AMBALAL MAGANLAL KHALAS Vs. VASANTLAL CHIMANLAL KHALAS

JUDGEMENT

(1.) THE petitioner instituted P.S.R.P Suit No. 19 of 1987 in the Court of Small Cause, Court No. 10, at Ahmedabad, wherein the case of the petitioner that the respondents, not being the tenants in the suit property must be ordered to deliver the possession thereof to the petitioner was dismissed mainly on the ground that in the previous HRP Suit No.3057 of 1980, the petitioner had suppressed the facts of respondents' occupation of the suit property. However, the impugned judgment, approved the fact that the respondents herein have not inherited any tenancy right over the premises of the applicant. In P.S.R.P proceedings under Section 41 of the Presidency Small Cause Court's Act, 1882 (for short "the Act") the issue is required to be addressed, keeping in view the relationship either as landlord and tenant, or licensor and licensee. In the present case, it is urged by the petitioner that by virtue of the respondents not being tenant as ruled in HRP Suit No. 3057 of 1980, they were licensee. Such issue was not addressed by the Court below and no findings came to be rendered. In that view of the matter, impugned order cannot be sustained. Since an application under section 41 of the Act has not been decided as above, it is deemed appropriate to remand the matter to the Court below to address the above issue in accordance with the law.

(2.) UNDER the above circumstances, petition partly succeeds. The impugned judgment and order is quashed and setaside. Application moved by the petitioner under Section 41 of the Act is remanded to the trial Court for deciding afresh, after giving appropriate opportunity to all the concerned in accordance with the law.