& Anr Vs. Fali Rustomji Kumana  Insc 509 (27 September 2005)
Kumar & A.K. Mathur A.K. Mathur, J.
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.
facts which are necessary for the disposal of this appeal are as under.
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.
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.
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 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.
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.
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.
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 petitioner
does give that undertaking before this court.
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.
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." 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 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.
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:
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.
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:
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
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.
the admitted position that Rustom D. Kumana was 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.
so far as the tenancy rights of the original tenant/defendant no. 1 were
concerned, the same came to an end.
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.
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 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.
a declaration has been given against him that there exists no relationship of
landlord and tenant.
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
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.
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.
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.
have considered the rival submissions of the parties.
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 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.
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.
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.
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.
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 Rustom D. Kumana (father of
is a sad commentary on the tenant -landlord relationship.
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 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 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 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.