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Bombay High Court
BHARUCHA
Tejoomal Lakhmichand - Appellant
Versus
M.J.Talegaonkar - Respondent
Decided On : 02/04/1980
TENANCY - UNREGISTERED ASSOCIATION - VALIDITY - ADVERSE POSSESSION - LIMITATION ACT, 1963 - SECTION 27 - TRANSFER OF PROPERTY ACT, 1882 - SECTION 105 - BOMBAY RENTS, HOTEL AND LODGING HOUSE RATES CONTROL ACT - SECTION 28 - CIVIL PROCEDURE CODE, 1908 - ORDER 23, RULE 1 - An unregistered association cannot be a tenant as it is not a legal entity capable of contracting.
Fact of the Case:
The plaintiffs purchased an immovable property with a building thereon in 1950. The Bombay Zionist Association was shown as a tenant in respect of a part of the second floor of the building. In 1964, the plaintiffs terminated the tenancy of the Association and filed a suit for its eviction. The suit was withdrawn in 1973. The plaintiffs filed a fresh suit in 1974, impleading the Association and its members as defendants. The defendants contended that the Association was an unregistered association and that the suit was not maintainable. They also claimed adverse possession of the portions of the premises in their occupation.
Finding of the Court:
The court held that the suit was maintainable as it did not fall within the ambit of Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, which deals with suits relating to the recovery of rent or possession by landlord and tenant. The court also held that the suit was not barred by res judicata as the issues in the earlier suit were different from the issues in the present suit. The court further held that an unregistered association cannot be a tenant as it is not a legal entity capable of contracting. The court also held that the defendants had not acquired title to the portions of the premises in their occupation by adverse possession as they had not asserted a hostile title to the portions of the premises in their occupation for more than 12 years.
Issues: 1. Whether the suit is maintainable? 2. Whether the suit is barred by res judicata? 3. Whether an unregistered association can be a tenant? 4. Whether the defendants have acquired title to the portions of the premises in their occupation by adverse possession?
Ratio Decidendi: 1. The suit is maintainable as it does not fall within the ambit of Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, which deals with suits relating to the recovery of rent or possession by landlord and tenant. 2. The suit is not barred by res judicata as the issues in the earlier suit were different from the issues in the present suit. 3. An unregistered association cannot be a tenant as it is not a legal entity capable of contracting. 4. The defendants have not acquired title to the portions of the premises in their occupation by adverse possession as they had not asserted a hostile title to the portions of the premises in their occupation for more than 12 years.
Final Decision: The court decreed the suit in favor of the plaintiffs and against the defendants in terms of prayers (a), (b) and (c) of the plaint. The court also decreed the suit in terms of prayer (d) as against defendant No. 1. The court directed that the decree for possession against the defendants shall not be executed till 1st March, 1981.
2. The plaintiffs filed this suit on 23rd April, 1974. Defendant No. 1 herein is impleaded as representing himself and all other members of the Association. Defendants Nos. 2 to 13 are parties who have been put in possession of portions of the premises by the Association, white retaining for itself some portion thereof. It is contended in the plaint that, the Association being an unregistered body, no tenancy in law could have been created in its favour and the purported tenancy recognised by the plaintiffs without knowledge of the real status of the Association is void and not binding on the plaintiff. In regard to the other defendants it is contended that, since they claim through the Association, they are trespassers in respect of the particular portions of the premises in their occupation.
3. Upon the contentions raised in the written statements, issues have been framed which I proceed to consider.
4. The first plaintiff was examined and he deposed to the facts mentioned in the plaint. He identified the defendants in respect of their occupation of particular portions of the premises. In cross-examination by counsel for defendant No. 1, the first plaintiff stated that he came to know that the Association was an unregistered association in the course of the proceedings in the Small Cause Court. He said that after the Small Cause Court suit had been withdrawn he had, in 1971, asked the Association to give him a list of the members of its committee but that he had not obtained that list till 1973. He was asked why he had accepted rent from the members of the Jewish community after it came to his knowledge that the Association was unregistered. He replied that he "accepted compensation because the Association was occupying and using the premises and this was not a charity house." Defendant No. 1 led no evidence. The other defendants examined themselves to show what portions of the premises were in their occupation and when they entered into such occupation. Upon this aspect there is no dispute.
5. It was contended by Mr. Parsarampuria, learned counsel for defendant No. 1, that this court had no jurisdiction to entertain and try the suit. Mr. Parsarampuria's submission was, in his own words :-
"In view of the association having been shown tenant admittedly in para 2 of the plaint and the plaintiff having accepted the attornment of the Association as a tenant, whether the association is a legal tenant or not can be only decided by Small Cause Court under Section 28 of the Rent Act."
Mr. Parsarampuria relied upon various authorities in support of this submission which, in my view, have no application to the facts of this case; one, namely, Mehersingh Sethi v. Khurshed Satarawalla, (1954) 56 Bombay LR 540 actually goes against him. The question of the ambit of Section 28 of the Bombay Rents, Hotel a
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