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2015 Supreme(Bom) 1099
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
M.T. JOSHI, J.
Rameshchandra Daulal Soni & Ors. - PETITIONERS
VERSUS
Devichand Hiralal Gandhi & Ors. - Respondents (Ori. Pltff. & deft.No. 3 to 6)
CIVIL REVISION APPLICATION NO. 112, 113, 114 OF 2012
Decided On : 20.7.2015
Mr. P.M. Shah, Senior Advocate instructed by and with Mr. J.R. Shah, Advocate for the petitioners in Civil Revision Application No. 112/2012.
Mr. A.K. Gawali, Advocate for the petitioner in Civil Revision Application No.113/2012.
Mr. R.R. Mantri, Advocate for the petitioner in Civil Revision Application No. 114/2012.
Mr. S.D. Kulkarni and Mr. S.S. Kulkarni, Advocates for the respondents No. 1A to 1E in all the Civil Revision Applications.
The main legal point established in the judgment is that the notice of eviction served on one joint tenant is binding on all joint tenants, and the occupier and the tenant must specify the nature of the possession of the occupier in the tenanted premises.
Headnote:
Eviction - Default in Payment of Rent, Non-User, Sub-Letting - Bombay Rent Act - Section 5(11)(c), Section 13(1)(k) - The court confirmed the decree for eviction based on default in payment of rent and non-user of the premises. The court also held that the sub-tenants did not have independent title and therefore upheld the decree.
Fact of the Case:
The suit was filed for eviction of the defendants on the grounds of default in payment of rent, non-user of the premises, and sub-letting. The trial court decreed the suit based on default in payment of rent and non-user of the premises. The District Court confirmed the decree.
Finding of the Court:
The court found that the defendants failed to pay rent and did not use the premises for the intended purpose. The court also held that the sub-tenants did not have independent title and therefore upheld the decree.
Issues: The issues included non-joinder of necessary parties, default in payment of rent, non-user of the premises, limitation, and sub-letting.
Ratio Decidendi: The court held that the tenancy was inheritable and the notice of eviction served on one joint tenant was binding on all joint tenants. The court also found that the premises were not in use without reasonable cause and that the suit was not beyond limitation. The court further held that the occupier and the tenant must specify the nature of the possession of the occupier in the tenanted premises.
Final Decision: All three civil revision applications were dismissed with costs.
1. All the present civil revision applications have arisen out of one and the same suit filed by the common respondents No. 1 (since deceased) for eviction of the defendants therein on the ground of default in payment of rent, non-user of the suit premises by the original defendants No. 1 and 2 i.e. the petitioners in civil revision application No. 112/2012 for a period of more than six months and sub-letting some portions of the suit premises to the lateron added defendants No. 3 to 7, including the petitioners in civil revision applications No. 113/2012 and 114/2012. The suit was decreed by the learned Civil Judge Senior Division, Ahmednagar on the ground of default in payment of rent and non-user of the suit premises. The ground of sub-letting some portions of the suit premises did not find favour with the trial court.
Aggrieved by the decree passed by the trial court, the original defendants No. 1 and 2 preferred an appeal before the District Court and aggrieved by the refusal of decree against original defendants No.3 to 7 as subtenants, the original plaintiffs filed cross-objection. Further, original defendant No.3/revision petitioner in Civil Revision Application No.113 of 2012 and original defendant No.5/revision petitioner in Civil Revision Application No.114 of 2012 also filed Cross-objections. Thus, the entire dispute was before the District Court.
2. The learned Principal District Judge dismissed the appeal and though did not agree with the plaintiffs that the defendants No. 3 to 7 were sub-tenants, held that they do not have any independent title than that of the tenants i.e. of defendants No. 1 and 2 and therefore, the decree passed by the trial court was confirmed.
3. It is to be noted that out of these defendants No. 3 to 7, while some of them failed to put their appearance and therefore, the suit proceeded exparte against them in the trial court, some of them did not file any written statement and their Advocate had filed no instructions purshis from their respective clients. Eventually, the suit proceeded without any written statement from them. The revision petitioners in civil revision applications No. 113/2012 and 114/2012, are the defendants, who failed to file the written statement.
4. The suit property is a final plot bearing No. 19, lateron included in town planning scheme and is now within the limits of Ahmednagar Municipal Corporation. The said plot admeasures 2656 sq. mtrs.
The suit property was originally owned by three brothers, namely, Shri B.N. Deshmukh, Shri L.N. Deshmukh and Shri M.N. Deshmukh, called as Deshmukhs by the trial court. The grandfather of defendants No. 1 and 2, namely, Jagannath Soni had obtained on lease the suit property by a registered lease-deed dated 22nd May, 1928 from the father of Deshmukhs. The son of said Jagannath Soni, namely, Daulal Soni continued to be in possession of the suit property. Upon his death on 2nd June, 1985, the suit property, according to the plaintiffs, continued with the defendants No. 1 and 2. These defendants have, however, disputed that they are the only legal representatives of the deceased. According to them, two daughters of Daulal Soni also inherited the tenancy rights and therefore, the plea of non-joinder of necessary parties was taken.
The three sons of Narhar Balkrishna Deshmukh, namely, Shri B.N. Deshmukh, Shri L.N. Deshmukh and Shri M.N. Deshmukh had, according to the plaintiffs, sold the suit property to the plaintiff on 08.08.1986 and thus, according to the plaintiff, he became the landlord of defendants No. 1 and 2.
5. In this background, the case of the original plaintiff, in short, is as under : -
On the strength of transfer of the property to the original plaintiff, he gave intimation to the defendant No.1 about the transfer of the property by registered post acknowledgement due and defendants No. 1 and 2 were directed to tak
