Francis Dias vs Harde Sumatilal Halabhai and Another

The facts relevant to this tenant''s revision application filed under S. 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act,

1947 (hereinafter called ''the Act'') may be stated in brief as under.

The petitioner was inducted as a tenant in the premises in question and was in actual occupation thereof till sometime before he was served with

a notice, Exhibit 27, dated Ist August 1973. By this notice his tenancy was terminated on the ground that he had acquired suitable residence in

Saikrupa Co-operative Housing Society Limited within the meaning of Clause (1) of sub-section (1) of S. 13 of the Act and that he had sublet the

demised premises to Indubhai Brahmbhatt, opponent No. 2 herein. On receipt, of the notice Exhibit 27, the tenant sent a reply dated 31st August

1973, Exhibit 73, wherein he stated that he had gone to live in the bungalow of his friend temporarily for a change and that no consideration was

paid for his occupation of the said bungalow and that he had not parted with the possession of the demised premises in favour of Indubhai whom

his wife treated as a brother. On receipt of this reply the landlord instituted the suit in question which was dismissed by the learned trial Judge by

his order dated Ist October 1976. The learned trial Judge came to the conclusion that the plaintiff had failed to prove that the tenant had

transferred or assigned his interest in the demised premises to Indubhai or that the tenant had acquired alternative suitable residential

accommodation within the meaning of S. 13(l)(1) of the Act. Therefore, in the view of the learned trial Judge neither of the two grounds advanced

by the landlord for an eviction decree against the tenant was established. He, therefore, dismissed the suit with costs.

The landlord feeling aggrieved by the judgment and decree of the learned trial Judge preferred an appeal, being Regular Civil Appeal No. 163

of 1976, in the Court of the learned District Judge, Mehsana. The learned District Judge on an appreciation of evidence placed on record, both

documentary and oral, came to the conclusion that both the grounds were established and accordingly allowed the appeal and passed a decree in

ejectment against the original tenant as well as the sub-tenant. It is against this decree passed by the learned District Judge that the present revision

application is preferred.

Section 13(l)(1) provides that notwithstanding anything contained in the Act but subject to the provisions of S. 15, with which we are not

concerned, the landlord shall be entitled to recover possession of any premises if the Court is satisfied that the tenant after the coming into

operation of the Act has built '' acquired vacant possession of or been allotted a suitable residence. It is not the case of the landlord that the tenant

has built any residential premises for his occupation. The case put up was that the tenant had acquired vacant possession of the bungalow situate in

Saikrupa Co-operative Housing Society Limited, belonging to one Jagjivandas Babulal Brahmbhatt. It is clear from the postal acknowledgment,

Exhibit 28 that the notice Exhibit 27 was served on the tenant at the said bungalow. The tenant has also deposed that he had shifted to the

bungalow about 15 or 20 days before the receipt of the notice, Exhibit 27. Therefore, the fact that he and his wife were living in the bungalow on

the date of service of the notice, Exhibit 27, is not in dispute. Even in the reply, Exhibit 29, the tenant had clearly stated that since he was not

keeping well, he had gone for a change to his friend''s bungalow temporarily. He had also stated that no rent was charged by his friend from him

and that he was allowed to stay in the bungalow exgratia. In his cross examination he had stated that both he and his wife were suffering from

tuberculosis and hence they had gone for a change to the bungalow of his friend but there was no animus to permanently shift from the demised

premises to the said bungalow. He has also stated in his evidence that no rent was paid by him to his friend for permitting him to occupy his

bungalow. There is no other evidence on the record to infer that any monetary consideration was paid to his friend Jagjivandas for permitting him

to occupy the bungalow even temporarily.

The learned District Judge has pointed out that the tenant was not consistent about the circumstances in which he went to reside in the bungalow

even temporarily. He points out that in his reply to the notice he averred that he had gone to reside in the bungalow as he was not keeping well. In

other words, there is no averment in the reply to the notice that his wife too was unwell. In the written statement to the plaint he averred that as his

wife was not keeping well and was experiencing discomfiture in the small room forming part of the demised premises, they went to reside in the

bungalow of Jagjivandas merely for a change. The learned District Judge points out that in the written statement the tenant puts forward the ground

of his wife''s illness whereas in the reply, Exhibit 29, the ground trotted out is about his illness. In the oral evidence before the Court the tenant

deposed that both he and his wife were suffering from tuberculosis and, therefore, they had gone to reside in the bungalow of their friend

