JAYANTKUMAR RAMPRASAD MEHTA Vs. LILAVATIBEN WD O DEVPRASAD PITAMBERDAS MEHTA
LAWS(GJH)-1966-6-1
HIGH COURT OF GUJARAT
Decided on June 29,1966

JAYANTKUMAR RAMPRASAD MEHTA Appellant
VERSUS
LILAVATIBEN WD/O DEVPRASAD PITAMBERDAS MEHTA Respondents

JUDGEMENT

P.N.BHAGWATI - (1.) THIS Revision Application arises out of a suit filed by the plaintiff against the defendant to recover possession of the second floor of a building situate in Khadia Golwads Khadki Ahmedabad. It was common ground between the parties that the suit building originally belonged to one Mahalaxmi. Mahalaxmi had three sons namely Hariprasad Ramprasad and Devprasad. Devprasad predeceased Mahalaxmi leaving him surviving his widow the plaintiff and a son Hirendrakumar. The defendant is the son of Ramprasad. Mahalaxmi died in 1938 and on her death all the properties belonging to her including the suit building were inherited by her sons Hariprasad and Ramprasad and her grandson Hirendrakumar in equal shares. In or about 1940 the properties which were inherited by Hariprasad Ramprasad and Hirendrakumar were partitioned amongst them and under the partition the suit building came to the share of Hirendrakumar and Hirendrakumar became the sole owner of the suit building Hirendrakumar died about three years later in 1943 having duly made his will under which he bequeathed the suit building to his mother the plaintiff. The plaintiff thus became the sole owner of the suit building from 1943. Now it appears that in or about 1941 the defendant who was married by that time wanted to live separately from his father Ramprasad and Ramprasad therefore requested the plaintiff to let out the second floor of the suit building to the defendant on rent as a monthly tenant. Hariprasad and his son Shantiprasad were present at the time when this request was made by Ramprasad to the plaintiff. The plaintiff acceded to the request of Ramprasad and let out the second floor of the suit building to the defendant as a monthly tenant from 1st August 1941 at a rent of Rs.14/per month Rs. 2/per month being payable by way of electricity charges. Of course when the plaintiff thus let out the second floor of the suit building to the defendant the plaintiff acted for and on behalf of Hirendrakumar since Hirendrakumar was at that time the owner of the suit building. But on the death of Hirendrakumar the suit building was succeeded to by the plaintiff and the defendant became the tenant of the plaintiff. The defendant paid to the plaintiff rent in respect of the second floor of the suit building upto 30th June 1947 but thereafter failed to pay any rent to the plaintiff. The plaintiff addressed a notice dated 31st December 1952 to the defendant calling upon the defendant to pay up the arrears of rent but the defendant did not comply with the requisition contained in the notice. The plaintiff therefore gave another notice to the defendant on 16th October 1956 terminating the tenancy of the defendant on 30th November 1956 and calling upon the defendant to pay up the arrears of rent from 1st July 1947. The defendant failed to comply with the requisition contained in this notice too and the plaintiff was ultimately constrained to file the present suit against the defendant in the Small Causes Court Ahmedabad to recover possession of the second floor of the suit building on the ground of non-payment of rent. The plaintiff also claimed in the suit arrears of rent from 1st October 1954 upto 30th November 1956 and mesne profits from 1st December 1956 upto 20th December 1957. The plaintiff did not claim arrears of rent for the period prior to 1st October 1954 since that claim was beyond the period of limitation. The defendant in his written statement disputed the relationship of landlord and tenant and contended that the suit building continued to belong to the three branches of Hariprasad Ramprasad and Devprasad as there was no partition amongst the said three branches as alleged by the plaintiff and the defendant was accordingly in possession of the second door of the suit building in his right as a co-parcener of the family consisting of the said three branches. The defendant denied that he had at any time paid any rent to the plaintiff in respect of the second floor of the suit building and asserted that there being no relationship of landlord and tenant between the plaintiff and the defendant there was no question of paying any rent to the plaintiff. On these pleadings the main issue which arose for determination between the parties was whether the defendant was a tenant of the plaintiff. The decision of the entire case depended on the determination of this issue since if the defendant was a tenant of the plaintiff the defendant being admittedly in arrears of rent was not entitled to the protection of the Rent Act whereas if the defendant was not a tenant of the plaintiff the plaintiff was not entitled to evict the defendant since the claim of the plaintiff in the suit was based on the relationship of landlord and tenant. Before the hearing of the evidence commenced the plaintiff produced along with his list Exhibit 27 a letter dated 6th July 1943 addressed by the defendant to the plaintiff but this letter was not admitted by the defendant and the defendant contended that it was not in his handwriting and was not written by him. The plaintiff also produced subsequently by another list Exhibit 31 a letter dated 28th November 1958 