SANDHI ABU AHMAD Vs. PYARALI JESA

JUDGEMENT

(1.) Heard learned Advocate Mr.N.C.Thakkar for petitioner - original defendant No.2 and learned Advocate Mr.Suresh M. Shah for respondents.

(2.) Present Civil Revision Application is filed by tenant. The HRP suit filed by plaintiff for eviction on the ground of subletting and tenant is in arrears of rent. The suit has been decreed in favour of landlord. Thereafter, appeal preferred by tenant which also dismissed. The contention raised by petitioner is that he is a tenant and not sub -tenant. The suit was decreed in favour of landlord on 30.4.1986 and appeal preferred by tenant has been dismissed on 31.7.1999.

(3.) Learned Advocate Mr. N. C. Thakkar has raised contention before this Court that in fact, suit was filed by landlord on two grounds; one is subletting and second is that tenant is in arrears of rent. He also submitted that in fact, there was no subletting and petitioner is not sub -tenant but, petitioner is tenant. The respondent No.8 (orig. defendant No.1) - Hasanali Badruddin was original tenant. The mother of defendant No.2 was working with defendant No.1, who stood as guarantor of petitioner for payment of rent. The sale deed executed between Pyarali Jesa and previous owner wherein it was not mentioned about sitting tenant. The municipal record shows that petitioner is tenant. The father of petitioner was working in police Department, who died in year 1972. Even in death certificate of father of petitioner produced on record before trial Court where residential address has been given of suit premises. The respondent No.8 (defendant No.1) was not examined before trial Court. He also submitted that according to Section 13(1)(e) of Bombay Rent Act, if sub -tenancy is to be proved, then exclusive possession of sub -tenant and transfer of suit premises after receiving valuable consideration is must have to be proved by plaintiff which has not been proved by plaintiff before trial Court, even not pleaded by plaintiff. The rent note of 1961 has been wrongly considered at Exh.52 which was not found on the stamp, even though it believed say of plaintiff, then suit is filed after a period of 8 years from the knowledge of plaintiff. Therefore, conduct of plaintiff not to immediately filed suit for possession from petitioner and meanwhile, accepting rent from petitioner which amounts to accepting petitioner as a tenant by plaintiff and no notice has been served to petitioner before filing suit by plaintiff against present petitioner.