ASRAFBHAI SATTARBHAI Vs. ABIDALI FIDAHUSEN BHARMAL & 3

JUDGEMENT

(1.) THE present second appeal under section 100 of the Code of Civil Procedure has been preferred by the appellant herein original defendant No.2 to quash and set aside the impugned judgment and decree dated 06/01/2000 passed by learned 1st Joint Civil Judge (J.D.) and JMFC, Amreli in Regular Civil Suit No.75 of 1995 as well as impugned judgement and order dated 30/07/2010 passed by learned Principal District Judge, Amreli in Regular Civil Appeal No.6 of 2000, by which, learned Appellate Court has dismissed the said appeal preferred by the original defendants confirming the judgement and decree passed by learned Trial Court decreeing the suit filed by the original plaintiffs.

(2.) THAT the respondent Nos.1 and 2 herein - original plaintiffs instituted Regular Civil Suit No.75 of 1995 against the appellant herein original defendant and others for recovery of possession, declaration and permanent injunction with respect to suit property. It was the case on behalf of the original plaintiffs that as such the suit property was given on lease to one Karimdada and after his death, one Amnaben was residing in the suit premises as tenant and pursuant to the document exhibited at Exh.49, which was executed by Amnaben, possession of suit property was to be handed over to the original plaintiffs landlords. Now it was the case on behalf of the original plaintiffs that the defendants have encroached upon the suit property after the death of Amnaben and, therefore, original plaintiffs instituted the aforesaid suit for the aforesaid reliefs. That the suit was resisted by original defendants by filing written statement contending inter alia that at the time of death of Amnaben, defendants were residing with the tenant Amnaben and, therefore, they were in occupation and possession of the suit property after death of Amnaben. It was the case on behalf of the original defendants that their status as tenants has been established in the earlier suits being Regular Civil Suit Nos.235/1975; 82/1966 of 83/1966 and even infact the original defendants were in possession of suit property, which came to be established by decisions of the aforesaid Regular Civil Suits and, therefore, it was denied that the defendants are in illegal and unauthorized possession of the suit property. Learned Trial Court decreed the suit vide judgement and decree dated 06/01/2000 and directed the original defendants to hand over peaceful and vacant possession of the suit premises i.e. one room and osari on first floor to the original plaintiffs and also directed the original defendants to pay mesne profit at the rate of Rs.4/ - per month. Learned Trial Court also granted declaration that the original plaintiffs are in possession of front portion of the ground floor i.e. having 72 fts. and 6 fts. with southern side and that the defendants have only right of way to go to their rented premises, which is on the ground floor and which is in their possession. Learned Trial Court also granted permanent injunction as prayed for.

(3.) MR .M.B.Parikh, learned advocate appearing on behalf of the appellant herein original defendant No.2 has vehemently submitted that both the Courts below have materially erred in passing decree for possession and directing the appellant herein original defendant No.2 to hand over peaceful and vacant possession of the first floor of the suit premises to the original plaintiffs. It is submitted that as such the appellant herein original defendant No.2 was in possession of the suit property at the time of death of Amnaben and, therefore, considering section 5(11)(c) of the Bombay Rent Act, the appellant herein can be said to be tenant as the appellant was in occupation and possession of the suit premises as tenant and both the Courts below have materially erred in passing decree for possession. Mr.Parikh, learned advocate appearing on behalf of the appellant herein original defendant No.2 has further submitted that as such the appellant herein original defendant No.2 was in possession of the suit property is established in the decisions of the earlier suits being Regular Civil Suit Nos.235/1975; 82/1966 of 83/1966 and, therefore, both the Courts below have materially erred in holding that the possession of the appellant herein is illegal and both the Courts below have materially erred in passing decree for possession.