Full Judgment Text
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CASE NO.:
Appeal (civil) 5162 of 2002
PETITIONER:
M.M.Bilaney & Anr.
RESPONDENT:
Fali Rustomji Kumana
DATE OF JUDGMENT: 27/09/2005
BENCH:
ARUN KUMAR & A.K. MATHUR
JUDGMENT:
J U D G M E N T
A.K. MATHUR, J.
This appeal is directed against the judgment and order
passed by the learned Single Judge of the High Court of Bombay in
WP No.1247 of 1997 whereby the learned Single Judge has
dismissed the writ petition filed by the appellants.
Brief facts which are necessary for the disposal of this
appeal are as under.
The appellants filed a suit being R. A. E. Suit No.371/3169 of
1976 for eviction against the original defendant, Rustom D.Kumana
(now deceased). In the course of the proceedings, during the life
time of original defendant, the respondent Fali Rustamji Kumana (son
of original defendant) applied that he be joined as a party defendant
on the ground that he was a tenant in respect of the suit premises in
his own right or at least a deemed tenant as on 1.2.1973 under the
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
Initially, the defendant Rustom D.Kumana, the father of the
respondent was sole party defendant in the suit filed by the
appellants/ plaintiffs. That application was allowed and respondent
was added as a party defendant No.2 in that suit. The suit was filed
by the appellants on the ground that the premises were bona fide
required by the appellant No.1 for the residence of his widowed
daughter who was also the sister of appellant No.2. The original
defendant i.e. Rustom D. Kumana filed a written statement on
5.11.1976. Therein he submitted that he was willing to submit to the
orders of the Court. It was pointed out that his wife and son ( the
present respondent) are residing in the suit premises. The defendant
No.2 i.e. the present respondent filed a written statement on 5.4.1979
and contended that he was the tenant in his own right or deemed to
be a tenant as per 1973 amendment to the Bombay Rents, Hotel and
Lodging House Rates Control Act, 1947 ( hereinafter to be referred
to as "the Act"). On 30.9.1980 the appellants moved the Court for a
decree on admission against the original defendant No.1. On
20.6.1981 a decree came to be passed against the original defendant
No.1. The original defendant did not challenge the decree and it
became final. Thereafter, the defendant No.2 filed an appeal against
the said order passed against defendant No.1, the father of
respondent. He also filed suit for declaration of his tenancy right qua
appellants. Meanwhile, the original defendant No.1 expired on
3.10.1984. On 27.5.1985 the appellants executed a gift deed in
favour of one Manavi Pravin Thakkar who accepted the gift of the
premises in question. In gift deed the fact of pending litigation was
mentioned. Pursuant to the execution of the gift deed the respondent
amended the appeal and contended that the appellants had ceased
to be the landlord of the suit premises, hence the appellants could
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not maintain the suit against the respondent nor could they execute
the decree of eviction passed against the original
defendant No.1. By the order dated 9.12.1986 the Appellate Bench
of the Small Causes Court allowed the appeal on the ground that the
decree of eviction passed by the trial court against the tenant was not
legal. Aggrieved against the said order the present appellants
preferred a writ petition before the High Court of Bombay which came
to be registered as Writ Petition No.187 of 1987. By order dated
6.2.1987 the High Court set aside the order of the Appellate Bench
of the Small Causes Court and remanded the matter to be tried by
the trial court. However, the apprehension of the respondent was
allayed by the High Court that if the decree against the original
defendant No.1 was executed, then the respondent would take out
proceedings under Order XXI Rule 97 of the Code of Civil Procedure
and in that context the High Court observed that undertaking be
given by the appellants that they would not execute the decree
obtained against original defendant No.1 till such time that the
present suit against the present respondent and the appeal, if any,
are disposed of. The undertaking to this effect was given by the
appellants. The High Court observed that the appellate Bench of the
Small Causes Court ought not to have considered the appeal filed by
the present respondent against the decree passed against the
original defendant No.1 as the suit was being proceeded against the
defendant No.2. In this background, the matter was sent back to the
trial court. The relevant portion of order dated 6th February, 1987
passed by in the High Court of Judicature at Bombay reads as
under:-
"
Heard both parties. Rule heard forthwith. It
appears that on satisfaction of the existence of the
ground for eviction for bonafide requirement of the
landlord and on admission by original defendant no.
