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CASE NO.: Appeal (civil)  5162 of 2002

PETITIONER: M.M.Bilaney & Anr.                                                 

RESPONDENT: Fali Rustomji Kumana                                        

DATE OF JUDGMENT: 27/09/2005

BENCH: ARUN KUMAR & A.K. MATHUR

JUDGMENT: J U D G M E N T  

A.K. MATHUR, J.

               This appeal is directed against the judgment and order  passed by the learned Single Judge of the High Court of Bombay in  WP No.1247 of 1997 whereby the learned Single Judge has  dismissed the writ petition filed by the appellants.                 Brief facts which are necessary for the disposal of this  appeal are as under.  The appellants filed a suit being R. A. E. Suit No.371/3169 of  1976 for eviction against the original defendant, Rustom D.Kumana  (now deceased).  In the course of the proceedings, during the life  time of original defendant, the respondent Fali Rustamji Kumana (son  of original defendant) applied that he be joined as a party defendant  on the ground that he was a tenant in respect of the suit premises in  his own right or at least a deemed tenant as on 1.2.1973 under the  Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.  Initially, the defendant  Rustom D.Kumana,  the father of the  respondent was sole party defendant in the suit filed by the  appellants/ plaintiffs. That application was allowed and respondent  was added as a party defendant No.2 in that suit.  The suit was filed  by the appellants on the ground that the premises  were bona fide  required by the appellant No.1  for the residence of his widowed  daughter who was also the sister of appellant No.2.  The original  defendant i.e. Rustom D. Kumana filed a written statement on  5.11.1976. Therein he submitted that he was willing to submit to the  orders of the Court.  It was pointed out that his wife and son ( the  present respondent) are residing in the suit premises. The defendant  No.2 i.e. the present respondent filed a written statement on 5.4.1979  and contended that he  was the tenant in his own right or deemed to  be a tenant as per 1973 amendment to the Bombay Rents, Hotel and  Lodging House Rates Control  Act, 1947 ( hereinafter to be referred  to as "the Act"). On 30.9.1980 the appellants moved the Court for a  decree on admission against the original defendant No.1. On  20.6.1981 a decree came to be passed against the original defendant  No.1.  The original defendant did not challenge the decree and it  became final. Thereafter, the defendant No.2 filed an appeal against  the said order passed against defendant No.1, the father of  respondent. He also filed suit for declaration of his  tenancy right qua  appellants.    Meanwhile, the original defendant No.1 expired on  3.10.1984.  On 27.5.1985 the appellants executed a gift deed in  favour of one Manavi Pravin Thakkar who accepted the gift of the  premises in question. In gift deed the fact of  pending litigation was  mentioned. Pursuant to the execution of the gift deed the respondent  amended the appeal and contended that the appellants had ceased  to be the landlord of the suit premises,  hence  the  appellants   could

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not maintain the suit against the respondent nor  could  they  execute  the   decree    of    eviction    passed     against    the original  defendant No.1.  By the order dated 9.12.1986 the Appellate    Bench of the Small Causes Court allowed the appeal on the ground that the  decree of eviction passed by the trial court against the tenant was not  legal. Aggrieved against the said order the present appellants  preferred a writ petition before the High Court of Bombay which came  to be registered as Writ Petition No.187 of 1987. By order dated  6.2.1987  the High Court set aside the order of the Appellate Bench  of the Small Causes Court and remanded the matter to be tried by  the trial court.  However, the apprehension of the respondent was  allayed by the High Court  that  if the decree against the original  defendant No.1 was executed, then the respondent  would  take out  proceedings under Order XXI Rule 97 of the Code of Civil Procedure  and in that context  the High Court observed that undertaking  be  given by the appellants that they would not execute the decree  obtained against original defendant No.1 till  such time  that the  present suit against the present respondent and the appeal, if any,  are disposed of.  The undertaking to this effect was given by  the  appellants. The High Court observed that  the appellate Bench of the  Small Causes Court ought not to have considered the appeal filed by  the present respondent  against the decree passed against the  original defendant No.1 as the suit was being proceeded against the  defendant No.2.  In this background, the matter was sent back to the  trial court.  The  relevant portion of  order dated 6th February, 1987  passed by in the High Court of Judicature at Bombay reads as  under:- "  Heard both parties.  Rule heard forthwith.  It  appears that on satisfaction of the existence of the  ground for eviction for bonafide requirement of the  landlord and on admission by original defendant no.  1 to that effect, a decree of eviction as against  defendant no. 1 is passed by the trial court.  He  challenged the decree passed against defendant   no. 1. The defendant no. 1 did not challenge the  decree.

