BATULBAI JAFARALI Vs. MARIYAM ABBASBHAI

JUDGEMENT

(1.) The dissatisfied tenants being aggrieved by the judgement and decree dated 25.09.1996 passed in Regular Civil Appeal No.15 of 1991 by the learned Assistant Judge, Morvi reversing the judgement and decree dated 30.04.1991 passed in Civil Suit No.144 of 1982 by the Court of learned Civil Judge (Junior Division), Morvi, is before this Court under section 29(2) of the Bombay Rents, Hotel & Lodging House Rates Control Act, 1947 (hereinafter referred to as "Bombay Rents Act").

(2.) The facts in the nutshell are that one Abbasbhai has leased out the premises to one, Alibhai Rajbhai. After the death of Abbasbhai, his legal representatives filed a suit against the legal representatives of Alibhai submitting, inter alia, that Vora Jafarali and Vora Mohmadali Alibhai had succeeded to the tenancy being the sons of deceased-Alibhai Rajbhai, but a part of the premises has been sublet by them in favour of Fatmabai, who happens to be married daughter of the original tenant, Alibhai. Apart from this the ground of non payment of rent was also pressed into service. During pendency of the suit Vora Jafarali, son of Alibhai also died and his six legal heirs were substituted on record. The plaintiff, by way of amendment submitted before the Court that during pendency of the suit the tenant has constructed a house which is suitable for his residence, therefore also under section 13(1)(l) of the Bombay Rents Act the tenants were liable to be evicted. The defendant submitted before the Court that the tenancy rights were succeeded by Vora Jafarali and Vora Mohmadali as sons and Fatmabai as daughter as joint tenants. They submitted that all the three were living together with the deceased-tenant, Alibhai Rajbhai, therefore, each of them had become tenant under section 5(11)(c) of the Bombay Rents Act. The factum of sub-tenancy was denied and for the other ground it was submitted that in the year 1979 because of heavy floods the house belonging to Alibhai which was in existence when he had taken premises on lease suffered great damages and was virtually demolished, therefore, after getting the map sanctioned, same and similar house was constructed. It was submitted that when Alibhai had taken the suit premises on lease, the house which later on was washed in the floods was already in existence and Alibhai finding that it was not suitable for his whole family had opted for the suit house.

(3.) The learned Trial Court, after hearing the parties found that Jafarali Mohmadali and Fatmabai succeeded to the tenancy under section 5(11)(C) of the Bombay Rents Act and there was no sub-tenancy. It also observed that grounds under sec.13(1)(l) of the Bombay Rents Act was not available to the landlord to seek eviction of the tenant.