1 to that effect, a decree of eviction as against
defendant no. 1 is passed by the trial court. He
challenged the decree passed against defendant
no. 1. The defendant no. 1 did not challenge the
decree.
The Appeal Court set-aside the decree passed
against defendant no. 1 hence this petition by
plaintiffs landlord.
The only apprehension of defendant no. 2 is that if
the decree against defendant no. 1 is executed he
will have to obstruct it. That apprehension can be
taken care of by recording the undertaking of the
plaintiff that they shall not execute the decree
obtained against defendant no. 1 till such time that
the suit against defendant no. 2 and appeal, if any,
are disposed of. The plaintiff \026petitioner does give
that undertaking before this court.
Moreover, the Appellate Court ought not to
have considered the defendant no. 2’s appeal
against decree passed against defendant no. 1,
While the suit is yet to proceed against
defendant no. 2. Hence impugned order of
Appellate Court is quashed and set-aside. Trial
Court to proceed with suit against defendant no. 2.
Plaintiff shall not execute decree already passed
against defendant no. 1, against no. 2 until disposal
of the suit and appeal if any. With above
directions, the Rule is made partly absolute."
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On 16.7.1987 the respondent amended the written statement
and by that amendment he averred that he has been occupying the
suit premises in his own right as a tenant of the appellants or a
deemed tenant under the 1973 amendment to the Act. It was also
pointed out that he was always ready and willing to pay the rent and
he has been continuously paying the rent to the appellants and the
same has been accepted by the appellants. Then another
amendment was made by the respondent in 1990 to the written
statement and it was contended that he was the only child to the
original defendant No.1 \026 his father, Rustom D.Kumana. The issues
were framed in the suit. On 30.9.1994 the trial court decreed the suit
in favour of the appellants. The trial court held that the respondent
had failed to prove his tenancy right and as such he was a mere
trespasser. Therefore, there was no need to render any finding on
other issues. It was also held that the appellants have proved their
bona fide requirement. It was further held that greater hardship would
be caused to the appellants if the decree of eviction was not passed.
The trial court further held that the suit as filed by the appellants was
maintainable and the appellants were the landlords within the
meaning of the Act for getting possession of the premises under
Section 13(1)(g) of the Act. Relevant portion of order dated
29.9.1994 passed by the Trial Court in RAE Suit No. 571/3169 of
1978 reads as under:
" In view of reasons which re-discussed above, I
came to the conclusion that the defendant No. 2
has failed to prove that he has any independent
tenancy right in the suit premises."
Aggrieved against this order the respondent preferred an
appeal before the Appellate Bench of the Small Causes Court. The
Appellate Bench allowed the appeal of the respondent by order dated
10.9.1996 on the ground that the appellants had ceased to be the
owners after execution of the gift deed in 1985 and as such were not
landlords entitled to seek eviction under Section 13(1)(g) of the Act.
However, at the same time, the Appellate Bench held that the
respondent was not a tenant. It was observed in para 64 of the order
dated 10.9.1996 by the Appellate Court in Appeal No. 409/1994 in
RAE Suit No. 571/3169 of 1978 which reads as under:
"The question as to whether the appellant has been
able to prove his independent entitlement to the suit
premises save and except the son of the tenant
has also been dealt with above. Although he has
not been able to do so, but the above features need
to be recalled. For the sake of record points 6 and
7 are answered accordingly."
