC/1965/300] . the question was as to the material date for ascertaining whether the suit property is premises for the purpose of fixation of standard rent under the Bombay Rents (Hotel and Lodging House Rates) Control Act, 1947 (Act 57 of 1947). It was held that the material date for ascetaining whether the plot is premises for the purpose of S. 6 is the date of letting and not the date on which the application for fixation of standard rent is made by the tenant or the landlord. Since the plot was assessed for agricultural purposes on the date of the lease it was held that it could not be regarded as premises for the purpose of application of Part II of the Act, and it was observed as follows : It is common ground that till Nove, 11, 1949, the plot was assessed for agricultural purposes under the Bombay Land Revenue Code. In the year 1947, the plot was undoubtedly lying fallow, but on that account, the user of the land cannot be deemed to be altered. User of the land could only be altered by the order of the Collector granted under S 65 of the Bombay Land Revenue Code. S. 11 of the Bombay act 57 of 1947 enables a competent Court upon application made to it for that purpose to fix standard rent of any premises. But S. 11 is in part II cf the Act and by S. 6 Cl (1), it provided that in areas specified in Sch. I, Part II applies to premises let for residence, education, business, trade or storage. There is no dispute that Part II applied to the area in which the plot is situate; but before the appellant could maintain an application for fixation of standard rent under S. 11, she had to establish that the plot of land leased was premises within the meaning of S. 5 (8) of the Act and that it was let for residence, education, business trade or storage. For the purpose of this appeal, it is unnecessary to consider whether the plot was let for residence, education, business, trade or storage. The expression premises is defined by s. 5 (8) and the material part of the definition is :

" In this Act, unless there is anything repugnant to the subject or context- (8) premises means- (a) any land not being used for agricultural purposes, (b) any building or part of a building let separately (other than a farm building) including- (i) the garden, grounds, garages and out-houses if any, appurtenant to such building or part of a building, (ii) any furniture supplied by the landlord for use in such building or part of a building (iii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof. . . . . "

Reading S. 5, sub-cl (8) with S. 6 (1), it is manifest that Part II of the act can apply in areas specified in Sch. II to lands (not being used for agricultural purposes) let for residence, education, business, trade or storage. The material date for ascertaining whether the plot is premises for purpose of S. 6 is the date of letting and not the date on which the application for fixation of standard rent is made by the tenant or the landlord. We agree with the High Court that the plot in dispute could not be regarded as premises inviting the application 01 part II of the Act. The application filed by the appellant under S. 11 for fixation of standard rent was, therefore, not maintainable. " the above observations show that what was considered material was that the appellant in that case had to establish that the plot of land leased was premises within the meaning of S. 5 Cl (8) of the Bombay Act and that it was unnecessary to consider whether the plot was let for residence. education, business, trade or storage.

(5) IN S. 3 Cl (n) of the Act, premises has been defined as follows:

" (n) premises menus- (i) a building as defined in Clause (a); (ii) any land not used for agricultural purposes; "

Under S. 3 Cl (a) building has been defined as follows:" (a) building means any building or hut or part of a building or hut other than a farm house, let or to be let separately for residential or non-residential purposes and includes- (i) the garden, grounds and out-houses, if any, appurtenant to such building, hut or part of such building or hut and let or to be let along with such building or hut or part of building or hut; (ii) any furniture supplied by the landlord for the use in such building or hut or part of a building or hut; (iii) any fittings affixed to such buiding or part of a building for the more beneficial enjoyment thereof but does not include a room or other accommodation in a hotel or a lodging house; "

(6) IT is thus clear that the definition of premises in the Act is similar to the definition in the Bombay Act. What is material is that under both the Acts any land not used for agricultural purposes is excluded from the definition of the word premises. It is also clear that a farm building is excluded from the definition of the word building and therefore of premises in the Bombay Act and of a farm house in the Act. Since the property in question was used only for agriculthral purposes on the date of the lease, it follows that in the present case also the Act excludes it from its operation.

(7) BUT it is urged on behalf of the respondents 1 and 2 by Mr. Sun daraswamy, that there is a judgment of the same learned Judge, Shah, J, in Vasudv Dhanji Bhai Modi v. Rajabhai Abdul Rehman, taking a contrary view, namely, that the material date for the determination of the applicability of S. 6 (1) of the Bombay Rent Act is the date of the application asking for relief under the Bombay Rent Act and not the date of the lease. He has relied on the decision of this Court in New Krishna bhavan v. Commercial Tax Officer and the Full Bench decision in a. J. Aramha. v. Mysore State Road Transport Corpn for the proposition that if there is conflict between two decisions of the Supreme Court, it is the later decision which is binding on this Court.

