Bhagirathibai Ramchandra Shelar vs Hajee Hassen Adamjee Laher

V.P. Tipnis, J.—The plaintiffs landlords filed R.A.E. Suit No. 1830 of 1965 in the Court of Small Causes at Bombay against defendant No. 1. Ganu Rama Gaikwad and defendant No. 2. Ramchandra Ramji Shelar for possession of the suit premises. The suit premises are tenement No. 38 in a building known as ''Patel Building'' at Naigaum, Mumbai, owned by the plaintiffs. The grounds for possession are that defendant No. 1 failed and neglected to pay arrears of rent from August 1962 that defendant No. 1 has made a permanent construction of a loft in the suit premises and that defendant No. 1 has unlawfully sub-let a portion of the suit premises to defendant No. 2 sometime in 1962. The suit was originally filed only against defendant No. 1, but subsequently, at the request of defendant No. 2, defendant No. 2 was added as party to the suit. Defendant No. 1 remained absent. Defendant No. 2 resisted the suit and specifically contended that he has been staying in the suit premises right from 1937 as a subtenant of defendant No. 1 and that he has become a lawful sub-tenant in respect of the suit premises. Further, defendant No. 2 has contended that after July 1962, the rent rendered by him has been refused by the plaintiffs.

After recording evidence, the learned Judge of the trial Court held that from the record of the Gold Mohur Mills where defendant No. 2 was serving, it is established that from 1937 the address of the suit premises was mentioned as the address of defendant No. 2. The premium receipt issued by the New Swastik Assurance Company in the year 1946 also shows the suit premises as the address of defendant No. 2. The birth certificate of the daughter of defendant No. 2 in the year 1955 also mentions the suit premises as the address of defendant No. 2. The learned Judge held that the evidence categorically shows that defendant No. 2 has been staying in the suit premises much prior to 21.5.1959. The learned Judge has meticulously assessed the evidence on behalf of the plaintiffs. Witness Gulam Mohamed Husainbhai Balsadwala joined the services of the plaintiffs in 1955 and, therefore, he had no knowledge of the events which were prior to 1955. The other witness, viz., Rameshwarprasad Tiwari in cross-examination has admitted that from 1960 to 1970 he was out of Mumbai. The first witness has stated that defendant No. 1 Sub-let the suit premises and handed over the possession of the front portion to defendant No. 2 in the year 1962 and went to his native place whereas the second witness has stated that defendant No. 2 came to the suit; premises sometime in the year 1960. In view of the contradiction as well as other facts already mentioned, the learned Judge did not accept the evidence of the two witnesses. The learned Judge felt that documentary evidence clearly shows that defendant No. 2 has been staying in the suit premises much prior to 1959. On this basis, the learned Judge of the trial Court held that the evidence shows that defendant No. 2 has been in occupation of the suit premises prior to the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959 and, as such he has become a lawful sub-tenant in respect of the suit premises.

On the above reasoning, the learned Judge dismissed the suit of the landlords for possession of the suit premises. However, monetary decree for arrears of rent was passed and defendant No. 2 was given liberty to deposit the amount in the Court before 31.8.1972. The aforesaid judgment and decree was passed by the learned Judge on 29 8.1972.

Being aggrieved by the said judgment and decree, the original plaintiffs/landlords preferred Appeal No. 559 of 1972 to the Bench of the Court of Small Causes at Bombay. The learned Judges observed that defendant No. 1 was serving in Bombay till the year 1963 and, in fact, defendant No. 1 joined Gold Mohur Mills in July 1950 and was in the employment of the Mill till 20.1.1964. The learned Judges felt that defendant No. 1 was occupying the suit premises even after 21.5.1959. Some other evidence also shows that defendant No. 1 was in the suit premises till 21.10.1963. The learned Judges observed that it is true that there is evidence to show that defendant No. 2 Ramchandra Shelar has been occupying the suit premises from 1945 and the service record shows that in the Gold Mohur Mills, the residential address of defendant No. 2 right from 1937 is the same is that of the suit premises. The learned Judges observed that documentary evidence would no doubt show that deceased Ramchandra Shelar was also occupying the said suit premises since prior to 21.5.1959 and that would negative the case of the plaintiffs on the basis of oral evidence of the Rent Collector that he came to occupy the suit premises only in the year 1960 or 1962.