Aggrieved against this order, a writ petition was filed by the
appellants and in this background, the High Court after considering
the matters dismissed the writ petition holding that the appellants
having gifted the premises in question therefore they ceased to be
landlords and as such the decree of eviction cannot be passed in
favour of the appellants. Aggrieved against this order passed by the
learned Single Judge of the High Court of Bombay, the present
appeal has been filed on grant of special leave.
In this background, the short question which falls for our
determination is what is the effect of the finding given by the courts
below that the respondent - Fali Rustomji Kumana who was
defendant No.2 was not a tenant and in that case, whether he could
defeat the suit filed by the appellants after they have gifted away the
suit premises to a third person as they ceased to be landlords.
It is the admitted position that Rustom D. Kumana was
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the original tenant and the suit was filed by the plaintiffs and in that
suit, he did not contest and a decree of eviction was passed.
Therefore, so far as the tenancy rights of the original
tenant/defendant no. 1 were concerned, the same came to an end.
But the son who was residing in the premises moved an application
and sought to be impleaded as a respondent and he claimed that he
was a tenant in the premises in question. Therefore, the question
came up for determination whether he was a tenant or not. The trial
court and the first appellate court as well as the High Court in writ
petition did not disturb this finding that the respondent- Fali
Reustomji Kumana was not a tenant in the premises in question. In
fact, when the tenancy came into existence the respondent was 9
years old. All the courts below have categorically found that there
was no subsisting tenancy between the appellants and the
respondent- Fali Rustomji Kumana. High Court did not dispute this
fact however proceeded to decide the matter on the basis that
appellants ceased to be the landlord because of gift deed. If it is
accepted that he was not a tenant, then can a decree of eviction be
passed against a trespasser challenging the ownership of the
appellants because the premises in the meanwhile was gifted out by
them to a third party.
It was contended by learned counsel for the appellants
that once the tenancy of the original landlord had been determined
and the respondent has not been found to be a tenant, there was no
relationship of landlord and tenant between the respondent and the
original landlords, then the respondent is rank trespasser and if he is
rank trespasser he cannot claim tenancy right against another person
who has stepped into the shoes of the original landlord. In the present
case, in fact the original tenant’s son \026 the present respondent was
only residing in the premises through his father as his father was a
tenant and the tenancy having come to an end, his position
remained as a trespasser, because finding was given by all the
courts below that there was no tenancy subsisting between the
appellants and the respondent- Fali Rustomji Kumana. The tenancy
was not hereditary. Once the decree of eviction was passed against
his father and father expired in 1984 he has become trespasser.
Secondly a declaration has been given against him that there exists
no relationship of landlord and tenant.
Learned counsel for the appellants also submitted that an
extended meaning should be given to Section 14 of the Act. Learned
counsel also pressed into service some of the provisions of the gift
deed to show that despite the fact that the appellants have gifted
away the premises in question to the new landlord, the respondent
has reserved right for himself to be a deemed tenant in the premises.
Learned counsel in this connection referred to a decision of this
Court in the case of P.V.Papanna & Ors. v. K.Padmanabhaiah
reported in AIR 1994 SC 1577. Another decision of the High Court of
Bombay in the case of Homi Jamshedji Khansaheb & Ors. v.
Chandrakant Atmaram Lamage & Ors. reported in 1984 Mh.L.J. 719
was also cited.
Against this, learned counsel for the respondent seriously
contended that when the landlord has gifted away the premises, how
can this suit be maintainable as he has ceased to be the landlord.
Therefore, he is not entitled to a decree for eviction. In this
connection learned counsel for the respondent referred to a decision
of this Court in the case of M.M.Quasim v. Manohar Lal Sharma &
Ors. reported in AIR 1981 SC 1113.
We have considered the rival submissions of the parties.
