ABDULAHED MOULVI ABDULSAMAD Vs. GULAMAHMED GULAMNABI BARDOLIWALA
HIGH COURT OF GUJARAT
Abdulahed Moulvi Abdulsamad
Gulamahmed Gulamnabi Bardoliwala
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A.A.DAVE, J. -
(1.)THIS revision application is directed against the judgment and decree of the learned Assistant Judge, Surat dismissing regular civil appeal No. 5 of 1967 with costs.
(2.)THE petitioners in the instant case are the original plaintiffs while the opponents are the original defendants. I will, therefore, refer to the parties as plaintiffs and defendants for the sake of convenience so far as this revision application is concerned.
The facts giving rise to this revision application briefly stated are that the plaintiffs own open land enclosed by a compound wall admeasuring 969 sq. yds. bearing Nondh No. 2033 in ward No. 12 at Surat. The suit property was originally let out to one Gulamnabi Vajirbhai Bardoliwala who was the father of defendants Nos. 1 to 10 and 12 and the husband of defendant No. 11, at the monthly rent of Rs. 40. A rent note was executed on behalf of Gulamnabi by defendant No. 3. The suit land was taken on rent for the purpose of manufacturing cotton chords or cotton strings from cotton yarn. According to the plaintiffs, Gulamnabi was prohibited from making any construction thereon or using the said property for any purpose other than the purpose of manufacturing cotton chords. However, Gulamnabi constructed a hut thereon and after stopping the business of cotton yarn, business of selling fuel wood was started by him and sometime the property was also used for the purpose of poultry farm. According to the plaintiffs, the defendants were bound by the terms and conditions of the rent note and that as they had contravened some of the terms of the rent note by erecting structures thereon and by using the property for a purpose other than that for which it was let and also by sub - letting the property, the plaintiff had become entitled to recover possession from the defendants. The plaintiffs, therefore, served the defendants Nos. 1 to 11 with a notice asking them to hand over possession. As the defendants failed to do so, the plaintiffs filed the suit to recover possession on the ground that the suit property was sub -let by the defendants and that they had contravened the terms of the tenancy. The plaintiffs also stated that they required the suit land bonafide and reasonably for the purpose of their business. The defendants by their written statements, Exs. 12, 13 and 16 denied various averments made in the plaint. They denied that any rent note was executed by Gulamnabi on 14 -6 -1951 as alleged by the plaintiffs. They also denied that the suit land was taken on rent for the purpose of manufacturing cotton chords only. They alleged that the said rent note was bogus and therefore, the defendants were not bound by the terms and conditions thereof. They further, contended that the suit for eviction was not maintainable as no notice was served upon defendant No. 12 who was one of the heirs of Gulamnabi. They denied that they had sub -let the suit premises to different persons or that they had started the business of selling fuel wood or that it was used for a poultry farm. They contended that Gulamnabi had taken the suit land for the purpose of erecting structures thereon and the structures were to be so erected for the purpose of doing business. They further contended that in the beginning they did the business of manufacturing cotton chords and subsequently for the last several years they were doing the business of selling fuel wood in the suit land and that the plaintiffs and their father were aware of the same. In fact, they had taken permission of the plaintiffs' father for starting such business. They, therefore, denied that they had violated the terms of the rent note as alleged.
(3.)FROM the pleadings of the parties, the learned trial Judge framed issues at Ex. 17. He held that deceased Gulamnabi had got the rent note executed through his son defendant No. 3, on 14 -6 -1951 as alleged. He also held that Gulamnabi and after his death, his heirs were bound by the terms and conditions of the rent note. He held that the suit land was used by the defendants for the purpose of doing business of fuel wood and thereby they had contravened the terms and conditions of the rent note. He also held that the defendants had unauthorisedly raised structures on the suit land in violation of the terms of the rent note. The learned trial Judge, however, held that the defendants were the contractual tenants of the suit land and as no notice for eviction was served on defendant No. 12, the said notice served upon other defendants was not sufficient to terminate the joint tenancy of the defendants. He negatived the allegation of the plaintiffs that the defendants had sub -let certain portion of the suit land. He also negatived the plaintiffs' submission that they required the possession of the suit land for their personal occupation. He also negatived the contention of the plaintiffs that the acts of waste were committed by the defendants. He, however, did not pass a decree for eviction in favour of the plaintiffs on the ground that no notice was given to defendant No. 12. He, therefore, dismissed the suit with costs. Against the said judgment and decree, an appeal was preferred in the District Court, Surat which was heard by the learned Assistant Judge. At the time of the hearing, it was further urged by the defendants that the plaintiffs were not entitled to get possession as their suit was barred by acquiescence. The learned Judge agreed with the findings recorded by the learned trial Judge and also held that the plaintiffs' suit was barred by acquiescence. He also held that the terms and conditions contained in the rent note Ex. 72 seemed to have been substituted by the terms and conditions incorporated in the receipt, Ex. 87 and hence the present suit could not be governed by the terms and conditions of the rent note Ex. 72. He, therefore, dismissed the appeal. Against the said judgment and decree of the learned Assistant Judge, the original plaintiffs have preferred the present revision application.
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