The Appeal Court  set-aside the decree passed  against defendant no. 1 hence this petition by  plaintiffs landlord.

The only apprehension of defendant no. 2 is that if  the decree against defendant no. 1 is executed he  will have to obstruct it.   That apprehension can be  taken care of by recording the undertaking of the  plaintiff that they  shall not execute the decree  obtained against defendant no. 1 till such time that  the suit against defendant no. 2 and appeal, if any,  are disposed of.  The plaintiff \026petitioner does give  that undertaking before this court.

       Moreover, the Appellate Court ought not to  have considered the defendant no. 2’s appeal  against decree passed against defendant no. 1,

       While the suit is yet to proceed against  defendant no. 2. Hence impugned order of  Appellate Court is quashed and set-aside.   Trial  Court to proceed with suit against defendant no. 2.     Plaintiff shall not execute decree already passed  against defendant no. 1,  against no. 2 until disposal  of  the suit and appeal if any.   With above  directions, the Rule is made partly absolute."

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On 16.7.1987 the respondent amended the written statement  and by that amendment he averred that he has been occupying the  suit premises in his own right as a tenant of the appellants or a  deemed tenant under the 1973 amendment to the Act.  It was also  pointed out that he was always ready and willing to pay the rent and  he has been continuously paying the rent to the appellants and  the  same has been accepted by the appellants.  Then another  amendment was made by the respondent in 1990 to the written  statement and it was contended that he was the only child to the  original defendant No.1 \026 his father, Rustom D.Kumana. The issues  were framed in the suit. On 30.9.1994 the trial court decreed the suit  in favour of the appellants. The trial court held that the respondent  had failed to prove his tenancy right and as such he was a mere  trespasser. Therefore, there was no need to render any finding on  other issues.  It was also held that the appellants have proved their  bona fide requirement. It was further held that greater hardship would  be caused to the appellants if the decree of eviction was not passed.  The trial court further held that the suit as filed by the appellants was  maintainable and the appellants were the landlords within the  meaning of the Act for getting possession of the premises under  Section 13(1)(g) of the Act.  Relevant portion of order dated  29.9.1994 passed  by the  Trial Court in RAE Suit No. 571/3169 of  1978  reads as under: " In view of  reasons which re-discussed above,  I   came to the  conclusion that the defendant No. 2  has failed to prove that he has any independent  tenancy  right in the suit premises."

Aggrieved against this order the respondent preferred an  appeal before the Appellate Bench of the Small Causes Court. The  Appellate Bench allowed the appeal of the respondent by order dated  10.9.1996 on the ground that the appellants had ceased to be the  owners after execution of the gift deed in 1985 and as such were not  landlords entitled to seek eviction under Section 13(1)(g) of the Act.   However, at the same time, the Appellate Bench held that the  respondent was not a tenant. It was observed in para 64 of the order  dated 10.9.1996 by the Appellate Court in  Appeal No. 409/1994 in  RAE Suit No. 571/3169 of 1978 which reads as under:

"The question as to whether the appellant  has been  able to prove his independent entitlement to the suit  premises  save and except the son of the tenant  has also been dealt with above.  Although he has  not been able to do so, but the above features need  to be recalled.  For the  sake of record points 6 and  7 are answered accordingly."

