BAKARALI FATEALI Vs. MOHAMMAD KASAM HAJI GULAMBHAI

JUDGEMENT

(1.) This is a Civil Revision Application for and on behalf of the tenants, who have suffered a decree of eviction, on the count of the sub-letting or the assignment qua the suit premises.

(2.) The Rent Suit No. 171 of 1978 came to be instituted by the plaintiff-landlord against the original defendant-tenant, Bakarali, who had died during the pendency of the suit, leaving behind the heirs and legal representatives who figure as the defendants in the proceedings. The case of the plaintiff in brief, was that, he is the owner and the landlord of the property situated at Raopura, Baroda (Vadodara) and that the defendant No. 1, was the tenant in a shop on the ground floor at the monthly rent of Rs. 70.00 and that the monthly tenancy was to be reckoned according to the English Calendar. It has been averred that defendant No. 1 who was the tenant of the premises in question was, guilty of sub-letting the premises or of a transfer or assignment of his rights qua the premises. The whole endeavour on the part of the plaintiff-landlord was to establish that by certain successive partnership agreements creating partnership and the dissolution of the same, ultimately, the defendant No. 1 the original tenant was able either to sub-let the premises to his sons or was able to assign or transfer his interest in the tenancy to them. The defendants had appeared before the trial Court and had challenged the suit by filing a joint written Statement at Exh. 10 inter alia, contending that the suit is frivolous and that there has not been any sub-letting or transfer or assignment of the tenancy rights and that the contractual rent was excessive and therefore, the Court should proceed ahead to fix the standard rent. The trial Court had framed the issues at Exh. 14 and upon the appreciation of the oral and documentary evidence on record has come to the conclusion that the plaintiff was able to establish that he has become the sole owner and the landlord of the premises by virtue of an oral Hiba made in his favour by his father. The trial Court was also of the view that there was an unlawful sub-letting or the assignment or transfer of the defendant No. 1's interest in favour of the sons of the defendant qua, the suit premises. This view taken by the trial Court has resulted into the decreeing of the suit vide the judgment dated September 5, 1984. The defendants were called upon to hand over the vacant possession of the suit premises to the plaintiff on or before October 13, 1984. The said judgment and consequent decree were taken in appeal before the District Court at Baroda, by filing Regular Civil Appeal No. 312 of 1984 which came to be dismissed by the learned 2nd Joint District Judge, Baroda, vide the judgment dated November 6, 1993. The said judgment and the consequent decree of the Appellate Judge have been impugned in the present Civil Revision Application before me.

(3.) The question to be decided is as to whether the transactions which are in form of agreements executed between the original defendant and his sons in succession, would be able to establish either the sub-letting or the transfer or the assignment of the rights of the original defendant-tenant qua the suit premises in favour of his sons. The question appears to be calling for a decision on the basis of the factual and legal position. This would necessitate a detailed reference to the case of the plaintiff as demonstrated in the plaint and that of the defendants put forth in a joint written statement at Exh. 10. The plaintiff Mohmmad Kasam Haji Gulambhai, has averred that the suit premises, comprising a shop is situated on the ground floor of certain building belonging to him at Raopura locality in the town of Baroda and defendant No. 1 happens to be the statutory tenant and pays the rent at the rate of Rs. 70.00 per month. It is further averred that the premises in question belonged to the father of the plaintiff and that during that time also the defendant No. 1 was the tenant in respect of the suit premises but that the plaintiff has become the owner and the landlord of the premises by virtue of a gift. It shall have to be appreciated that the plaintiff nowhere states in the pleadings that he has become the owner or the landlord of the premises by virtue of an oral Hiba. As it would become evident later on, the question regarding the validity and the legality of a valid Hiba or even an establishment of the fact of the Hiba goes or recedes in an insignificant area as the requisite contentions in this respect were never raised before the appellate Court. Nonetheless, while appreciating the case of the plaintiff put forth in the pleadings, it shall have to be noticed that there is absolutely no mention regarding the plaintiff becoming the owner or the landlord of the premises under an oral Hiba. All whatever has been said is that, he has become the owner and the landlord of the premises because of a certain gift made by his father.