Important point
In an eviction suit on bonafide need which was decreed against original defendant impleaded as tenant, once respondent was declared to be trespasser by Courts below, suit could not be defeated on ground that plaintiff appellant ceased to be owner after executing a gift deed in favour of third party.

Headnote:Bombay Rents, Hotel and Lodging House Rates Control Act, 1947—Sections 13(1)(g) and 14—Eviction suit on ground of bonafide need against father of respondent—Respondent got himself impleaded in suit on plea that he had independent tenancy right in suit property—Eviction decree against father of respondent as he did not contest the claim—Respondent challenged eviction decree against his father and 1st appellate Court set aside the decree—High Court set aside order of lower appellate Court in writ and remanded the matter—Meanwhile defendant No. 1, father of respondent died on 3-10-1984—Appellants executed gift deed in respect of suit property on 27-5-1985—Trial Court holding that respondent was not a tenant still dismissed suit on a view that plaintiff ceased to be the owner of property after execution of gift deed—Decree was upheld in appeal and High Court dismissed the writ—Appeal—Question for consideration was whether respondent, who had been held not to be a tenant in suit premises, could defeat the suit filed by appellants after they had gifted away the suit premises to third party as they ceased to be landlords? No.
       Held : It is the admitted position that Rustom D. Kumana was 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. (Para 8)
       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. (Para 9)
       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 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 order the appellants filed writ petition. The High Court affirmed the decree of eviction qua the appellants and Rustom D. Kumana, 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. (Para 12)

Judgment

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.

2. Brief facts which are necessary for the disposal of this appeal are as under.

3. 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 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

Click Here to Read the rest of this document

2005 Supreme(SC) 1250

Cases Referred (2)

Login now and unlock premium legal research