addressed by the defendant to the plaintiff. THIS letter was unlike the earlier letter dated 6th July 1943 not disputed by the defendant and the plaintiff therefore prayed that it may be marked as an Exhibit and it was accordingly marked as Exhibit 32. The plaintiff thereafter examined herself and Shantiprasad as witnesses on her behalf while on the other side the only witness examined was the defendant. The learned trial Judge on a consideration of the evidence came to the conclusion that the defendant was not a tenant of the second floor of the suit building but that he was in occupation of the same as a licensee and the suit of the plaintiff based as it was on the relationship of land lord and tenant was therefore liable to fail and he accordingly dismissed the suit. The plaintiff being aggrieved by the decree of dismissal preferred an appeal in the District Court Ahmedabad and on the creation of the City Civil Court Ahmedabad this appeal was transferred to the City Civil Court and was ultimately heard by a learned Judge of that Court. The learned appellate Judge after carefully sifting the evidence came to the conclusion that the evidence given by the plaintiff and Shantiprasad deserved to be accepted and it was clearly established by that evidence that after the death of Mahalaxmi in 1939 a partition had taken place amongst the three branches of Hariprasad Ramprasad and Devprasad in 1940 and under that partition the suit building had gone to the share of Hirendrakumar and on the death of Hirendrakumar the plaintiff became the sole owner of the suit building and there was relationship of landlord and tenant between the plaintiff and the defendant which had been terminated by the plaintiff by the notice dated 16th October 1956. The learned appellate Judge in coming to this conclusion relied on the letter dated 28th November 1958 Exhibit 32 in which the defendant had admitted that under a family arrangement the suit building had gone to the share of the plaintiff. The learned appellate Judge also held that the letter dated 6th July 1943 the authorship of which was denied by the defendant was proved by the evidence of the plaintiff and Shantiprasad to have been written by the defendant and he accordingly accepted that letter as a genuine letter addressed by the defendant to the plaintiff and held that it was rightly admitted in evidence and marked Exhibit 54 by the learned trial Judge and relied on that letter in coming to the conclusion that the defendant was a tenant of the plaintiff. The learned appellate Judge thus negatived the defence of the defendant that he was in possession of the second floor of the suit building in his right as a co-parcener of the joint family and upheld the claim of the plaintiff to recover possession from the defendant and passed a decree for eviction and arrears of rent against the defendant. The defendant thereupon preferred the present Revision Application in this Court.
(2.) THE first contention urged by Mr. K. S. Nanavati learned advocate appearing on behalf of the defendant in support of the Revision Application was that the defence of the defendant raised a serious question of title to the suit building namely whether the plaintiff was the sole owner of the suit building or the suit building continued to belong to the joint family consisting of the three branches of Hariprasad Ramprasad and Devprasad and the Small Causes Court Ahmedabad had no jurisdiction to decide such question of title and the decree passed by the learned appellate Judge was therefore without jurisdiction and a nullity. This contention obviously depends on the true interpretation of sec. 28 of the Rent Act for it is under that section that the jurisdiction of the Small Causes Court Ahmedabad was invoked and it is that section which defines the limits of the jurisdiction of that Court. Sec. 28 provides that notwithstanding anything contained in any law the Court of Small Causes in Ahmedabad shall have jurisdiction to entertain and try any suit between a landlord and a tenant relating to the recovery of possession of any premises to which any of the provisions of Part II of the Rent Act apply and to deal with any claim or question arising out of the Rent Act or any of its provisions. Now the suit filed by the plaintiff against the defendant was clearly a suit between a landlord and a tenant relating to the recovery of possession of premises to which the provisions of Part II of the Rent Act applied and the learned Additional Judge Small Causes Court who heard the suit as a Court of first instance had therefore jurisdiction to entertain and try the suit under sec. 28. THE case with which the plaintiff came to the Court was that she was the landlord and the defendant was her tenant and she sought to recover possession of the second floor of the suit building from the defendant on the ground that the tenancy of the defendant having come to an end she was entitled to recover possession of the second floor of the suit building from him It is undoubtedly true that the defendant denied that he was a tenant of the plaintiff but that could not oust the jurisdiction of the Small Causes Court under sec. 28. It is now well-settled that the suit contemplated in sec. 28 is not only a suit between a landlord and a tenant in which that relationship is admitted but also a suit in which it is claimed that the relationship of a landlord and a tenant within the meaning of