BIPINCHANDRA NATVARLAL DESAI Vs. JOITARAM GOVINDBHAI PATEL

JUDGEMENT

(1.) Since common questions are involved between the same parties namely the landlord and the tenant in all the four Revision Applications and they arise out of common judgment of the first Appellate Court upon joint request they are being disposed of by this common judgment.

(2.) Revision Applications No. 1705 of 1980 and 698 of 1981 are filed by the tenant who was the original plaintiff in H.R.P. suit No.1944 of 1975 and the Revision Applications No.51 of 1981 and 52 of 1981 are filed by the landlord who was the original plaintiff in H.R.P. Sut No. 2159 of 1975. The panics are hereinafter referred to as the landlord and the tenant for the sake of brevity and convenience. The tenant filed the aforesaid suit in the Small Causes Court at Ahmedabad on 9.5.1975 for declaration and injunction restraining the landlord from constructing cement stair-case in chawk portion and from closing the western side window Or kitchen and damaging his lease-hold right in the premises. The landlord filed the aforesaid suit for declaration and injunction restraining the tenant from using the chawk bath room and passage to the west of the demised premises. This suit was filed on 16.6.1975. Both the suits come to be consolidated and common evidence was led. The landlord examined five witnesses and the tenant examined four witnesses. On appreciation of the common evidence led by the parties in both the suits the Trial Court passed a common judgment on 21.9.1979 by holding: (i) that the landlord is permanently restrained from constructing or causing to construct the stair-case in any manner by which the user of the window in the kitchen with the tenant is restricted (ii) that the chawk portion behind the rooms with the tenant is not let or given in use to the tenant and that the act of the tenant in closing the door from the chawk side abutting in the middle room of the house is not legal (iii) that the tenant is permanently restrained from removing or causing to remove the ladder in the chawk portion and also from restraining or causing to restrain the landlord in constructing the stair-case only as per plan at Exh.41 and also from using or causing to use whole of the chawk portion and bath room. Rest of the claim in both the suits came to be rejected leaving the parties to bear their own costs. 3 Being dissatisfied and aggrieved by the judgment of the Trial Court the tenant preferred two appeals before the Appellate Bench of the Small Causes Court at Ahmedabad being Appeals No. 65 of 1980 and 66 of 1980 on 14.2.1980. Both the appeals were heard and came to be decided by a common judgment on 30.9.1980. The Appellate Court partly allowed the appeal by modifying the impugned order of the Trial Court. The Civil Appeal No. 65 of 1980 was partly allowed and it was declared that the chawk portion behind the two rooms let out to the tenant was allowed by the landlord to be used by the tenant as the tenant and that the disputed passage marked C and disputed bath room marked D and the disputed passage marked E shown in the Commissioners map at Exh.36 is common with the landlord. Thus the judgment and decree in H.R.P. Suit No. 2159 of 1975 in so far as it related to the injunction order granted against the landlord restraining him from constructing or causing to construct any stair-case in any manner by which the user of the window in the tenants kitchen would not be restricted came to be confirmed.

(3.) The judgment and the decree of the Trial Court in H.R.P. Suit No. 2159 of 1975 in so Far as related to the injunction granted against the tenant restraining him from removing or causing to remove the existing ladder in the chawk portion restraining or causing to restrain the landlord in constructing the stair-case only as per the plan at Exh.41 and from using or causing to use the whole of the chawk and the bath room exclusively for himself also came to be confirmed. Moreover in that suit in so far as the relief related to the declaration that the tenant was not entitled to close the door of the middle room of the landlord opening from the chawk side was also confirmed. Civil Appeal No. 66 of 1980 filed by the tenant was also partly allowed and the Appellate Court declared that the tenant was given the right by the landlord to use as tenant the disputed passage marked C the disputed bath room marked D and the disputed chawk marked E as shown in the Commissioners map at Exh.36 in common with the landlord. Being aggrieved by the said common judgment of the Appellate Court the Civil Revision Application No. 1705 of 1980 is filed by the tenant against the appeal No. 65 of 1980 which was filed against H.R.P. Suit No. 2159 of 1975. Likewise the tenant has also filed Civil Revision Application No. 698 of 1981 against the adverse judgment passed in Civil Appeal No. 66 of 1980 which was preferred against the decision in H.R.P. Suit No. 1944 of 1975 The landlord has filed Civil Revision Application No. 51 of 1981 against the adverse decision in Appeal No.65 of 1980 which was preferred against the decision in H.R.P. Suit No. 2159 of 1975 and he has also filed Civil Revision Application No.52 of 1981 against the adverse decision rendered in Appeal No. 66 of 1980 which was preferred against the H.R.P. Suit No.1944 of 1975