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1991 Supreme(Bom) 444
IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
Dr. E.S. Da Silva, J.
Vinayak Poma Tarkar... Petitioner.
Versus
Jacinto Santa Gorgenio and others... Respondents.
Writ Petition No. 332 of 1991, decided on 16-9-1991.
Advocates appeared :
M.S. Usgaonkar, Senior Advocate with V.P. Thali, for the petitioner.
S.G. Dessai, for the respondent No. 1.
Headnote:Section 23-Eviction petition-Bona fide personal requirement-Tenant pleading the period of five years not elapsed from date of gift in favour of landlord by his brother of share in suit property whereby he became absolute owner-Availability of benefit of eviction under Section 23.
Held-The ownership/co-ownership of the house could not be said to have been acquired by the landlord consequent upon any gift made by his brother but instead the same was by virtue of the death of his parents admitted occurred more than five years ago. It was clear that much before the gift, the landlord was the co-owner of the house and as such its landlord in relation to the petitioner. A co-owner is as much owner of the entire property as any sale owner of the property is therefore a suit by such a co-owner or landlord or ground of reasonable requirement by members of the family was maintainable and there could be no impediment for the landlord to seek for possession of the premises inherited by him in terms of Section 23 of the Act.
Section 23-Suit for eviction-Bona fide requirement-Tenant alleging that landlord wanted to sell suit premises.
Held-It was for the tenant to prove land-lords mala fide by bringing in evidence consistent material to substantiate this point. The tenant obviously had miserably failed to discharge this burden. That by itself disclosed tenants mala fide in the whole affair and clearly revealed that his approach to High Court with the petition amounted no doubt to an intolerable effort to abuse the process of law and unnecessarily protect the litigation which was being dragged for more than ten years.
Section 23-Suit for eviction-Rule of pleadings-Whether attracted Distinction between Section 13 of Bombay Rent Act and Goa Rent Act.
First of all and apart from circumstance that Section 13 of the Bombay Rent Act is no pari materia with Section 23 of the Rent Act, the fact remains that since the Bombay Act provides for a suit to be filed before the Small Causes Court, differently from the Goa Act which prescribes only a summary inquiry in terms of the Mamlatdars Court Act, it is obvious that in the Rent proceedings the law does not enjoin the petitioner to present before the Rent Controller any specific pleading within the meaning of the Civil Procedure Code. Therefore, if strictly speaking only the provisions of the Mamlatdars Court Act are applicable and the provisions of the C.P.C. are not applicable, there is no question of any rule of pleadings to be attracted in the case, so much so there is no such rule which requires that the factual evidence should also be incorporated in the pleadings.
Section 43-Mamlatdars Court Act, 1966, Sections 7 and 9-Provisions of Civil Procedure Code when applicable.
Section 43 of the Rent Act provides that the powers to be exercised by the Controller, Rent Tribunal and the Appellate Court, in terms of the C.P.C. are restricted only to the specific cases enumerated in the aforesaid section. Therefore, from Section 43 itself it is seen that in all other cases the provisions of C.P.C. are not to be applied and that by virtue of Rule 9
(2) the proceedings to be adopted by the Rent Controller are only the ones prescribed in the Mamlatdars Court Act, 1966.
Sections 7 and 9.
See Goa, Daman and Diu Buildings (Lease, Rent and Eviction Control Act, 1968, Section 43.
2. It was the case of the respondent that the property called "Galoum" situated at Mapusa and consisting of a residential house had been rented to the petitioner by his late father sometime in the year 1953. On his death the same was inherited in co-ownership by him and his three brothers who, by Deed dated 26-3-1976 effected the partition of the estate of their father and as a result whereof the suit house was allotted to him and to his brother Leonardo. Subsequently Leonardo gifted his rights to the house in favour of the respondent by Deed dated 31-3-1976 and as such the petitioner became since then the absolute owner of the house.
3. In his application for eviction the respondent expressly set out that he was employed in a gainful occupation in the Arabian Gulf while his wife and children were living in Bombay in a tenanted place at Malad. Whenever he used to come to Goa during holidays at least once a year, the petitioner has no other house of his own to stay either at Mapusa or at any other place in Goa and has to live along with his family at his in-law's place at St.Cruz. The respondent's wife and children desire now to settle in Goa and did not want to reside any more in Bombay. He, therefore, pleaded that genuinely and bona fidely required the house not only for his residence whenever he comes to Goa but also for its permanent occupation by his wife and children who wanted to shift from Bombay for good and live in Goa.
4. The petitioner contested this application namely, on the ground that the house was not required bona fide by the respondent or his family members for their occupation because, in fact, the respondent wanted the same to be vacated by him in order to sell it to his close relations. This was allegedly disclosed by the respondent in 1979 when he was in Goa and came to the suit house where he met the petitioner's father on which occasion he requested him to leave the house for the aforesaid reason.
5. It was first contended by Shri Usgaoncar, learned Counsel for the petitioner, that in view of the proviso to section 23 of the Goa Rent Act (Rent Act for short) it was not open to the respondent to avail of the benefit of evicting the petitioner from the suit premises on the ground of personal requirement for its occupation because the period of five years had not elapsed from the date of the Gift made in his favour by his brother Leonardo of his share in the house whereby he became its absolute owner. However, this submission has been rightly discarded by the Administrative Tribunal because obviously the ownership/co-ownership of the house could not be said to have been acquired by the respondent consequent upon any gift made by Leonardo, namely, the Deed dated 31-3-1976 but instead by virtue of the death of his parents, admittedly occured more than five years ago.
6. It is therefore clear that much before this Deed of 31-3-1976 the respondent was the co-owner of the house and as such its co-landlord in relation to the petitioner. This being the position, there could be no impediment for the respondent to seek for possession of the premises inherited by him in terms of section 23 of the Rent Act. The law in this respect has been settled by the Supreme Court in various pronouncements. In the case of (Sri Ram Pasricha v. Jagannath and others)1, A.I.R. 1976 S.C. 2335, it was held that a co-owner is as much an owner of the entire property as any sole owner of a property is. Therefore, a suit by such a co-owner or landlord on ground of reasonab
