JAYANTILAL DAHYALAL Vs. BATUK BHAISHANKER

JUDGEMENT

(1.) The present revision application is filed under Sec. 29(2) of the Bombay Rent Act. The petitioner is the original plaintiff-landlord. Petitioner No. 2 is subsequently joined as an assignee of the suit premises in place of the original landlord and therefore he is added as petitioner No. 2 as per the order of this Court dated 2/03/1993. Defendants Nos. 1 and 2 were occupying the suit premises being a shop having main door abutting in the west on the station road at Chalala. As is averred in the plaint, there was a joint Hindu family of Bhanji Devji and his sons and they were the owners of the suit property since many years. They had gone with their families to Africa and said Bhanji Devji was managing the said ancestral property of the joint family. Bhanji Devji died in the year 1955. Subsequently, the joint Hindu family continued. One Babulal Devchand who was daughter's son of Bhanji Devji was managing the said ancestral property of the joint family contrary to law. None of the coparceners of the joint family had given any authority or a power of attorney for managing the property to said Babulal Devchand. Still however, he was managing the shops of the joint family and handed over the possession thereof to some persons in 1967 unauthorisedly and against law. When the plaintiff returned to Bombay from Africa he visited Chalala and found out that deceased Bhaishanker Mavji was doing business in the suit shop. On enquiry, said Bhaishanker Mavji told the plaintiff that the suit property had been let out to him by Babulal Devchand. Thereupon the plaintiff told Bhaishanker Mavji that Babulal Devchand had no authority to let the suit premises and asked him to hand over the possession of the suit premises.

(2.) It is further stated that one notice dated 2/08/1967 (Exh. 36) was also served on Babulal Devchand. However, deceased did not hand over the possession of the suit premises and the mesne profits were also not given.

(3.) Thereafter the plaintiff was required to go to Africa for an important work and returned to India in 1969 and visited Chalala. At that time also defendant did not show any inclination to pay the mesne profits. Hence the second notice was given on 3/02/1969 (Exh. 38). Still however, defendant did not show any inclination to hand over the possession of the suit premises as well as that of paying the mesne profits. At that time also, deceased Bhaishanker Mavji had contended that Babulal Devchand had let out the suit property at the monthly rent of Rs. 16. Subsequently, the plaintiff was again required to go to Africa and he could not take any action against the defendant. However, the plaintiff returned to India in 1971. At that time Bhaishanker Mavji was dead and the defendants Batukbhai Bhaishanker and Chandulal Bhaishanker had sub-let the suit premises to defendants Nos. 3 to 6. It was also alleged that the defendants Nos. 1 and 2 had not acquired the tenancy rights of the deceased and therefore they had no right to let out the property.