(8) IN Vasudev Dhanjibhai Modis cose, AIR. 1970 SC. 1475 [LQ/SC/1970/148] an objection was raised in execution that the Court which passed the decree for eviction under the bombay Rents (Hotel and Lodging House Rates) Control Act, 1947 (Act 57 of 1q4|7) had no jurisdiction to entertain the suit since the suit premises was not governed by that Act. It was held that where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial, or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as tc the validity of the decree even on the ground of absence of jurisdiction. The High Court had held that the land leased was at the date of the lease used for agricultural purposes and that it so appeared on an investigation of the terms of the lease and other relevant evidence and therefore came to the conclusion that the decree was without jurisdiction and on that account a nullity. The order passed by the High Court was set aside. While dealing with the applicability of the Bombay Act it was observed as follows :

" The expression premises in S. 5 (8) of the Bombay Rents Hotel and Lodging House Rates (Control) Act (57 of 1947) does not include premises used for agricultural purposes. By S. 6 of that Act the provisions of part II which relate to conditions in which orders in ejectment may be made against tenants and other related matters apply to premises let for education, business trade or storage. It is plain that the Court exercising power under the Bombay Rents Hotel and Lodging house Rates (Control) Act, 1947, has no jurisdiction to entertain a suit for possession of land used for agricultural purposes. Again in ascertaining whether the land demised is used for agricultural purposes the crucial date is the date of which the right conferred by the act is sought to be exercised. Subhadra v. Narsaji Chenaji Marwadi. "

According to the above observations the crucial date to determine whether the land leased is used for agricultural purposes is the date on which the right conferred by the Act is sought to be exercised. But Mr. Swamy, has relied on the following observations in a later portion of the same judgment which reads as follows :" In the present case the question whether the Court of Small causes had jurisdiction to entertain the suit against Munshi depended upon the interpretation of the terms of the agreement of lease, and the user to which the land was put at the date cf the grant of the lease. "

His contention is that it was the intention of the learned Judges who decided the case to affirm the principles laid down in the earlier decision, namely, Subhadras case (1), that it was not their intention to take a different view and that it was by mistake that it has been observed in the earlier part of the judgment that the crucial date is the date on which the right conferred by the Act is sought to be exercised. There is much force in this contention. Mr. Sundaraswamy relied on the un-reported decision of the Bombay High Court in Manjulabai v. Sitaram Gopal gokhale in which it has been observed that Shah, J, who is the author of the earlier judgment itself has authoritatively declared in the later decision as to what he had intended earlier in his own judgment that the crucial date to be considered for the purposes of the Bombay Act was the date on which the right conferred by the Act is sought to be exercised. But the learned Judges do not appear to have noticed the observations in the later part of the same judgment in Vasudev Dhanjis case (2)referred to above. Hence, it is difficult to come to the conclusion that it was the intention of the learned Judges who decided Vasudev Dhanjibhais case (2)to over-rule the decision in Subhadras case (1).

