BAI AMINA Vs. ABDULREHMAN GULAM MOHAMAD MANSURI

JUDGEMENT

(1.) This appeal under Clause 15 of the Letters Patent is directed against the order of the learned single Judge of this Court summarily dismissing the first appeal of the appellants and as confirming the decree passed against the appellants by the learned Additional Principal Judge of the City Civil Ahmedabad in Civil Suit No. 3051 of 1978 Respondent No. 1 is the original plaintiff, the appellants and respondents Nos. 2 and 3 are the original defendants, in the said suit. For the sake of convenience, we will refer to the parties as original plaintiff and defendants - The dispute centres round possession of residential house situated in Kalupur ward No. 2 of this city especially its first floor. The defendants who are the mother and children are staying in the suit premises. The plaintiff is the father of defendants Nos. 2 to 6 and ex-husband of defendant No. 1. The plaintiff's contention is that he has divorced defendant No. 1 on 4-6-1977. That prior to divorce, the plaintiff and defendants were residing together but after divorce, the defendant No. 1 has no right to remain in possession of the premises as she is a divorced wife. Other defendants, viz., the plaintiff's children have no right to remain in possession of the premises as they were merely licensees and he has terminated their licences to stay in the premises. The suit was accordingly filed for possession on the strength of title the defendants treating them as ex-licenses whose licences are terminated and who have become trespassers. The learned trial Judge after recording evidence offered by the parties came to the conclusion that the defendants had no right to remain in possession of the premises against the wishes of the plaintiffs after defendant No. 1 was divorced on 4-6-1977 and as their licences are terminated by the plaintiff and as the plaintiff is entitled to restoration of possession, the suit was decreed against defendants Nos. 1, 2, 3 and 6. There was no decree against defendants Nos. 4 and 5 they were not in possession of the premises. This decree for possession was challenged by the concerned defendant by filing First Appeal No. 1446 of 1982 before this Court. The said appeal came to be dismissed summarily by one word "dismissed". As stated earlier, this order has been challenged in the present Letters Patent Appeal.

(2.) The learned Advocate for the appellants vehemently submitted that the learned trial Judge was patently in error when he took the view that the defendants are trespassers and are liable to be evicted from the suit premises. He invited our attention to the admitted facts of the case, which are as under : (a) The suit premises were originally taken on lease by the plaintiff's father Gulam Ali Mansuri; (b) The said original tenant expired on 20-12-1948. (c) At the time of his death, the plaintiff, i.e., the tenant's son, defendant No. 1 (plaintiff's wife), i.e., daughter-in-law of the original tenant and certain children born to the plaintiff and defendant No. 1, out of lawful wed-lock, were staying in the suit premises at the time of tenant's death. (d) Other children who were staying in the suit premises at the relevant time on 20-2-1948 are not parties to the present proceedings and have left the premises and hence the appellants say nothing about it. Other defendants Nos. 2 to 6 were born to the plaintiff and defendant No. 1 after 20-12-1948. There is no dispute about these facts stand well established on record. In the light of this admitted position, the learned Advocate for the appellants submitted that appellant No. 1 - ex-wife of the plaintiff had become co-tenant with the plaintiff of the suit premises by virtue of Sec. 5(11)(c) of the Rent Act as applicable to the premises in those days. He invited our attention to the fact that the Rent Act was made applicable to the Ahmedabad City on 19-1-1948. That 11 months thereafter, the original tenant died in the suit premises. At the time of his death, the plaintiff on the one hand and defendant No. 1-his wife, on the other, were residing with the tenant. They, therefore, become entitled to become co-tenants of the suit premises by virtue of Sec. 5(11)(c) of the Rent Act as applicable in those days. The said provision, at the relevant time, stood as under :

(3.) The learned Counsel for the respondents was not in a position to controvert this legal position, which has well sustained on record in the light of the admitted facts as mentioned by us earlier. In these circumstances, the decree for possession as passed by the learned trial Judge in favour of the plaintiff cannot be sustained. We, therefore, allow this appeal, set aside the decree of dismissal of appeal as passed by the learned single Judge and also the decree for possession as passed by the learned trial Judge and dismiss the suit of the respondent-plaintiff. However, in view of the relationship that existed between the defendant No. 1 on the one hand and the plaintiff on the other as they were husband and wife prior to divorce and the admitted relationship of the father and children that exist between the plaintiff on the one hand and defendants Nos. 2 to 6 on the other, we deem it fit to direct that all the parties will bear their own costs all thought. No orders on civil application.