BHAGIRATHIBEHN DAULATRI JOSHI Vs. SHANTILAL MADHAVJI RATHOD

JUDGEMENT

(1.) This revision application is filed by the petitioner-defendant against the decree of eviction passed by the Trial Court and confirmed by the appellate Court.

(2.) To appreciate controversy in question few relevant facts may now be stated: The plaintiff is the owner of the suit property comprising of a room, Osari and a kitchan in a building called "Prem Bhuvan" in the city of Jamnagar. It was the case of the plaintiff that the defendant was a tenant of the suit premises at a monthly rent of Rs. 6/-. Regular Civil Suit No. 432 of 1974 was filed by the plaintiff in the Court of the Civil Judge (Senior Division), Jamnagar against the defendant for recovery of possession of the suit premises inter alia on the ground that the plaintiff required the suit premises for reasonable use and occupation; the defendant had not used the suit premises without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit; and after coming into operation of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, (hereinafter referred to as 'the Act'), the tenant had acquired vacant possession of suitable residence and, therefore, he was liable to be evicted under the provisions of Section 13 (1) (1) of the Act.

(3.) The defendant filed written statement at Exh. 9 and denied the facts stated and averments made in the plaint. It was denied that the plaintiff required the suit premises for reasonable use and occupation; there was non-user on the part of the defendant; the defendant acquired an alternative suitable residence and was liable to be evicted. She asserted that the property situated near Hansbai's Masjid was ancestral property and other family members had also right in the property. On partition, that propeety had gone to the share of her son Jitendra and under the circumstances, it could not be said that the defendant had acquired suitable alternative residence. It was also contended that Dolatrai Jethalal, husband of the defendant was the tenant of the suit premises and he died in the year 1969 leaving behind him several heirs who resided with him at the time of his demise. It was pleaded that all the heirs were tenants-in-common and were, therefore, necessary parties to the suit and since all of them were not joined as parties the suit was bad for non-joinder of necessary parties. The suit filed against the defendant was not maintainable at law and required to be dismissed on ground also.