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2020 Supreme(Guj) 330
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. PARDIWALA, VIRESHKUMAR B. MAYANI, JJ.
Narottambhai Ranchhodji Patel Through His Legal Heirs & others – Appellant
Versus
Prabhavati Widow Of Sunderlal Zaverlal Desai & others – Respondents
R/Letters Patent Appeal No. 230 of 2002 in R/First Appeal No. 454 of 1977
Decided on : 29-05-2020
Advocate Appeared:
MR RS SANJANWALA, MR GN SHAH, MR KI SHAH
Point of Law:
Photographs would indicate that that no petrol pump is functioning on the land in question and it has become defunct. None of the respondents are either paying rent to the applicants or have deposited the same with the Trial Court and only because the Letters Patent Appeal is pending, the applicants are not in a position to take over the land in question and use the same or earn rent or in any way utilize the same.
Headnote:
Tenancy Act - Section 114 - Appeal original plaintiffs and is directed against judgment and order - Ownership of plaintiff from Survey was let out to deceased and defendant for installing only a patrol pump and a small cabin at a monthly rent - Tenancy was to start from first of English Calendar month to last date of month - Electricity bill was also to be paid by plaintiff apart from electric fitting work - Defendant are heirs of deceased - According to plaintiff defendants have committed breach of agreement not only by subletting suit land by defendant also filed written statement at contending that since they were authorized to sublet suit land vide rent note executed between deceased and defendant suit land was sublet to lawful subtenants - Held, Court decided suit on December - Trial Court came to conclusion that suit land is situated in Village provisions of Bombay Rent Act are not made applicable - No cross objections are filed against said finding of Trial Court also came to conclusion that suit is barred by res judicator that there is no subletting and that on ground of permanent structure was also rejected - However Trial Court came to conclusion that tenant was in arrears of rent to extent of but gave benefit Transfer of Property Act and relieved tenant from relief of forfeiture on condition that should deposit rent of when same is done then decree of forfeiture will not follow and if same is not paid decree should become final - Appeal allowed(Para 12)
Facts of the Case:
A piece of land admeasuring 200 feet by 200 feet of the ownership of plaintiff from Survey No.159, Hissa No.13 of Village Kodara, Taluka Palsana, District Surat, was let out to deceased Sundarlal Zaverlal Desai and defendant Nos.5 and 6 for installing only a patrol pump and a small cabin at a monthly rent of Rs.199/-. The tenancy was to start from first of English Calendar month to the last date of the month. Electricity bill was also to be paid by the plaintiff apart from electric fitting work. The defendant Nos.1 to 4 are the heirs of deceased Sundarlal Zaverlal Desai.
Finding of the Court:
Court decided suit on December - Trial Court came to conclusion that suit land is situated in Village provisions of Bombay Rent Act are not made applicable - No cross objections are filed against said finding of Trial Court also came to conclusion that suit is barred by res judicator that there is no subletting and that on ground of permanent structure was also rejected - However Trial Court came to conclusion that tenant was in arrears of rent to extent of but gave benefit Transfer of Property Act and relieved tenant from relief of forfeiture on condition that should deposit rent of when same is done then decree of forfeiture will not follow and if same is not paid decree should become final.
Result: Appeal allowed
JUDGMENT :
VIRESHKUMAR B. MAYANI, J.
1. This Letters Patent Appeal under Clause 15 of the Letters Patent Act is at the instance of the original plaintiffs and is directed against the judgment and order dated 9th November 2001 passed by a learned Single Judge of this Court in the First Appeal No.454 of 1977.
2. The facts giving rise to this Letters Patent Appeal can be gathered from paras 1 to 2.8 of the impugned judgment and order as under:
“2.1 A piece of land admeasuring 200 feet by 200 feet of the ownership of plaintiff from Survey No.159, Hissa No.13 of Village Kodara, Taluka Palsana, District Surat, was let out to deceased Sundarlal Zaverlal Desai and defendant Nos.5 and 6 for installing only a patrol pump and a small cabin at a monthly rent of Rs.199/-. The tenancy was to start from first of English Calendar month to the last date of the month. Electricity bill was also to be paid by the plaintiff apart from electric fitting work. The defendant Nos.1 to 4 are the heirs of deceased Sundarlal Zaverlal Desai. According to plaintiff, the defendants have committed breach of the agreement not only by subletting the suit land by defendant Nos.1 to 6 to defendant Nos.7 and 8, who again sublet the same to defendant Nos.9 to 11, but the defendant Nos.6 and 7 made construction in contravention of the plan by making permanent structure on the land also. It was stated by the plaintiff that though he is entitled to recover rent from 1-7-1964, it was held in Regular Civil Suit No.20 of 1965 and in Regular Civil Appeal No.3 of 1970 that plaintiff would be entitled to recover rent from 17-1-1965 onwards and hence, a notice was served upon the respondent Nos.1 to 6 to pay him an amount of Rs.16,915/being the rent for the period from 17-1-1965 to 29-2-1972 at the rate of Rs.199/per month together mense profit of Rs.34/. Since the defendants did not pay the due amount to him, a suit being Special Civil Suit No.47 of 1972 was filed before the Court of learned Civil Judge (S.D.) claiming the aforesaid amount.
2.2 The defendant Nos.1 to 4 and 6 did not file any written statement.
2.3 However, defendant No.5 filed written statement at Ex.39 contending that suit is filed in collusion with defendant Nos.6 and 9. Since the defendant No.7 wanted to start a patrol pump, he along with deceased Sundarlal found out the suit land suitable for patrol pump and hence, a fraud was committed by the defendant Nos.6 to 9 against Sundarlal and defendant No.5 gave dealership to defendant No.9. It was further contended that suit land was hired for a period of 20 years and it expires on 14-10-1983 and hence, the suit was premature and plaintiff would not be entitled to claim possession of the suit land. The construction of only a small cabin and patrol pump on the suit land is not admitted by defendant No.5 and according to him, subletting of the suit land is not barred as per the rent note. It was not admitted that defendant Nos.9, 10 and 11 were the subtenants of defendant Nos.7 and 8. It was further contended that since the construction was made as per the plan, defendant Nos.1 to 6 have not committed any breach of the terms of tenancy. It was submitted that the Regular Civil Suit No.20 of 1965 filed by the plaintiff on the same ground was dismissed. Regular Civil Appeal No.3 of 1970 preferred against the dismissal of the suit was also dismissed by the District Court and hence, the present suit by the same party on the same cause of action is barred by the principle of resjudicata. It was denied that rent was due from 1-1-1964 or 17-1-1965 at the rate of Rs.199/per month and hence, an amount of Rs.16,915/claimed by the plaintiff towards rent and Rs.34/towards mense profit was also denied. It was also denied that the suit notice, though not received by him, was not legal and valid. According to him, suit land was not damaged as it was used and occupied by defendant Nos.7 to 11. It was stated that suit was time barred and since Second Appeal No.540 of 1970 filed agains