After weighing both the situations we are of opinion that once the
respondent has been declared as trespasser by the Courts below
because there was no subsisting tenancy with the original landlord
then there was no need of going into the matter of gift of the
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premises in question. In fact, at the time when the suit was filed the
appellants were the owner of the premises in question and the decree
of eviction was passed in their favour as the father of the respondent,
the original defendant No.1 did not contest the matter and did not
prefer appeal. But respondent preferred the appeal which was
allowed by appellate court. Aggrieved against that oder the
appellants filed writ petition. The High Court affirmed the decree of
eviction qua the appellants and Rustom D. Kumanna, the original
defendant No.1. But since the respondent was also impleaded as a
party and the case had not gone for trial the High Court remanded
the matter to the trial court to decide the question whether Fali
Rustomji Kumana, the present respondent was a tenant or not.
When the High Court remanded the matter to the trial court, the trial
court recorded a finding that there was no relationship of landlord
and tenant between the appellants and the respondent and that order
was affirmed by the appellate court and the High Court did not differ
with finding in second round. Once the decree of eviction has already
been granted against the original tenant and the finding has been
recorded that the respondent is not a tenant then gifting away of the
property by the original landlords to a third party becomes secondary
issue. Since on remand by High Court the trial court has determined
his right qua the appellants and same being affirmed by the appellate
court and the High Court in second round, we are of opinion that the
question of gift which was raised before Appellate court and the
High Court was a secondary issue. If there was no relationship
between the landlords and the tenant then what is the right of the
tenant to challenge the ownership of the appellants? More so in
peculiar facts of this case that in same suit a decree of eviction has
been passed against his father and it has become final because his
father did not challenge the same and subsequently he died in 1984.
Then in same suit a contrary decree was passed in favour of son who
in these very proceedings was found to be not tenant. In peculiar
facts of this case, we cannot sustain inconsistent decrees in same
suit. It would be mockery of law. As a general proposition of law if
one has ceased to be landlord how can he seek a decree of eviction
on ground of personal bona fide need is correct. But in peculiar facts
of this case, we cannot invoke this proposition when son in same suit
was not found to be tenant and father has been evicted.
Thus having taken the above view of the matter we need
not go into the extended meaning of Section 14 of the Act or whether
the respondent was a licensee or whether a licensee can have a right
to continue in the premises by virtue of 1973 amendment to the Act.
Once it is held that there was no relationship of landlord and tenant
between the appellants and the respondent, all other questions are of
secondary issue. The primary issue was whether respondent can be
deemed as a tenant or not. Once it is found that the respondent is not
a tenant, then he has no right to challenge ownership of the
appellants as the appellants were already armed with a decree for
eviction against the original tenant \026 Rustom D. Kumana (father of
respondent).
This is a sad commentary on the tenant -landlord relationship.
The premises in question was leased out to the father of the
respondent in 1939 and the suit was filed for eviction in 1976. But it
has not seen the successful end till this date. For the last 30 years
the parties have been litigating. More than one generation has
passed but still the matter has been locked in the courts. Therefore,
in order to put to an end to this litigation specially when the courts
below have already taken a view that there is no subsisting
tenancy between the appellants and the respondent, we cannot deny
the legitimate right of landlord or his successor to the possession of
these premises. The respondent is in possession of the premises
even after the death of his father in 1984, he shall pay a sum of
Rs.50,000/- as compensation to the appellants/ their successor for
use and occupation of the premises in question
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In view of the above discussions, we are of opinion the
view taken by learned Single Judge of the High Court of Bombay
cannot be sustained. We allow this appeal, set aside the order of the
learned Single Judge of the High Court and hold that respondent \026
Fali Rustomji Kumana was not a tenant of the landlords and he was a
trespasser and as such, decree of eviction is granted against the
respondent \026 Fali Rustomji Kumana. The respondent is granted six
months time to vacate the premises in question as he has been
occupying the premises in question for a long time. In case, the
respondent fails to vacate the premises in question on the expiry of
the period of six months from today, then the appellants/ their
successor shall be at liberty to get him evicted from the premises in
question by executing this decree. No order as to costs.