NORMAN JOSEPH FERREIRA Vs. ARJANDAS NEWANDRAM

JUDGEMENT

(1.) BY means of this writ petition filed under Article 227 of the Constitution of India, the petitioners who are decree holders seek to challenge the order dated 1st March, 1988 passed by the Appellate Bench of Small Causes Court whereby they set aside the order of the Judge, Small Causes Court dated 26-6-73 and discharged obstructionist notice taken out by the present petitioners decree holders against respondent Nos. 1, 2 and 3 herein.

(2.) RELEVANT facts first : dr. John Joseph Ferreira and Mrs. Matilda John Ferreira were owners of Plot Nos. 12 and 13, situate at Sitladevi Temple Road, Mahim, Mumbai. The present petitioners are the legal representatives and heirs of the said owners. The said John Joseph Ferreira and Matilda Ferreira granted lease of the aforesaid plots of land to one Jamnadas Dharamadas for a period of 15 years vide lease deed dated 14th December, 1948. The lease was renewable for a further period of 15 years, Under the lease, the said Jamnadas was permitted to erect buildings on the said plots and also let out such buildings. It was also agreed under the said lease that on determination of lease, the lessee would deliver back possession of the said land to the lessors free of all buildings, erections and the structures. The lessors were also entitled to re-enter the said plots on forfeiture. The lessee Jamnadas after taking the land on lease, constructed three buildings known as Sindhi Nivas, Block A, Block B and Block C, and let out tenements of the said building to several persons. The respondent and 3 herein came in possession of the respective tenements on the basis of the agreements between them and the lessee Jamnadas. It appears that the lessee Jamnadas failed to pay rent as per the lease and also did not pay the taxes and charges. The lessors filed suit for ejectment against Jamnadas for possession and arrears of rent. The said suit was registered as RAE and R Suit No. 660/5480 of 1961. On 11th November, 1964, the trial Court passed a decree for eviction in favour of lessors. According to the decree passed against Jamnadas, the lessors became entitled to possession of the land bearing Plot Nos. 12 and 13 and the structures standing thereon. The lessee Jamnadas preferred appeal against the judgment and decree passed by the trial Court which was registered as Appeal No. 2 of 1965. The lessors also filed first appeal which was registered as Appeal No. 563 of 1964. The Appeal Court heard both the appeals together and modified the decree passed by the trial Court by directing the lessee Jamnadas to deliver possession of demised land only. The lessors preferred Civil Revision Application No. 1714 of 1965 against the judgment and decree of the Appeal Court while Jamnadas filed Special Civil Application No. 1586 of 1965 before this Court. On 23rd October, 1969 this Court modified the decree passed by the Appeal Court by passing the decree for possession in favour of lessors in respect of demised plots as well as the buildings standing thereon. Jamnadas challenged the judgment and order of this Court before the Apex Court. However, the Apex Court dismissed the appeal filed by Jamnadas on 7-5-1980 and maintained the judgment and decreed passed by this Court. It appears that the petitioners decree holders levied execution of the decree for possession of the land and the building after the judgment and decree was passed by this Court on 23-10-69. However, the occupants of the said three building obstructed the said execution claiming that they were not bound by the decree and that they were occupying respective tenements in their own rights. The decree holders petitioners accordingly, took out Obstructionist Notice No. 260 of 1970 against 77 occupants including Newandram Shivalomal, father of the first respondent and respondent Nos. 2 and 3. It is the petitioner decree holders case that they arrived at the settlement with some of the obstructionists. Thereafter, the obstructionist notice proceeded against remaining 60 obstructionists including the father of first respondent and respondent Nos. 2 and 3. The executing Court, vide order dated 26th June, 1973 made the obstructionist notice absolute save and except against the obstructionists with whom settlements were arrived at by the lessors and three obstructionists who died during pendency of obstructionist notice. 26 obstructionist out of the said 60 obstructionist against whom obstructionist notice was made absolute vide order dated 26-6-73 preferred appeal which was registered as Appeal No. 628 of 1973. The said appeal was allowed by the trial Court on 28th January, 1977. It is the case of the petitioners that in respect of these 26 obstructionists, they have filed the declaratory suit which is pending in the Court of Small Causes. Then 34 obstructionist remained against whom obstructionist notice was made absolute by the executing Court on 26th June, 1973 which included the present respondent Nos. 1, 2 and 3. These 34 obstructionists filed six appeals in all, bearing Appeal Nos. 617 and 1973, 632 of 1973, 2 of 1974, 6 of 1974, 33 of 1974 and 38 of 1974. Appeal No. 38 of 1974 was filed by Newandram Shivalomal, father of respondent No. 1 and the present respondent Nos. 2 and 3. Appeal No. 33 of 1974 and Appeal No. 6 of 1974 were withdrawn by the concerned obstructionist. Appeal No. 617 of 1973, 632 of 1973 and 2 of 1974 were heard together and disposed of by the Appellate Bench of Small Causes Court on 25th November, 1982 whereby the Appellate Bench maintained the order of the Executing Judge, Small Causes Court. The order passed by the Appellate Bench on 25th November, 1982 was challenged by some of the obstructionists who were parties in the said appeals before this Court in Writ Petition Nos. 109 to 119 of 1983. The learned Single Judge of this Court heard the said group of writ petitioner together and vide order dated 24th March, 1986, dismissed all the writ petitions. Thus, the order passed by the Executing Judge on 26th June, 1973 and the order passed by the Appellate Bench on 25th November, 1982 were confirmed by this Court vide order dated 24th March, 1986. It appears that Appeal No. 38 of 1974 filed by present respondent Nos. 1 to 3 was not heard alongwith Appeal Nos. 617 of 1973, 632 of 1973 and 2 of 1974 and remained pending which came up for hearing before the Appellate Bench later on and the Appellate Bench vide its judgment and order dated 1st March, 1988 allowed the Appeal No. 38 of 1974, set aside the order of the executing Judge in respect of the present respondents who were original obstructionist Nos. 4, 7 and 10 and accordingly, discharged the obstructionist notice in respect of the present respondent Nos. 1, 2 and 3. The order dated 1st March, 1988 is under challenge before this Court in this writ petition at the instance of the decree holders as already noted above.

