NAFISABEN Vs. JOHN ALIAS ZENUB ABDULKADAR

JUDGEMENT

(1.) The petitioner in these proceedings is the original first defendant. The first respondent is the original plaintiff and respondents 2 3 and 4 were original defendants Nos. 2 to 4. The name of respondent No. 2 was deleted after this Civil Revision Application was filed. The plaintiff fled a suit against the four defendants in the Court of the Civil Judge Senior Division. Surat. That suit was Regular Civil Suit No. 1624 of 1972. The plaintiffs case as set out in the plaint was that he was the owner of a building situated in Surat. On the western side of the second floor of that property one Sakinabanu Gulamhusen Songadhwala was the occupant and she was the statutory tenant in respect of those premises. Sakinabanu died on 2/09/1972 Sakinabanu had no son and the defendants to the suit namely her daughter her daughters son and other relations who were defendants in the suit had according to the plaint come to the suit premises only to attend to the obsequial ceremonies in connection with the death of Sakinabanu. It was the contention of the plaintiff in that suit that as the deceased Sakinabanu was a statutory tenant none of heirs of the deceased had any right in the suit premises and though the defendants had come to the suit premises in order to attend the obsequial ceremonies after the ceremonies were over they continued to occupy the premises out of mala fides and with the intention of occupying the suit premises. The defendants are alleged to have locked up the suit premises. It was the plaintiffs case that in spite of repeated requests by the plaintiff to hand over possession of the suit premises the defendants had not done so and according to the plaintiff the possession of the defendants of the suit premises was as trespassers and the defendants had committed a criminal offence in continuing to be in possession of the suit premises. In paragraph 4 of the plaint it was specifically averted that since the defendants were trespassers in the suit premises the suit was filed on title to recover possession of the suit premises from the defendants. It was alleged that the cause of action arose to the plaintiff when the obsequial ceremonies in connection with the death of the deceased Sakinabanu were completed and thereafter when a notice dated 8/12/1972 was served upon the defendants calling upon them to hand over peaceful and quiet possession of the suit premises and the defendants failed and neglected to hand over possession of the suit premises.

(2.) On these averments the plaintiff prayed that peaceful possession of the premises should be handed over from the defendants to the plaintiff after granting a declaration to the plaintiff that the possession of the defendants in the suit premises was as trespassers.

(3.) The suit was filed on 29/12/1972 It appears that till 1975 the suit was not disposed of but when the Court of Small Causes was set up at Surat along with other matters under the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (hereinafter called the Act) this suit was transferred to the newly established Small Causes Court and the suit was numbered as Small Cause Court Suit No. 1289 of 1975. The learned Judge in the Small Causes Court considered the question whether the defendants were tenants within the meaning of sec. 5 (11) (c) of the Act and he came to the conclusion that the first defendant who was the daughter of the deceased Sakinabanu was residing with Sakinabanu when the deceased Sakinabanu died and hence under sec. 5 (11) (c) of the Act she became a tenant in the suit premises. He there fore held that the case of the plaintiff that the defendants were in possession of the suit premises as trespassers fell to the ground and it had been proved on the evidence led in the case that defendant No. 1 was a tenant in the suit premises under sec. 5 (11) (c) of the Act and hence there was no question of the defendants being held to be trespassers in the suit property. It was the case of defendant No. 1 that she along with her mother Sakinabanu her husband and daughters was residing in the suit premises. It was her further case that her husband used to go to Hong Kong for earning his livelihood and whenever he used to come to Surat he used to reside with the first defendant in the suit premises. Oral and documentary evidence was led by defendant No. 1 to establish that defendant No. 1 had been residing with her mother Sakinabanu in the suit premises from 71958 to 1971 at least so far as documentary evidence was concerned. and it was on the acceptance of this evidence as reliable evidence that the learned Judge in the Small Causes Court ultimately dismissed the suit of the plaintiff. It must be noted that after the suit was transferred from the Court of the Civil Judge Senior Division Surat to the Small Causes Court the plaintiff had not raised any objection that the suit was not governed by the Act and the Small Causes Court had no jurisdiction to try the suit. On the contrary he led evidence before the Court in order to establish his case that the defendants were trespassers in the suit property.