PANDURANG NARAYAN MANTRI Vs. ANANT SHANKARRAO SAMUEL

JUDGEMENT

(1.) The appellants are the heirs of the original plaintiff whose suit for possession of the suit premises has been dismissed by the city civil court, for the sake of convenience the parties will be referred hereinafter as "plaintiff and defendant".

(2.) The dispute relates to a flat in the building known as "Shalka" situated at Shivaji park, Dadar, Bombay-28 Admittedly the plaintiff was the owner of the said flat and after his death his heirs Continued to be the owners thereof. Block No.1 on the ground floor of the said building is the subject matter of the dispute. The said block was let out by the plaintiff to one sitaram Tribhuvane sometimes prior to 1941, Sitaram was living in that block with his wife sulochana. Said sitaram Tribhuvane died in or about the month of Nov.1949, and after his death sulochana continued to occupy the said flat. The plaintiff transferred the rent receipt in respect of the suit premises in her favour. Sulochana herself had become very old and more or less helpless. There was no one to look after her in that age. Moreover, she had with. Defendant's wife was Sitaram's niece. It therefore appears that she invited the defendant and his wife to come and stay with her and occupy the premises. By about Jan., 1950, therefore, the defendant and his wife stared living in the suit premises along with plaintiff initially resented this fact and she sent a letter Exhibit, 8, dt. 11-150, calling upon Sulochana to remove the defendant and his wife from the premises. The plaintiff contended that they were her unlawful sub-tenants. To this letter a reply dt. 17th Jan., 1950, was sent by sulochana through one R.B. Godambe, Advocate, purporting to act on behalf of Sulochana. In the said reply it was stated that the defendant and his wife were staying with Sulochana in order to keep her company and to give her help in her old age. It was denied that they were strangers or that they were sub-tenants. A positive statement was made that the defendant's wife was Sitaram's niece and that she was not a stranger as such. The demand of removal of the defendant and his wife was resented and turned down. No further reply was given by the plaintiff to this letter and there the plaintiff to this letter and there the matter rested till the death of Sulochanabai and for quite sometime even thereafter . Sulochanabai, died on or about 22nd August 1952. The defendant and his wife continued to stay there after the death of sulochanabai and for a period of nearly 10 years the plaintiff took no proceedings for recovery of possession from the defendant. As will be presently pointed out, the plaintiff took no proceedings for recovery of possession from the defendant. As will be presently pointed out, the plaintiff recovered rent from the defendant strictly in accordance with the provisions of the Bombay Rent Act; sent him notices for payment of permitted increase as required by the Bombay Rent Act; gave him particulars of the various increases and called upon him to pay various taxes recoverable by the landlord from his tenant. It is true that sometime in the year 1954, the plaintiff gave intimation to the Accommodation controller to the effect that the suit premises had fallen vacant within the meaning of the Bombay Land Requisition Act which was in force at that time in the city of Bombay. It is common ground that pursuant to the said intimation given by the plaintiff an enquiry was made by the office of the Accommodation controller. But in the enquiry, it appears, the Accommodation controller was satisfied that the defendant was not a stranger to the premises and that the premises could not be said to have fallen "vacant" within the meaning of the relevant Act upon the death of Sulochana. The proceedings under the BlR Act were therefore dropped. The fact,however, remains that the exact date when the proceedings were dropped does not appear to be on record. Mr. Suresh the learned counsel for the defendant was not able to post me with the information in that behalf. The fact however remains that right from the year 1952 till 1962 the plaintiff went on demanding and recovering rent from the defendant and went on giving every indication that he had accepted the defendant himself as tenant. It is true that the rent receipt continued to be in the name of Sulochana. But as will be presently pointed out this was a meaningless gesture.

(3.) It appears that there was some correspondence between the parties in which, on some occasions, the plaintiff denied the fact remains that he detenant.But the fact remains that he described himself as a landlord and went on recovering rent and permitted increases and taxes etc., from the defendant in strict accordance with the Bombay Act which applies only to tenants. Thereafter on 10th May 1961, all of a sudden he gave a notice to the defending that he was a trespasser in the suit premises and called upon him to vacate the same. Since the defendant denied the allegation, the present suit was filed by the plaintiff for recovery of the possession of suit premises in the Bombay city civil court on 30th march 1962. The suit is on the land title and not on the basis of the landlord-tenant relationship between the parties.