Correctly observing as aforesaid, thereafter, the learned Judges felt that however merely because deceased Ramchandra Shelar was occupying the suit premises since prior to 1937, he cannot get protection as a lawful sub-tenant unless he establishes that the suit premises were sub-let to him prior to 21.5.1959. The learned Judges felt that the record shows that till 1964 defendant No. 1 was also residing in the suit premises. The evidence adduced by Shelar on the question of payments made by him was not accepted by the learned Judges as the receipts were in the name of defendant No. 1. The learned Judges felt that the onus was on defendant No. 2 to show that his occupation was as a lawful subtenant. The learned Judges felt that the evidence shows that defendant No. 1 was on the suit premises jointly with defendant No. 2 Ramchandra Shelar and in the absence of evidence on the point as to whether deceased Shelar was occupying the suit premises exclusively for consideration as a sub-tenant of defendant No. 1, it would be difficult to accept the conclusion of the trial Court that merely because since 1945 Ramchandra Shelar was occupying the suit premises, if would be protected as a lawful sub-tenant. The learned Judges also referred to the fact that defendant No. 2 admitted that he made an application to the BEST for electric meter about ten or 11 yeas ago before he gave his evidence in August 1972 and the defendant No. 1 was residing in the suit premises. Defendant No. 2 further admitted that the sister and niece of defendant No. 1 were also residing in the suit premises. The learned Judges felt that, therefore, at the most, Ramchandra Shelar was permitted to occupy the suit premises alongwith defendant No. 1. The learned Judges observed that it is not the case of the defendants that Shelar was occupying the suit premises as a licensee or that licence was subsisting on 1.2.1973. Under the circumstances, the learned Judges came to the conclusion that defendant No. 2 is not proved to be a lawful sub-tenant of the suit premises. Accordingly, by judgment and decree dated 12.1.1980 the learned Judges of the appellate Court allowed the appeal, set aside the decree passed by the trial Court dismissing the suit and instead decreed the suit for possession. Being aggrieved by the said judgment and decree of the appellate Court, original defendant No. 2, through his heirs, has preferred this Writ Petition.

I have heard Mr. Kurup, learned Counsel appearing for the petitioner, and Mr. Sayed, learned Counsel appearing for the original plaintiffs/landlords. Mr. Kurup submitted that the learned Judges of the appellate Court have made out a totally new case for the plaintiffs. Mr. Kurup submitted that, in any case, the evidence clinchingly shows that defendant No. 2 was on the suit premises prior to 1959 and at least prior to 1972 and, as such, was clearly protected as a lawful subtenant not only under the original Ordinance of 1959 but also under the Amendment Act of 1973 and subsequently the Amendment Act of 1987. Mr. Sayed, learned Counsel appearing for respondents No. 1 to 3, on the other hand, fully supported the judgment of the lower appellate Court and contended that the evidence on record very clearly shows that defendant No. 2, at the best, was a gratuitous licensee and, as such, he would never get the status of a lawful subtenant. With the assistance of the learned Counsel on both the sides, I have gone through the entire record and the judgments of both the lower Courts.

I am of the clear opinion that the learned Judges of the appellate Court have made out a totally new case for the plaintiffs. It requires to be reiterated that the learned Judges of the appellate Court themselves have categorically held that documentary evidence would no doubt show that deceased Ramchandra Shelar was also occupying the suit premises since prior to 21.5.1959 and that would negative the case of the plaintiffs on the basis of oral evidence of the Rent Collector that he came to occupy the suit premises only in the year 1960 or 1962. Therefore, when defendant No. 1 has sub-let the premises to defendant No. 2 is the case of the plaintiffs themselves, the only question is when the subletting took place and once it is found that defendant No. 2 alongwith his family members has been continuously staying in the premises right from 1937, it is clear that the sub-letting was of much prior date than 1962. The learned Judge of the trial Court was absolutely right in concluding that defendant No. 2 has proved that he was a lawful subtenant in view of the fact that he was in exclusive occupation of at least a part of the premises prior to 21.5.1959.

I am also in agreement with the submission of the learned Counsel for the petitioner that, in any case, the evidence on record conclusively shows that at least from 1962 onwards, defendant No. 2 was in exclusive possession of the entire suit premises. If that is so, very clearly defendant No. 2''s possession, which is claimed to be as a sub-tenant by the plaintiffs themselves right from 1962, is clearly protected by the Amendment Act of 1973 and, thereafter, by the Amendment Act of 1987 by which Section 15(2) of the Bombay Rent Act was amended.

In the result, the petition succeeds. The judgment and decree dated 12.1.1983 passed by the appellate Bench of the Court of Small Causes at Bombay in Appeal No. 559 of 1972 is quashed and set aside and the judgment and decree passed by the learned Judge of the trial Court on 29.8.1972 in R.A E. Suit No. 183 of 1965 is restored and confirmed. The rule made absolute in the aforesaid terms. There shall be no order as to costs. The landlord would obviously be entitled to withdraw all the amounts deposited by defendant No. 2 without prejudice to their rights and contentions.