Shrikrishna Bhau Parab and others vs Roshan S. Boyce

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1994 Supreme(Bom) 531

IN THE HIGH COURT OF BOMBAY
R.G. Vaidyanatha, J.
Shrikrishna Bhau Parab others ..... Appellants.
Versus
Dr. Mrs. Roshan S. Boyce .... Respondent.
First Appeal No. 278 of 1994, decided on 23-9-1994.
Advocates appeared :
S.C. Dharmadhikari with D.A. Nalwade, for appellants.
V.T. Walawalkar with A.V. Datar, for respondent.

Headnote:Section 6 (iv) (d), Schedule-Property-Valuation of.
       Its mode-One of basis rent it fetches then multiplied by 150.
       BOMBAY RENTS, HOTEL AND LODGING HOUSE RATES CONTROL ACT, 1947
       Section 5(4)-Licensee-Right of-Under this section servant occupant of premises Dot protected licensee-Civil Court empowered to decide the matter -Presidency Small Causes Court Act, 1882 Section 41 (1).
       Section 21 (1)-Valuation of property - Objections as to.
       Unless failure of justice caused no objection can be taken at appellate stage.
       Section 3, Article 65.
       Period of limitation-Possession of premises-Suit for-Premises occupied as incidences of service-Period of limitation be twelve years from time of adverse possession

JUDGMENT - R.G. VAIDYANATHA, J.:---This is an appeal against the judgement and Dercee dated 29-1--1993 in Short Cause Suit No. 5638 of 1989 filed in the City Civil Court Bombay. I have heard the learned Counsel appearing for both the parties.

2 The few facts which are necessary for the disposal of this appeal are as follows:The respondent-plaintiff filed a suit in the Court below against the appellants for a declaration that the defendants/appellants are trespassers of the suit property and for possession of the suit premises. The suit premises is a temporary shed situate in property bearing No. D-3495(1) at 8-A, Carmichael Road, Bombay 400026. The plaintiff is the owner of the entire property in which the suit property is situated

The plaintiffs case is that deceased Bhau Krishna Parab was working under the plaintiff and her husband as a servant. He was permitted to occupy and use the temporary shed . Some time in February 1980, Bhau Krishna Parab left the services of the plaintiff. Than the plaintiff and her husband called upon Bhau to vacate the temporary shed. He took some time but did not vacate the same .Then a legal notice was issued to him. It is stated that the possession of Parab after the notice was as a trespasser without having right or interest in the property. Mr. Parab died in year 1984. The defendants/appellants who are the wife and children of Bhau Krishna Parab are continuing to stay illegally and unlawfully in the suit property as trespassers Some other allegations are made in the plaint which are not necessary for our present purpose. In view of these allegations, the plaintiffs have filed the present suit.

3 The appellants contested the suit by filing the written statement. Their defence is as follows:

That the plaintiff has filed a suit in Small Cause Court, Bombay, in Suit No. 24 of 1992 and therefore, the present suit in the City Civil Court Bombay has to be dismissed inlimine. It is stated that deceased Bhau K. Parab was a tenant in respect of the suit premises and therefore, the defendants have also become tenants of the suit premises. Then it is stated that the suit is barred by limitation. Then some challenge is made to the ownership of the property which is not pressed in this appeal and hence it is not necessary to refer to the same It is denied that Bhau Parab was simply permitted to occupy the premises as a servant under the plaintiff without any fee. It is stated that Mr. Parab and after his death, the defendants are continuing in possession as tenants and not as trespassers. That the deceased Parab was paying rent to the plaintiff and was a protected tenant of the suit property.

It is also stated that out salary rent was being deducted. That this Court has no jurisdiction to try this suit. The defendants are protected by the Bombay Rent Act. Then it is also stated that this Court has no pecuniary jurisdiction to try this suit since the market value of the property is more that Rs. 50,000/- Hence it is prayed that the suit be dismissed with costs .

4 The learned trial judge framed the following issues:

(1) Does the plaintiff prove that she is the owner of the suit premises?

(2) Does the plaintiff prove that the defendants are trespassers in respect of the suit premises?

(3) Whether the suit of the plaintiff is bared by law of limitation?

(4) Whether this Court has jurisdiction to entertain and try the suit of the plaintiff?

(5) Whether the suit of the plaintiff is maintainable?

(6) Do the defendants prove that the late Bhau Krishna Parab was the tenant in respect of the suit premises?

(7) Do the defendants prove that the suit property is owned by the Trust?

(8) Whether the suit of the plaintiff is property valued for the purpose of the Court fees?

(9) Does the plaintiff prove that she is entitled to get the possession of the suit premises?

(10) What relief and order ?

5. The learned trial Judge considered all the issues and negatived all the contentions of the defendants and granted a decree for possessi

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