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1984 Supreme(Bom) 227
IN THE HIGH COURT OF BOMBAY
Sharad Manohar, J.
Ramkali Rambharaose Katiyar (Smt.) others.... Appellants.
Versus
Ramdulare Shivprasad Katiyar by his heirs.... Respondents.
Second Appeal No. 66 of 1978, decided on 6-8-1984.
Advocates appeared :
H.A. Solkar M.H. Solkar, for appellants.
A.C. Agarwal with Smt. Anita Agarwal, for respondents.
A tenant who purchases the premises from the landlord on the basis of his tenancy becomes a constructive trustee for the original tenant and is entitled to be reimbursed of the purchase price paid to the landlord.
Headnote:
TENANCY RIGHTS - TRANSFER OF RENT RECEIPT - LIMITATION - CONSTRUCTIVE TRUST - PURCHASE OF PREMISES BY TENANT - REIMBURSEMENT OF PURCHASE PRICE.
Fact of the Case:
Plaintiffs, heirs of Rambharose, filed a suit against the defendant, Rambharose's brother, seeking possession of a shop and residential premises, claiming that the defendant was their agent or trustee and had unlawfully occupied the premises. The defendant claimed joint ownership of the shop and denied any agency or trusteeship.
Finding of the Court:
The court found that the defendant had failed to prove his claim of joint ownership of the shop and that he had occupied the premises without the consent of the plaintiffs. The court also found that the transfer of the rent receipt by the landlord to the defendant was illegal and that the plaintiffs were entitled to possession of the premises.
Issues: 1. Whether the defendant was the plaintiffs' agent or trustee in possession of the shop and residential premises? 2. Whether the plaintiffs were entitled to possession of the premises? 3. Whether the plaintiffs were entitled to accounts as prayed for in the plaint? 4. Whether the suit was barred by limitation?
Ratio Decidendi: 1. The court held that the defendant had failed to prove his claim of joint ownership of the shop and that he had occupied the premises without the consent of the plaintiffs. 2. The court held that the plaintiffs were entitled to possession of the premises as they were the legal tenants and the transfer of the rent receipt by the landlord to the defendant was illegal. 3. The court held that the plaintiffs' suit for accounts was barred by limitation as it was filed more than 3 years after the cause of action arose. 4. The court held that the suit for possession of the premises was not barred by limitation as the defendant had denied the plaintiffs' title only when he got the rent receipt transferred in his name in 1958.
Final Decision: The court allowed the appeal, set aside the decrees of the lower courts, and decreed the plaintiffs' suit for possession of the shop and residential premises. The court dismissed the plaintiffs' suit for accounts.
2. Normally, facts can be and are stated in a judgement in Second Appeal on the basis of the facts that are either found or admitted. But in the instant case, many of the facts have been properly adjudicated upon at all and there is a dispute about practically every factual position. Hence, I will set out the facts by referring, mostly to the contentions of each of the parties, the plaintiffs and the defendant, in their pleadings.
(a) The four appellants, who are the original plaintiffs (who will be referred to hereinafter as the "plaintiffs") are the heirs of one Rambharose Katiyar. Plaintiff No. 1 is the widow and plaintiff Nos. 2 to 4 are the sons of said Rambharose. Admittedly, Rambharose and his family belonged to Sikandarpur, Taluka Shahabad District Hardol in Uttar Pradesh. Rambharose came to Kalyan in or about the year 1938. The fact that he came in the year 1938 is not in dispute. There is some dispute on the question as to whether even the respondent (who will be referred to hereinafter as the "defendant") had come along with him to Kalyan. After coming to Kalyan, Rambharose started a Pan Beedi Shop in a Gala in House No. 61 of Lane No. 51. This shop was started by him initially in partnership with one Tikaram. But so far as the premises were concerned, the premises were taken on rent in the name of Rambharose only. Tikaram has never claimed any right in the tenancy in respect of the said Gala in House No. 61.
(b) Thereafter some time in the year 1942 or so, Tikaram withdrew himself from the partnership and the contention of the plaintiffs has been that from the year 1942 onwards Rambharose had been carrying on the Pan Beedi business in the said shop as the sole proprietor of the same and that the said position continued even till Rambharose left Kalyan in the year 1955. The plaintiff's case further is that some time after starting the Pan Beedi Shop in House No. 61, Lane No. 51, Rambharose got another residential room. Room No. 31, in another House No. 53 in the same Lane No. 51. The landlord of House No. 61 was one Ganpat Kumbhar, whereas the landlord of the residential premises in House No. 53 was one Yashwant Shankarrao Zunjarrao at the time of the commencement of the tenant. There is no dispute that the present landlord of the said room. Room No. 33, is one Ghanshyan Dashrath Zunjarrao. The fact that Rambharose has been conducting the shop in said House No. 61 and that he was residing in said Room No. 31 in House No. 53 and that this position continued at least till the year 1955 is not in dispute; the only bone of contention has been as to whether even the defendant was carrying on the business in said Pan Beedi shop along with Rambharose and as to whether he was also residing in said Room No. 31 along with him.
(c) The plaintiff's case is that from the year 1942 till about February 1955, Rambharose had been personally looking after the management of the shop in House No. 61. Thereafter he got afflicted by cancer. He, therefore, left for the native place in U.P. Even his wife and children went along with him. Rambharose died at Sikandarpur in U.P. on 14-5-1955.
The plaintiff's case further is that a few years after Rambharose came to Kalyan the defendant who is his brother came there with a view to find some occupation. He started doing his own business in Kalyan but used to live with Rambharose and sometimes used to look even after Rambharose's shop. When Rambharose went to his native place along with his family, the defendant was requested to look after his business. After his death plaintiff No. 1 requested to look after his b
