Judgment

S.B. Majmudar, J.-In this Appeal by way of special leave, the heirs of original Plaintiff No. 1 and the remaining Plaintiff Nos. 2 to 8, have brought in challenge the judgment and order rendered by the High Court of Bombay dismissing their Second Appeal and confirming the decree of dismissal of their suit by the Trial Court and as confirmed by the First Appellate Court. In order to highlight the grievances of the appellants in the present proceedings, it will be necessary to note a few relevant introductory facts.

Background Facts :

2. We shall refer to the appellants as Plaintiffs and the respondents as Defendants for the sake of convenience in the later part of this judgment. The Plaintiffs filed a Regular Civil Suit No. 246 of 1970 in the Court of the 4th Joint Civil Judge, Junior Division, Nagpur for possession of the suit property, which, according to them, consisted of three rooms in their house situated at Circle No. 13/19, Tandepeth in Nagpur city. Their case was that four brothers along with Ramkrish­na, s/o. Suryabhan and one Shankar, s/o. Sorna mortgaged the house including the suit three rooms with one Maroti Laxman and Narayan Vithobaji, who formed a joint Hindu family along with other members. The original mortgagees filed a Civil Suit No. 19-A of 1935 for recov­ering the mortgage debt by sale of suit house and for final decree for sale. The Plaintiffs’ further case is that on 4th April, 1938 the mortgaged house was auctioned and it was purchased by Narayan, one of the decree holders. On confirmation of the sale, a sale-certificate (Exh. 32) was issued in favour of Narayan. The sale-certificate dated 6th July, 1938 (Exh. 32) is at page 49 of the paper book. Narayan is stated to have taken possession of the suit house through Court on 22nd December, 1938. It is then alleged that Narayan had rented out a portion of the said house to Suryabhan in 1939 on a monthly rent of Rs. 9/-. The portion of the house which was stated to have been rented out to Suryabhan, however, was not described in the schedule to the plaint, though it was stated to be described as such. According to the plaintiffs’, Narayan’s name was mutated in the municipal records and it was he who was paying the taxes and exercising all the rights of ownership. It was alleged the Suryabhan failed to pay the rent and hence, Narayan obtained permission of the House Rent Controller on 20.7.1959 (Rev. Case No. 688/A-71(2) of 58-59 under the provisions of the Central Provinces and Berar Regulation of Letting of Accommodation Act, 1946 (hereinafter referred to as ‘the Act’) read with Central Provinces and Berar Letting of Housing and Rent Control Order, 1949. It may be stated at this juncture that earlier though the Rent Con­troller took the view that Suryabhan was tenant of Narayan, applica­tion for permission to evict him was rejected in the first instance. However, the Addl. Collector, Nagpur in appeal while agreeing with the view of the Rent Controller that there was a relationship of landlord and tenant between Narayan and Suryabhan, allowed the appeal and granted permission to Narayan to terminated the tenancy of Suryabhan by his decision dated 29th April, 1960. This can be called the first set of proceedings. On the basis of the aforesaid permission, Narayan issued notice of termination of tenancy and filed a Civil Suit No. 120 of 1966 for possession of the suit property consisting of three rooms. The filing of the said suit may be treated as second set of proceed­ings.

3. In the second set of proceedings, though initially the Trial Court decreed the suit, in Civil Appeal 162 of 1967, the suit was dismissed on the ground that there was no relationship of landlord and tenant between Narayan and Suryabhan. The said appellate decision was ren­dered by the 4th Extra Assistant Judge on 16th August, 1969. Thereaf­ter, the plaintiffs have filed the Suit No. 246 of 1970 from which the present proceedings arise on the strength of title for possession,