MADHAVJI MEGHAJI Vs. LALJI PURSHOTTAM

JUDGEMENT

(1.) This appeal is directed against the judgment and decree of the learned District Judge Kutch in civil regular appeal No. 21 of 1964 allowing the appeal and setting aside the decree of the lower Court in regular civil suit No. 224 of 1962 and decreeing the plaintiffs suit for possession of the suit premises.

(2.) The facts giving rise to this appeal briefly stated are as under :- The house bearing municipal census Nos. 705 and 706 described in details in the plaint belonged to the respondent Lalji Purshottam. The said house was mortgaged with possession for a period of 99 years to Lohana Saraswati Kanyashala hereafter referred to as the mortgagee as per mortgage deed Ex. 40. The mortgage deed specifically permitted the mortgagee to lease out the said property during the subsistence of the mortgage. The mortgagee agreed to lease in favour of the present appellant Thacker Madhavji Meghaji. The lease was from month to month and the rent was fixed at Rs. 12/per month. Thereafter on 15-3-1962 as per document ex. 44 by an agreement between the mortgagor and the mortgagee reconveyance deed was executed under which on payment of Rs. 2 0 the mortgagee agreed to release the mortgaged property from possession. A notice Ex. 41 was given by the trustees of the Mandal to the present appellant informing him about the said reconveyance deed. Subsequently the present respondent gave a notice E5x. 38 asking the appellant to hand over possession of the property on the ground that he required the suit house for his reasonable and bona fide personal use and that certain repairs were required to be effected in the house which could not be done unless the house was vacated by him. As the lessee that is the present appellant refused to hand over possession a suit was filed in the Court of the learned Civil Judge Senior Division Bhuj for recovering possession on the ground that the plaintiff required the suit premises for bona fide reasonable use. It was also averred by the plaintiff that there was no relationship landlord and tenant between him and the defendant. The defendant-appellant by his written statement contested the suit. He contended that the redemption of the house by the plaintiff did not affect his tenancy rights. He stated that the was ready and willing to pay the rent which was fixed at Rs. 12/per month He denied that the plaintiff required the premises reasonably and bona fide for his personal use. He stated that the plaintiff had enough property in his possession for accommodating his family. He contended that the tenancy was not legally terminated and that he was protected by the provisions of the Rent Control Act. He also stated that even though the suit appeared to be brought under the Bombay Rent Control Act the plaintiff had alleged that there was no relationship of landlord and tenant between the parties and therefore the defendant contended that the plaintiff should pay full court fee stamp on the market value of the property regarding which possession was sought. From the pleadings of the parties the learned Judge framed issues at Ex. 34. the learned Judge gave his finding on these issues and held that the plaintiff did not require the suit premises for his personal use and occupation reasonably and bona fide. He also held that if a decree for possession was passed greater hardship would be caused to the defendant. He held that the tenancy of the defendant was not legally terminated. On the findings on these issues the learned Civil Judge dismissed the suit. Against the said judgment and decree an appeal was preferred in the District Court at Bhuj. At the time of the appeal the defendant again gave an application Ex. 8 Bringing to the notice of the Court that the court fee stamp paid by the appellant-plaintiff on the appeal memo was not adequate and therefore the appeal should be dismissed. Thereafter the Court directed the plaintiff who was appellant in that appeal to pay proper court fee stamp after valuing the property which the plaintiff did. On merits the learned District Judge was of the opinion that the suit was not between the landlord and tenant but it was a suit on title for possession of property. The learned Judge therefore was of the opinion that it was not necessary to decide whether the plaintiff required the suit premises for reasonable and bona fide personal use and decreed the plaintiffs suit for possession. Against the said judgment and decree of the District Court decreeing the plaintiffs suit for possession the present appeal has been preferred by the original defendant to this Court.

(3.) Mr. Mayur Pandya learned advocate appearing for the appellant raised several contentions. He submitted that the whole suit was fought in the trial Court on the basis of the tenancy existing between the parties. He urged that the defendant in his written statement had at the outset urged that even though the suit appeared to be between the landlord and tenant as the plaintiff had alleged that there was no relationship of landlord and tenant proper court fee was not paid and that the plaintiff should be asked to pay the court fee on the market value of the property. However the learned Judge did not frame any issue with regard to the adequacy of the court fee paid by the plaintiff nor the learned Judge raised any issue regarding the nature of the suit. Mr. Pandya urged that all the issues framed by the trial Court clearly go to show that the suit was fought on the basis of a lease between the parties and under the circumstances if the appellate Court wanted to treat the suit on the basis as if it was between the owner and trespasser the plaint should have been suitably amended. He made a grievance that even when the defendant gave an application Ex. 8 to the learned District Judge Bhuj for directing the plaintiff-appellant in that appeal to pay adequate court fee the learned District Judge without hearing him accepted the valuation put on the property by the plaintiff and accepted deficit court fee not only on the appeal memo but also on the plaint without making proper amendment of the plaint itself as required under law. Mr. Pandya therefore urged that the whole decree of the learned District Judge was vitiated by the irregularity and illegality committed by him and this decree deserved to be set aside on that point alone. On merits Mr. Pandya urged that the original mortgage Ex. 40 was for a period of 99 years and one of the terms of the mortgage deed specifically permitted the mortgagee to create a lease with regard to the said property during the subsistence of the mortgage. He urged that in pursuance of the said tern in the mortgage deed when the mortgagee had created a lease in favour of the original defendant it was not open to the mortgagee to enter into an agreement with the mortgagor so as to defeat the right of the tenant. He urged that even after the mortgage was redeemed by the mortgagor as per terms mentioned in Ex. 44 the rights of the tenant would continue and unless the tenancy was terminated by a proper notice as envisaged in sec. 106 of the Transfer of Property Act the present suit would not be maintainable.