MAJOR HOMI RUSTOMJI DARUWALA Vs. PESI SORABJI DOODHA

JUDGEMENT

(1.) This Civil arises out of an application filed by the appellants herein under Section 13-AA of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Act, 1985, hereinafter referred to as the 'act'. The said section enables "the specified landlord" to recover possession from the tenant owned by him or by any member of his family on the ground that such premises are bona fide required by him for occupation by himself or by any member of his family. The specified landlord means a person who is a member of the armed forces of the Union or who as such member has duly retired. It is not in dispute the appellant is a specified landlord. The application was resisted on behalf of the respondents on two grounds: (1 He is not the sole owner, there are other co-owners who own the property; (2 in any event the requirement is, not bona fide. The trial court was of the view that there are other co-owners who own the property and, therefore, the appellant herein alone cannot found an action under Section 13-AA of the Act. It also went into the question of bona fide requirement and did not accept such requirement. Accordingly the application was dismissed. Aggrieved by the same the matter was taken up before the High court in revision. The High court solely concentrated on the issue whether the property is owned by him exclusively or whether the other co-owners also had ownership. It came to the conclusion that the fact there was mutation in the revenue records right from 11/02/1987, would not evidence the exclusive ownership of the appellant. Inasmuch as the releases stated to have been made in favour of the appellant by the sisters and brother are not supported by documentary evidence that mutation would be of no consequence. On this basis, it further proceeded to hold that the property is owned by several co-owners. Therefore, the appellant, one of the co-owners, cannot maintain an action under Section 13-AA of the Act. Thus, it concluded that the application was not maintainable. At this stage, we may point out thatthe question of bona fide requirement was not gone into. In the circumstances the Civil has come to be filed.

(2.) We have heard the party in person (the appellant) and the learned counsel for the respondent.

(3.) We are somewhat surprised to note the High court should have taken upon itself to decide whether valid releases had been made by his brother and sisters when it was not in issue. Having held that "it is true that since then the property stands in the name of the applicant alone" it should have given due credence to the revenue record which had come to be mutated. We say so because this record has presumptive value. Of course, such a presumption is rebuttable. Unless and until the release deeds were challenged, the court should not have embarked an inquiry as to the validity of the release. We are unable to discern from the records that there was any dispute as to the nature of the releases. Once this conclusion is arrived at, the question whether one co-owner can maintain an action under Section 13-AA of the Act pales into insignificance.