KANTILAL FARASRAM Vs. MAGANLAL NANUBHAI

JUDGEMENT

(1.) This revision application under Sec. 29(2) of the Bombay Rent, Hotel and Lodging House Rates Control Act, hereinafter referred to as 'the Rent Act', is directed against the judgment and decree dated 14.10.1981 passed by the learned Assistant Judge, Surat in Regular Civil Appeal No. 124 of 1981 dismissing the appeal with cost.

(2.) . The facts of the petitioners' case as can be recapitulated from the judgment of the appellate Court are : The petitioners being the plaintiffs filed Rent Suit No. 211 of 1977 against the defendant-tenant for obtaining possession of the ground floor of the building bearing no. 2/2344 situated in Sagrampura, Anavil-Sheri, Surat, described herein as 'the suit premises'. The case of the plaintiffs is that the defendant alone resides in the suit premises and he is tenant therein. He having built up and/or acquired suitable vacant possession of a residential premises in Purnima Society at Ghod Dod Road, Surat, he was liable to be evicted from the suit premises by virtue of the provisions contained in sec. 13(1)(1) of the Rent Act. It was also alleged by the plaintiffs that the defendant has also got ancestral building in village Abhva. The defendant resisted the suit inter-alia on the ground that his father Nanubhai Nagarji Naik had hired the suit premises in the year 1942 and on his demise in the year 1964, the defendant, his brother Chhaganlal, their mother and sister inherited the tenancy rights since they all resided together. The defendant's sister died in the suit premises in the year 1966. His mother also died. It was, therefore, contended by the defendant that he and his brother Chhaganbhai became the tenants of the suit premises. It was the case of the defendant that Chhaganbhai had gone to Utran to stay there on account of his job and then he was transferred to Rander and from Rander to Udhna, but on various occasions he alongwith the members of his family used to occupy the suit premises with the defendant. Even on weekly holidays he used to occupy the suit premises with the defendant. With regard to the house at village Abhva, it is the case of the defendant that the said property is joint family property of himself and his brother and it is devoid of any facility and it is not possible to reside in that house. He has contended that the suit is bad for non-joinder of necessary parties.

(3.) . Both the Courts below held that the defendant alone was not the tenant of the suit premises and that his brother Chhaganbhai also inherited the tenancy right along with the defendant and in that view of the matter, both the Courts below held that although the defendant acquired suitable residence as alleged by the plaintiffs since Chhaganbhai did not acquire the said residence, the plaintiffs could not be held to have proved his right to get decree for eviction under Sec. 13(1X1) of the Rent Act.