MOHMADHUSSAIN KAMALBHAI MOMIN Vs. SHOKATALI MUNSHI SHEKH

JUDGEMENT

(1.) The appellants are the plaintiffs who have filed Civil Suit No. 886/64 in City Civil Court Ahmedabad for obtaining possession of the suit premises which consists of a single room and which bear M.C. No 2558 of Tajpur Momnawad at Ahmedabad. The respondents claim that they are the sub-tenants in the premises ever since the year 1947 and have therefore acquired tenancy rights under sec. 15(2) of Bombay Rents Hotel and Lodging House Rates Control Act 1947 (Bombay Act LVII of 1947) (which is hereinafter referred to as the Act) and therefore they are not liable to be evicted from the suit premises. As against this the contention of the appellants (plaintiffs) is that the respondents (defendants) have entered into suit premises for the first time in the year 1956 as family members of the original tenant one Mahemudsha Chhotusha. The appellants further prayed that this original tenant Mahemudsha Chhotusha died some where before 8th April 1960 and therefore after the date of his death the respondents are not entitled to continue the possession of the suit premises.

(2.) The dispute between the parties has taken a very long course through different courts proceedings and therefore it would be necessary to state shortly the facts forming the background of the present litigation. These facts are as under:-

(3.) It is an admitted fact that the suit premises were leased by the appellants to the above referred Mahemudsha in the month of August 1947 at the rent of Rs. 10/per month. A few months thereafter a regular rent note was executed by said Mahemudsha as found at ex. 37 which is dated 26th January 1948 It is an admitted position that this rent note contains a clause prohibiting the tenant from sub-letting the premises. According to sec 108 clause (j) of the Transfer of Property Act a lessee has got a right to sub-let the premises taken by him on rent subject of course to a prohibition contained in a contract of lease. Such a prohibtion however was there according in the terms of the rent note ex. 3. The Bombay Rent Act of 1948 which came into force on 19-1-1948 however created a complete bar to the sub-letting of premises. Therefore even according to the provisions of the Rent Act the original tenant Mahemudsha had no right to create any sub-lease in the suit premises.