MAHARANIDAS VALLABHDAS SHAH Vs. NARENDRA JIVRAM SHAH

JUDGEMENT

(1.) The present Second Appeal by the original defendants has been directed against the judgment and decree dated 29/08/1985, passed by the learned Assistant Judge, Vadodara, in Regular Civil Appeal No. 311 of 1984. By the impugned judgment and decree, the learned Judge dismissed the said appeal and confirmed the judgment and decree passed in favour of the respondentplaintiff.

(2.) Baroda Municipal Corporation constructed flats under middle income group scheme at Karelibaug, Budhadev Colony in Baroda. The plaintiff was allotted one of such flats, being flat No. 6/56 on the first floor on 1/08/1975. Pursuant to the hire purchase tenancy agreement at Exh. 39, the plaintiff was to pay monthly installment of Rs. 350.00 plus taxes to Baroda Municipal Corporation. The plaintiff was serving as Professor in Law Faculty, M. S. University, Baroda, at the relevant time, and in that capacity he was allotted a quarter in Vikram Baug, Pratapganj, on condition that on his retirement from service, he will have to vacate it. After retirement, the plaintiff desired to stay in Baroda and therefore he had applied for the flat and was accordingly allotted the above flat by the Baroda Municipal Corporation. Meanwhile, the defendants approached the plaintiff and requested him to give the said flat for a short period of about 1 to 11/2 years, as the defendants wanted to start their business in Baroda. The defendants promised to vacate the said flat, as and when called upon to do so by the plaintiff or on the retirement of the plaintiff from service. The plaintiff, relying upon such oral undertaking by the plaintiff, gave the said flat to the defendants purely on temporary basis for Rs. 400/ - per month plus taxes. The plaintiff retired from service with effect from 1/11/1980. The plaintiff, therefore, demanded possession of the suit premises from the defendants, one year prior to his retirement. The defendants, however, did not vacate the flat. The plaintiff was at last constrained to serve a notice dated 26/12/1980 on both the defendants and called upon them to vacate suit flat and hand over possession thereof to the plaintiff by 1/02/1981. The defendants neither replied nor complied with the said notice. The plaintiff, therefore, filed Regular Civil Suit No. 302 of 1981 in the Court of the Civil Judge (J.D.) at Baroda for recovery of possession of the suit flat. The plaintiff contended that ownership of the flat was of Baroda Municipal Corporation and the plaintiff could only be the owner in respect of the said flat as and when all the installments were paid and conveyancedeed was executed and registered in favour of the plaintiff. It is the case of the plaintiff that the suit flat belonged to the local body, i.e., Baroda Municipal Corporation and as such under Sec. 4 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ("Bombay Rent Act" for short), the Rent Court would have no jurisdiction to entertain the suit of the plaintiff. The plaintiff, therefore, filed the suit in the Civil Court under the Transfer of Property Act calling upon the defendants to vacate the suit flat and hand over the possession thereof and also the mesne profits.

(3.) The defendants by their written statement Exh. 23 denied the case of the plaintiff, contending, inter alia, that the Civil Court had no jurisdiction to entertain the plaintiff's suit; the suit was bad for non-joinder of necessary parties, i.e., Baroda Municipal Corporation. The defendants contended that the plaintiff was the owner of the suit flat and the relationship between the parties was that of landlord and tenant. The defendants denied that the defendants wanted the suit premises for a short period of about one year and they had orally promised to vacate the suit flat as and when demanded by the plaintiff or on retirement of the plaintiff. The defendants raised unconceivable and dishonest plea that the plaintiff had sold the premises in question to the defendants as plaintiff was unable to pay monthly instalment of Rs. 350.00 and as such the defendants had to pay monthly rent of Rs. 400.00 plus taxes which were to be treated as the instalments towards sale price and when all the instalments are paid by the defendants, they would become the owner of the suit premises and the plaintiff would execute the document in favour of the defendants, Admittedly, there is no writing or agreement to sale in this behalf. The defendants, however, contended that their possession of the suit premises was as the tenants. The defendants contended that they had not received any notice from the plaintiff. Copy of the notice is produced at Exh. 40 and the slips are at Exhs. 41 and 42. The Registered A.D. Slips are at Exhs. 43 and 44 on the record. The notice, Exh. 40, dated 26/12/1980 was sent at the business address of the defendants, as it appears from the record that the defendants have not been occupying the suit flat. The defendants admitted that the monthly rent of the suit flat was Rs. 400.00 plus taxes and they had remitted the amount of rent to the plaintiff, but he refused to accept the same. The defendants contended that the premises in question did not belong to Baroda Municipal Corporation and therefore the Civil Court had no jurisdiction to entertain the suit. The defendants, therefore, requested the Court to dismiss the suit.