2005 Supreme(Bom) 1074

IN THE HIGH COURT OF BOMBAY
RAFIUDDIN NURUDDIN MUSALMAN
Versus
ABDUYL KARIM ABDUL REHEMAN
Decided Date: 18/08/05

Headnote:Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Section 28 - Suit for possession. - Where relationship of landlord and tenant between plaintiff and defendant was not established therefore suit for possession under Section 28 of Act, 1947 not maintainable. - The plaintiff instituted a suit in the Court of 3rd Joint Civil Judge (J.D.) for possession of house. It is contended by the plaintiff that the suit house is owned by him since purchased from defendant No. 1 under registered sale-deed dated 1.5.1975 for a consideration of Rs. 7,000/-. Accordingly, a sale-deed came to be executed and possession also came to be delivered. It is contended by the plaintiff that after the sale transaction, the defendant No. 1 was put in possession as a tenant in presence of the panchas on his request on a monthly rent of Rs. 20/- and was allowed to occupy the suit house upto 1.8.1975 and it was agreed that after 1.8.1975 the possession will be restored back to the plaintiff. It is contended that thereafter, the defendant No. 1 did not pay the rent even though demanded and neglected to make the payment of the rent as agreed. It was contended that defendant No. 1 did not pay the rent but allowed defendant No. 2 to take possession of the suit house with only intention to create a dispute. According to the plaintiff, defendant No. 2 has no right to remain in possession as he is a trespasser. To entertain suit under Section 28, first and foremost thing is to be established that there exist relationship of landlord and tenant, who are parties to the suit. Trial Judge who has considered evidence of the plaintiff and disbelieved the plaintiff on the point of creation of tenancy. This finding of the trial Court has been confirmed by the Appellate Court. Both the Courts below were right in holding that the relationship between the plaintiff and the defendant as landlord and tenant is not established. The claim put forth by the plaintiff to seek possession of suit land from him is on the allegation that defendant No. 1 occupied the suit house as his tenant, on payment of monthly rent of Rs. 20/-. Thus the plaintiff in no uncertain terms has treated defendant No. 1 as his tenant. Thus for his eviction only remedy that is available to him to file a suit in the Civil Court having jurisdiction to entertain the suit under Section 28 of the Act. If this was only the claim then no fault can be found but looking to other part of the plaint and claim against defendant No. 2, where the plaintiff has accepted defendant No. 2 as a trespasser and claimed possession from him as such. Thus this relief of possession qua the defendant No. 2 is outside scope and jurisdiction of the Civil Court under Section 28 of the Act. AIR 1952 SC 271; 1964 Mh LJ 410 : 1964 (Vol. LXVI) BLR 205; 1964 BLR 106; AIR 1978 Bom 216; AIR 1984 Guj 182; AIR 1977 Cal 239; 1970 Mh LJ (SC) 848 : AIR 1970 SC 102; 1950 NLJ 49 : AIR (37) 1950 Nagpur 101; AIR 1953 Cal 185; AIR 1976 All 155; 2005 (2) All MLR 320; 2005 (2) All MLR 530; (2002) 8 SCC 400 - Referred.

       Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 - Section 28 Constitution of India, 1950, Articles 226 and 227 Suit under Section 28 Plaintiff trying to support contention Ground Oral evidence only Court can accept or reject such evidence Not open for High Court to reconsider said evidence Interference by High Court to be very slow. In judgment this finding which has been recorded by the Courts below is on appreciation of evidence. Therefore, under the jurisdiction of this Court under Article 227 of the Constitution of India, this Court will be very slow in interfering in that finding. One more aspect cannot be ignored that the plaintiff based his claim or tried to support his contention solely on oral evidence and when the case is rest on oral evidence and the trial Court as well as appellate Court either accept or reject that oral evidence, it will not be open for this Court to reconsider the said evidence. Therefore, both the Courts below were right in holding that the relationship between the plaintiff and the defendant as landlord and tenant is not established. Therefore, the said finding cannot be interfered with by this Court.

       Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 - Section 28 Maintainability of suit Existence of relationship of landlord and tenant is a prime condition These being initial parties of dispute, their relationship must be proved under statutory provisions. To entertain suit under Section 28. First and foremost thing is to be established that there exist relationship of landlord and tenant, who are parties to the suit. Now as such, Court to find out about the plea taken by the plaintiff qua defendant Nos. 1 and 2. As it has come on record i.e statement made in para 3 of the plaint and the notice issued by the plaintiff to defendants. The suit notice which also supports the averments made in the plaint. The plaintiff has examined himself where he has reiterated the fact which are stated in the plaint.

       Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 - Section 28 Possessory suit Jurisdiction of Civil Court Claim against trespasser Relief of possession to defendant being beyond scope and jurisdiction of Civil Court under Section 28 Not a sustainable case. So far as Section 28 is concerned, it does not matter, if the suit is filed by the landlord against the tenant for recovery of possession of demised property including arrears of rent, which may in given case exercised the pecuniary jurisdiction of that Court, still the Civil Judge under Section 28 of the Act has to decide the suit. Then the plaintiff has clubbed two distinct causes of action against two defendants. Thus suit as filed is required to be dismissed, the suit as filed was not maintainable. Therefore, the trial Court was right in dismissing the suit by recording the finding that the suit was bad for multifarious ness and as such the plaintiff is not entitled to the possession of the suit house. In view of this finding, the Assistant Judge exceeded his jurisdiction in reversing that finding and directing a decree for possession by ordering eviction of a trespasser to which the Courts i.e. trial Court and appellate Court as a special Courts under the Act are not empowered with. Therefore, the contention raised by advocate required to be accepted and upheld. Therefore, the Assistant Judge, ignoring the aspect that he was hearing an appeal filed under Section 29 of the Act, against the judgment and order passed by the Civil Judge in a suit filed under Section 28 of the Act, has thus assumed the jurisdiction in granting decree in favour of the plaintiff which he does not have. Therefore, such exercise of jurisdiction is, an error apparent on the face of record and as such the judgment cannot stand for any reason. The consolidated suit for recovery of possession from the tenant on the ground available under the Act and against a trespasser is not maintainable. The Assistant Judge has erred in allowing appeal and ordering possession of the property. Accordingly, order passed by the Assistant Judge, Dhule in Appeal No. 231/1982 stands set aside and the judgment and order passed by the learned 3rd Joint Civil Judge stands restored.