LILAVATI H HIRANANDANI Vs. USHA TONDON

JUDGEMENT

(1.) The dispute that is brought before this Court by the present petitioner concerns approximately about 2/3rd area of a flat which is a part of the property of Mazgaon Terrace Co-operative Housing Society. Respondent Usha Tondon sought relief of possession under the summary procedure as was provided by Section 41 of the Presidency Small Cause Courts Act, 1882 (hereinafter called "the Act"), as it stood prior to its amendment by Mah. Act XIX of 1976. She filed the present application dated November 29, 1966, asserting that the petitioner herein was a mere licensee and her licence had been put an end to by giving a notice of August 3, 1966. In reply to the said Summons, the petitioner raised the defence, including the protection as a tenant. It appears and it is not in dispute that under Section 42-A of the Act defence ol tenancy was tried and by an order dated August 17, 1973 the same was negatived. An appeal taken under Section 42-A of the Act failed, as is evident from the order of October 18, 1977. After the preliminary issue was so decided when the n after was taken up the petitioner resisted the order before the Court of Small Causes, Bombay, on the ground that the respondent was not entitled to any such order, she having ceased to possess the entitlement by reason of the fact that the property belonged to the Mazgaon Terrace Co-operative Housing Society, which is a Co-operative Housing Society. By the impugned order the Court of Small Causes turned down that objection under Section 43 relying upon the earlier order made under Section 42-A of the Act. That order was made on July 17, 1978, after which the present petition has been filed in this Court giving challenge to all these orders, i. e. one made under Section 42-A as well as under Section 43 of the Act.

(2.) It is not necessary for the purpose of this petition and also for the purpose of making the eventual order to enter upon the detailed submissions made by both the learned Counsel in support of the petition as also in opposition of the claim in the petition. Suffice it to say that originally the building concerned where respondent claims to have a tenanted flat was the property of one Syed Abdul Hamid Kadri. The said property was mortgaged with the trustees of one trust. A suit came to be filed, being Civil Suit No. 3 of 1958 in which the property was taken charge of by the Court Receiver. That suit was decreed in 1962 and in execution of that decree, the property was put on auction on October 6, 1965. Before the date of auction, it appears that a Co-operative Society i. e. Mazgaon Terrace Co-operative Housing Society Ltd., was registered some time on August 15, 1965. That society eventually gave a bid and purchased the property in auction. The respondent original applicant Smt. Usha Tandon, appears and claims to have been admitted to be a member of that society. It further appears that she is claiming that the entire property was allotted to her some time in November 1965. It may be mentioned that the petitioner is claiming that she was also entitled to be the member and she further asserts that she has paid the membership fees of that Society. During the trial of the preliminary issue, one Denis Michael Patrao has been examined who appears to have stated that he was the Secretary of the Society. He has stated that the respondent herein was a member of the society since the beginning. In the cross-examination, he has stated that negotiations were started after September 1963 when the High Court put up the building for sale. He was not possessed of the minutes of the Society and the record was with the Registrar. The flats were to be allotted to persons who were occupying as tenants as the first choice and then to the actual occupiers or licensees with tenant's permission. The intending members were asked to pay certain amounts.

(3.) Admittedly, the matter was taken by the respondent under Chapter VII of the Act which deals with recovery of possession of immoveable property in summary proceedings contemplated by Section 41 of the Act. The proceedings herein are premissive and not compulsory. [See Bai Maherbai v. Pherozshaw, AIR 1927 Bom 556]. By very nature of an application, the same neither partake into by character of a suit nor the order sought be treated as decree. [See Nalinakhya v. Shyam Sunder, AIR 1953 SC 148J. Under Section 43, the party is entitled to an order for possession only upon Court's satisfaction that such party is entitled to apply under Section 41 of the Act. The explanation to Section 43 shows that the occupant, against whom such an order is sought, can show that the person claiming an order for possession should not be granted the relief by reason of the fact that the initial title has been determined previous to the date of the application. It is implicit in Section 43 that not only the person claiming to apply under Section 41 should possess the initial entitlement to have that order but also the party against whom such an order is sought can show cause in summary manner that there is a change in that title so that summons should be discharged.