(3.) AT the outset, it may be observed that though the impugned judgment and order of the Appellate Bench runs in more than 100 typed pages, most of which is inconsistent with the judgment of this Court passed on 24th March, 1986 on similar facts and identical situation. It is really strange that the Appellate Bench ventured not to follow the judgment and order of this Court passed on 24th March, 1986 dealing with the same questions and reached the findings and conclusions inconsistent with the judgment and order of this Court. There cannot be any dispute that the facts, material and documents under consideration before this Court in the group of Writ Petitions Nos. 109 of 1983 to 118 of 1983 arising out of the order passed by the Appellate Bench of Small Causes Court in Appeal Nos. 617 of 1973, 632 of 1973 and 2 of 1974 were exactly same and identical which were under consideration before the Appellate Bench of the Small Causes Court in Appeal No. 38 of 1974 preferred by the present respondent Nos. 1 to 3. As a matter of fact as well as in law there was no occasion nor any justification for the Appellate Bench to take the view different and inconsistent with the view of this Court wherein the status of the other obstructonists similarly placed and identically situated in respect of other tenements were considered by this Court in the earlier group of Writ Petitions Nos. 109 of 1983 to 118 of 1983. The Appellate Bench appears to have become more philosophical and over-sympathetic in respect of the obstructionists No. 4, 7 and 10 i. e. , present respondent Nos. 1 to 3 overlooking the judgment of this Court passed on 24th March, 1986 and also misreading the judgment of the Apex Court whereby the decree for possession in respect of the land and structures in favour of lessors decree holders attained finality right upto the highest Court. At this stage, it may also be noted that the appellate bench has misread and misconstrued the affidavits filed by obstructionist No. 4 on 2nd December, 1970 and 15th March, 1971, the affidavits filed by obstructionist No. 7 on 2-11-1970 and 2-12-1970 and the affidavits filed by obstructionist No. 10 on 2nd December, 1970 and 15-3-1971 and erroneously held that the said affidavits had gone unchallenged and uncontradicted. The Appellate Bench also misconstrued, misread and misinterpreted the writing executed by the present respondents in favour of the original lessee, particularly, para 6 in holding that when these occupants paid ground rent proportionate to their share to the lessee, it shall have to be held that the lessee has prima facie created the sub-tenancy in their favour as regards the land. The inference drawn by the Appellate Bench about discrimination by the decree holders in respect of some occupants of tenements on the one hand and the present respondent Nos. 1 to 3 on the other hand are highly imaginary. The approach of the Appellate Bench in considering the entire matter was wholly misdirected and that has resulted in erroneous order.