Aggrieved against this order, a writ petition was filed by the  appellants and in this background, the High Court after considering   the matters dismissed the writ petition holding that  the appellants  having gifted the premises in question therefore they  ceased to be  landlords and as such the decree of eviction cannot be passed in  favour of the appellants. Aggrieved against this order passed by the  learned Single Judge of the High Court of Bombay, the present  appeal has been filed on grant of special leave.

               In this background,  the short question which falls for our  determination is what is the effect of the finding given by the courts  below that  the respondent -  Fali Rustomji Kumana who was  defendant No.2 was not a tenant and in that case, whether he could  defeat  the suit filed by the appellants after they have gifted away the  suit premises to a third person as they ceased to be  landlords.

               It is  the admitted position that Rustom D. Kumana was

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the original tenant and  the suit was filed by the plaintiffs  and in that  suit, he did not contest and a decree of eviction was passed.  Therefore, so far as the tenancy rights of the original  tenant/defendant no. 1 were concerned,  the same came to an end.  But the son who was residing in the premises moved an application  and sought to be impleaded as a respondent and he claimed that he  was a tenant in the premises in question. Therefore, the question  came up for determination  whether he was a tenant or not. The  trial  court and the first appellate court as well as the High Court in writ  petition  did not disturb this finding that the respondent- Fali  Reustomji Kumana was  not a tenant in the premises in question.  In  fact, when the tenancy came into existence  the respondent was 9  years old. All the courts below  have categorically found that there  was no subsisting tenancy between the appellants and the  respondent- Fali Rustomji Kumana.  High Court did not dispute this  fact however proceeded  to decide the matter on the basis that  appellants ceased to be  the landlord because of gift deed. If it is  accepted that he was not a tenant, then can a decree of eviction be  passed against  a trespasser challenging  the ownership of the  appellants because the premises in the meanwhile was gifted out by  them to a third party.

               It was contended by learned counsel for the appellants  that once the tenancy of the original landlord had been determined  and the respondent has not been found to be a tenant,  there was no  relationship of landlord and tenant between the respondent and the  original landlords, then the respondent is  rank trespasser and if he is  rank trespasser he cannot claim tenancy right against another person  who has stepped into the shoes of the original landlord. In the present  case, in fact the original tenant’s son \026 the present respondent was  only  residing in the premises through his father as his father was a  tenant and  the tenancy having  come to an end,  his position  remained as a trespasser, because finding was  given by all the  courts below that there was no tenancy subsisting between the  appellants and the respondent- Fali Rustomji Kumana. The tenancy  was not hereditary. Once the decree of eviction was passed against  his father and father expired in 1984 he has become trespasser.  Secondly a declaration has been given against him that there exists  no relationship  of landlord and tenant.                 Learned counsel for the appellants also submitted that an   extended meaning should be given to Section 14 of the Act. Learned  counsel also pressed into service some of the provisions of the gift  deed to show that despite the fact that the appellants have gifted  away the premises in question to the  new landlord, the respondent  has reserved right for himself to be a deemed tenant in the premises.  Learned counsel in this connection  referred to a decision of this  Court in the case of P.V.Papanna & Ors. v. K.Padmanabhaiah  reported in AIR 1994 SC 1577. Another decision of the High Court of  Bombay in the case of Homi Jamshedji Khansaheb & Ors. v.  Chandrakant Atmaram Lamage & Ors. reported in 1984 Mh.L.J. 719  was also cited.  

               Against this, learned counsel for the respondent seriously  contended that when the landlord has gifted away the premises, how  can this suit be maintainable  as he has ceased to be  the landlord.  Therefore, he is not entitled to a decree for eviction. In this  connection learned counsel for the respondent referred to a decision  of this Court in the case of M.M.Quasim v. Manohar Lal Sharma &  Ors. reported in AIR 1981 SC 1113.