Jagjivandas for change of air. There is no doubt that on this point he is not consistent but from that inconsistency, it would be too much to jump to

the conclusion that the tenant had ''acquired'' suitable residential accommodation. Even if Jagjivandas is not examined, the burden which lies on the

owner to prove the basic facts to bring the case within the purview of S. 13(l)(1) cannot be said to have been discharged from the mere fact that at

the relevant point of time when the notice Exhibit 27 was served on the tenant, he was admittedly residing in the bungalow in Saikrupa Co-

operative Housing Society Limited. Temporary occupation of a friend''s bungalow is not acquisition of vacant possession of residential

accommodation within the meaning of section 13(l)(1) of the Act. The word ''acquires'' in the context means acquiring right of residence in the

property and not merely actual residence permitted by the owner exgratia out of friendship. If a tenant, therefore, occupies a bungalow belonging

to a friend as a place of sojourn it cannot be said that he has acquired vacant possession of residential occupation within the meaning of Clause (1)

of S. 13(l) of the Act. Possession can be claimed under this clause if the tenant has G) built or (ii) acquired vacant possession of, or (iii) been

allotted, a suitable residence. If a tenant has built a suitable residence he can be evicted. The words ''has built'' would indicate ownership rights in

the property. Then follow the words'' has acquired vacant possession of a suitable residence. Read in the context of the preceding words,

acquisition of possession can never mean permission for temporary use of a suitable residence. The word ''acquire'' is a well understood legal term

and when used with the term ''possession'' it generally implies something more than a mere temporary possession; it usually implies a vesting of

interest or some substantial right to possess the residence. Even the words ''has been allotted'' a suitable residence mean more than mere

temporary residence; they mean allotment as of right, e.g., allotment of residence as a member of a society or allotment of residence as a

government servant, etc. It cannot by any stretch of imagination be said that the legislature intended to confer a right on the landlord to secure

eviction on the mere proof that the tenant had occupied another suitable residence, even if such occupation was merely temporary for change of

air. What is sought to be conveyed is that he must have acquired right to possess another suitable residence, a right which he can enforce in a

Court of law if he is sought to be dispossessed. In my view, therefore, a case for eviction u/s 13(l)(1) of the Act is not made out.

In Nathani Shivankumar v. Dhanalal, (1975) 16 Guj LR 779, eviction was sought under S. 13(l)(1) of the Act as the tenant had left the suit

premises in May 1970 and had returned to them in February 1971. During the said period he was occupying a house belonging to Ramchandra

Odhavdas in Sindhi Colony at Dohad. Dealing with the submission that the case fell within the purview of S. 13(l)(1) of the Act, the learned single

Judge observed as under: -

In order to bring home to the defendant the ground of eviction specified in S. 13(l)(1) it is necessary to prove that he had acquired vacant

possession thereof and that it was a suitable residence for him. Possession, in my opinion, means legal possession. Any occupation by 4ay person

of any premises does not amount to possession. Possession connotes transfer of interest in the premises.

Proceeding further, the learned Judge observed :-

To illustrate, if he occupied the bungalow as a mere licensee it would not amount to his possession of that bungalow. In my opinion, for the

purpose of S. 13(l)(1) it is necessary to distinguish occupation from possession. In the instant case, since there is no evidence to show that there

was transfer of interest by Ramchandra Odhavdas in respect of his bungalow to the defendant, it is extremely difficult for me to say that the

defendant had acquired possession of that bungalow.

In the present case also there is the evidence of the tenant alone on the question of the nature of his occupation of the bungalow in Saikrupa

Society. The plaintiffs power-of attorney has no personal knowledge as regards the nature of the transaction between the tenant and his friend

Jagjivandas. The tenant has stepped into the witness box and has stated that he has been permitted to reside in the bungalow exgratia out of

friendship for a short duration only since his wife and he needed change of air. The fact that the notice Exhibit 27 was served at the bungalow is an

innocuous circumstance. No doubt there is some inconsistency as to whether the couple shifted to the bungalow on account of the tenant''s illness

or the illness of his wife but that has nothing to do with the exact nature of the transaction between the tenant and his friend Jagjivandas. Merely

because Jagjivandas is not examined, it is difficult to come to the conclusion that the tenant is not telling the truth particularly because if he really

intended to shift from the demised premises to the bungalow and had acquired possession of the bungalow which was nearer to his factory, there

was no reason for him to make a statement against his own interest. The couple shifted back to the demised premises after a few months. This

would show that there was no animus to vacate the suit premises and to occupy the bungalow on a long term basis. I am, therefore, of the view

that the ingredients of section 13(l)(1) are not satisfied.

[Paras 7 to 11A X X]

In view of the above; on both the grounds, I come to the conclusion that the decree for eviction passed against the petitioner cannot be

sustained. The Revision Application is, therefore, allowed. The decree passed by the learned District Judge is set aside and the order of the trial

Court is restored. Rule made absolute accordingly. There will be no order as to costs so far as this application is concerned.

Application allowed.