MADHUBEN NATWARLAL Vs. PRAJAPATI PARSOTTAM TULSIDAS

JUDGEMENT

(1.) Being aggrieved and dissatisfied by the judgment and decree dated 23/01/1990 by the District Judge Surendranagar is Regular Civil Appeal No 107 of 1986 the appellants original defendants have filed this second appeal.

(2.) The respondent (plaintiff) had filed Regular Civil Suit No 75 of 1984 before the Civil Judge (J D ) Surendranagar against the appellants for recovering the possession of the suit premises which consist of one room admeasuring 15 X 13 situated at Joravarnagar. It was contended by the plaintiff that deceased Jamnadas Chaturbhai was a tenant of the said premises He had expired on 21/02/1953 without leaving any near relatives on the death of the tenant the appellant (defendants) trespassed upon the said premises and took possession of it That suit was dismissed by the learned Judge by holding that the defendants were near relatives of the deceased Jamnadas and they were residing with him to three months prior to his death and therefore they would be tenants of the suit premises Against that judgment and decree the respondent preferred the afore- said appeal before the District Judge Surendranagar who arrived at the conclusion that the case of the defendants that they have derived their tenancy rights under Sac 5(11)(c) of the Bombay Rent Act after the death of deceased tenant Jamnadas cannot be believed because they were not residing with the deceased tenant prior to three months of his death. The learned Judge considered the fact that the say of the defendants that they resided with the deceased Jamnadas is totally false and baseless in view of the evidence which he has discussed in his judge ment He therefore allowed the appeal and decreed the plaintiffs suit

(3.) Mr. Bavishi learned Advocate appearing on behalf of the appellants vehemently submitted that the defendants should be considered as family members of deceased Jamnadas For this purpose he has relied upon the following pedigree which is gives in the appeal memo : @@@ Bogha ------------------------------------------------------ Naran Gokal Chatur Ranchhod Jamnadas ----------------------------------- (Deceased Orig. tenant) Khemchand Natvarlal ------------------------------------ Madhuben Rajendra Lalit (Defts. Nos. 1 to 3 respectively) According to his submission as the defendants are nephews of the deceased they should be considered as family members of the deceased and therefore they are protected under Sec. 5(11)(c) of the Rent Act @@@