               We have considered the rival submissions of the parties.  After weighing both the situations we are of opinion that once  the  respondent has been declared as trespasser by the Courts below  because there was no  subsisting  tenancy with the original landlord  then there was no need of  going into the matter of gift of the

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premises in question. In fact, at the time when the  suit was filed the  appellants were the owner of the premises in question and the decree  of  eviction was passed in their favour as the father of the respondent,  the original defendant No.1 did not contest the matter and  did not  prefer appeal. But respondent preferred the appeal which was  allowed by  appellate court. Aggrieved against that oder the  appellants filed writ petition. The High Court affirmed the decree of  eviction qua the appellants and Rustom D. Kumanna,  the original  defendant No.1. But since the respondent was also impleaded as a  party  and the case had not gone for trial the High Court remanded  the matter to the trial court to decide the question whether  Fali  Rustomji Kumana, the present respondent was a tenant or not.   When the High Court remanded the matter to the trial court, the trial  court recorded a finding that  there was no relationship of landlord  and tenant between the appellants and the respondent and that order  was  affirmed by the appellate court and the High Court did not differ  with finding in second round.  Once the decree of eviction has already  been granted against the original tenant and the finding has been  recorded that the respondent is not a tenant then gifting away of the  property by the original landlords to a third party becomes secondary  issue.  Since on remand by High Court the trial court has determined  his right qua the appellants and same being affirmed by the appellate  court and the High Court in second round, we are of opinion that the  question of gift which was raised   before Appellate  court and  the  High Court was a secondary issue.  If there was no relationship  between the landlords and the tenant then what is the right of the  tenant to challenge the ownership of the appellants?  More so in  peculiar facts of this case that in same suit a decree of eviction has  been passed  against his father  and it has become final because his  father did not challenge  the same and subsequently  he died in 1984.    Then in same suit a contrary decree was passed in favour of son who  in these very proceedings was found to be not  tenant.  In peculiar  facts of this  case, we cannot sustain inconsistent decrees in same  suit. It would be mockery of law.   As a general proposition of law  if  one has ceased to be landlord how can he seek a decree of eviction  on ground of personal bona fide need is correct.  But in peculiar facts  of this case, we cannot invoke this proposition when son  in same suit  was not found to be tenant and  father has been evicted.

               Thus having taken the above view of the matter we need  not go into the extended meaning of Section 14 of the Act or whether   the respondent was a licensee or whether a licensee can have a right  to continue in the premises by virtue of 1973 amendment to the Act.   Once it is held that there was no relationship of landlord and tenant  between the appellants and the respondent, all other questions are of  secondary issue. The primary issue was whether respondent can be  deemed as a tenant or not. Once it is found that the respondent is not  a tenant, then he has no right to challenge ownership of the  appellants as the appellants were already armed with a decree for  eviction against the original tenant \026 Rustom D. Kumana (father of  respondent). This is a sad commentary on the tenant -landlord relationship.   The  premises in question   was  leased out  to  the father of the  respondent in 1939 and the suit was filed for eviction in 1976.  But it  has not  seen the  successful end till this date.   For the last 30 years   the parties have been litigating. More than one generation  has  passed but still the  matter has been locked in the courts.   Therefore,  in order to put to an end to this litigation specially  when  the courts  below have already   taken a view  that there  is no  subsisting  tenancy between the appellants and the respondent, we cannot deny  the legitimate right of landlord  or his successor to the possession of  these premises.   The respondent is  in possession of the premises  even after the death of his father  in 1984, he shall  pay a sum of    Rs.50,000/- as compensation to the appellants/ their successor for  use and occupation of the premises in question

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               In view of the above discussions, we are of opinion the  view taken by learned Single Judge of the High Court of Bombay  cannot be sustained. We allow this appeal, set aside the order of the  learned Single Judge of the High Court and hold that respondent \026  Fali Rustomji Kumana was not a tenant of the landlords and he was a   trespasser and  as such, decree of eviction is granted against the  respondent \026 Fali Rustomji Kumana. The respondent is granted six  months time to vacate the premises in question  as he has been  occupying the premises in question for a long time. In case, the  respondent fails to vacate the premises in question on  the expiry of  the period of six months from today, then the appellants/ their  successor  shall be at liberty to get him evicted from the premises in  question by executing  this decree.  No order as to costs.