(9) MR. Swamy further contended that even if it is so to be taken that the decision in Vasudev Dhanjibhai Modis case (2) takes a contrary view as to the date which is material for determining the nature of the land for the application of the Act, even then it is the statement of the law in the earlier decision in Subhadras case (1) which is binding on this court. According to him the earlier decision was decided by four learned judges and the later decision in Vasudev Dhanjibhais case (2) decided by three learned Judges cannot be deemed to have over-ruled the earlier decision of the larger Bench. He has relied on the decision of the Supreme court in Muttulal v. Radhe Lal1974 UB. (SC.) 348. . In that decision it has been observed as follows : " While considering the conflict between the two decisions of the Supreme Court, we must prefer to follow the decision of the larger bench. " it has no doubt been also observed that they prefer to follow the decision of the larger Bench in that case because they were in agreement with it on principle also. But the observation that they must prefer to follow the decision of the larger Bench is none the less binding on this Court. This question did not arise for decision in the two decisions of this Court referred to above. Mr. Swamy has produced the certified copy of the judgment of the Supreme Court in Subhadras case (1) which shows that the decision in that case was rendered by four learned Judges, namely, K. N. Wanchoo, J, k. C. Das Gupta, J, J. C. Shah, J and Raghubar Dayal, J. Hence, we are of the opinion that the statement of the law by the larger Bench in Subhadras case (1) is binding on us and we have to follow the same in in preference to the decision of the smaller Bench in Vasudevs case (2). The unreported decision of the Supreme Court in Krlshnapasuba Rao v. Dattraya Krishnaji CA. 700/64 dt. 6-10-65 SC. by a Bench of three learned Judges, which is relied on by Mr. Swamy, also supports the view taken in Subhadras cose (1). That was a suit by a landlord for eviction under S. 13 Cl (1) sub-cl (i) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bombay Act 57 of 1947). Under the terms of the lease, it was held, the subject matter of letting was an open land and the rent was payable in respect of the open land only and not in respect of structures raised by the tenants. The building on the land was constructed by the tenant at his own cost. The building belonged to the tenant and was not the subject matter of the letting. The land only wss the subject matter of the letting The contention of the tenant that the suit premises are building and ground appurtenant to the building and are not land within the purview of S. 13 Cl (1) sub-cl (i) and consequently the landlord cannot claim eviction under S. 13 Cl (l) sub-cl (i) was rejected. It was held that the premises are land within the meaning cf Sec. 13 Cl (1) subel (i)and that the landllord was entitled to recovery of the suit land. In the present case also the terms of the lease deed show that the subject matter of the lease was the land which was being used on the date of the lease for agricultural purposes only. According to the terms of the lease deed the land has to be restored to the landlords after the expiry of the lease period in the same condition as it was on the date of the lease. Hence the fact that the tenant had put the land to a non-agricultural use subsequent to the commencement of the lease will not bring the suit land within the definition of the term premises as defined in the Act.

(10) IT is further urged by Mr. Swamy that the decision of this Court in R. C. Hiremath v. Gangawwa CRP. 1759/69 dt. 6-8-70. operates as a bar to the present proceedings under s. 45 of the Mysore Rent Control Act. The present petitioner had filed an application for fixation of standard rent under S. 11 of the Bombay Rent Act alleging that the agreed rent of Rs. 1,505 per annum was excessive and that Rs. 750 per annum is the reasonable rent. That prayer was rejected by the trial Court which fixed Rs. 1,505, the agreed rent, as the standard rent. The respondents had also filed an original suit for the recovery of arrears of rent. The trial Court tried both the suit as well as the application under S. 11 of the Bombay Rents Act. The suit was decreed on the basis of the annual rent of Rs. 1,505 fixed on the application of the present petitioner. The present petitioner filed appeals both against the order on his application u/s. 11 as well as against the decree in the suit filed by the respondents. The lower appellate Court dismissed both the appeals. Thereupon, the present petitioner filed CRP. 1759 of 1969 as well as the RSA. 1112 of 1969.

(11) IN this Court the present petitioner urged in CRP. 1759 of 1969 that the Court had no jurisdiction to fix the standard rent since the suit property was not premises under the definition of the term under the bombay Rent Act. Reliance was placed by him on Subhadra v. Narsaji chenaji. This Court accepted his contention and held that the Bombay Rents Act is not applicable to the suit property, allowed the Civil revision Petition and set aside the orders of both the lower Courts on the application u|s. 11 and dismissed the said application. Since the only contention urged by the present petitioner in RSA. 1112 of 1969 was that deduction had not been given by the respondents to the amounts paid by the present petitioner, this Court directed that deduction must be given to the amounts paid by the present petitioner. It, otherwise confirmed the decree of the lower Court in the regular second appeal.

(12) THE contention on behalf of the present petitioner is that the finding in CRP. 1759 of 1969 that the suit property is not premises under the Bombay Act, operates as a bar under S 45 of the Mysore Rent Control act to the present proceedings. Since the petitioner has succeeded on the first point it is not necessary to consider this question. Admittedly, the suit property was being used for agricultural purposes only on the date of the lease. It is only about a year after the date of the lease that it was converted to user for non-agricultural purposes. Hence, the contention of the petitioner that the eviction petition filed by the present respondents is not maintainable has to be upheld.

(13) THIS revision petition is therefore allowed. The order of the lower Court is set aside and the eviction petition is dismissed. Parties shall bear their own costs in this revision petition.