the Rent Act subsists between the parties though such claim may be denied by the defendant. (Babulal Bhurmal v. Nandram Shivram 60 Bom. L. R. 954). If the position were otherwise the result would be that where a suit is filed by a landlord against a tenant for recovery of possession of premises the tenant would be able to oust the jurisdiction of the Courts specified in sec. 28 by a mere denial of the tenancy. THE landlord would then have to go to the ordinary Civil Court and the ordinary Civil Court would have to determine the nature of the relationship between the parties and if the ordinary Civil Court finds that the relationship between the parties is that of a landlord and a tenant the suit would then once again have to go before the Courts specified in sec. 28. THE Court should certainly be slow to accept a construction which leads to such multiplicity of proceeding. Moreover it is difficult to see how a suit which on the face of the plaint is a suit by a landlord to recover possession of premises from a tenant can be filed in the ordinary Civil Courts in defiance of the mandatory provision contained in sec. 28. THE jurisdiction of a Court to entertain a suit depends on the averments made in the plaint and if the averments in the plaint show that the suit is by a landlord against a tenant to recover possession of premises the Courts specified in sec. 28 would have jurisdiction to entertain the suit. THE defendant may dispute the relationship of a landlord and a tenant which is averred in the plaint but that cannot affect the jurisdiction of the Courts specified in sec. 28. Now the denial of the relationship of a landlord and a tenant may be on several grounds. It may be based on the allegation that the defendant is not a tenant but is a licensee or it may be based on the allegation that the plaintiff is not the owner of the premises and is therefore not the landlord. It may also arise by reason of the defendant setting up title to the premises in himself. It is clear that whatever be the ground on which the denial of the relationship of a landlord and a tenant is based the Courts specified in sec. 28 trying the suit would have to examine the validity of such ground for the purpose of determining whether the relationship of a landlord and a tenant subsists between the parties. THE question of title to the premises may therefore have to be gone into by the Courts specified in sec. 28 for the purpose of determining the question whether the defendant is a tenant of the plaintiff. THE question as to whether the defendant is a tenant of the plaintiff is a question arising out of the Rent Act and the Courts specified in sec. 28 have undoubted jurisdiction to decide that question and if for the purpose of deciding such question it is necessary to go into the question of title to the premises the Courts specified in sec. 28 can certainly inquire into that question. But it must be remembered that this inquiry into the question as to title to the premises would be merely an incidental inquiry for the purpose of deciding the main question between the parties namely whether the defendant is a tenant of the plaintiff which is a question arising out of the provisions of the Rent Act. THE determination of the question of title to the premises being merely an incidental determination would not preclude the aggrieved party from suing in the ordinary Civil Courts to establish his title to the premises and that is in terms provided by sec. 29A of the Rent Act which says that nothing contained in sec. 28 shall be deemed to bar a party to a suit mentioned therein in which a question of title to premises arises and is determined from suing in a competent Court to establish his title to such premises. It may be noticed that this section clearly postulates that a question of title to premises may arise in a suit between a landlord and a tenant relating to recovery of rent or possession of premises and when it arises it can be determined by the Courts specified in sec. 28 THE safeguard which this section provides is that the determination of such question of title by the Courts specified in sec. 28 shall not be final and conclusive but any aggrieved party may sue in a competent Civil Court to establish his title to the premises despite the determination of the Courts specified in sec. 28. THE defendant in the present case disputed the relationship of a landlord and a tenant on the ground that the plaintiff was not the sole owner of the suit building but that the suit building belonged to the joint family of which he was a co-parcener and the learned trial Judge as the Court of first instance and the learned appellate Judge as the Court of first appeal had therefore clearly jurisdiction to determine this question of title for the purpose of deciding whether the defendant was a tenant of the plaintiff. THE learned appellate Judge as the final Court of fact determined this question of title against the defendant and held that the relationship of landlord and tenant subsisted between the parties and though the defendant can by reason of sec. 29A sue in a competent Civil Court to establish his title to the suit building it must be held so far as the present suit is concerned that the defendant was a tenant of the plaintiff and the decree passed by the learned appellate Judge was within jurisdiction. Application dismissed.;


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