RAJENDRA DINKAR YADAV Vs. BHAGIRATHIBAI SHRIPATI JADHAV

JUDGEMENT

(1.) BOTH these writ petitions are disposed of by this common judgement.

(2.) PUNE Municipal Servants Co-operative Bank Ltd. , are the owners of a certain property situated at 768, Sadashiv Peth, Pune-30. (They are hereinafter referred to as the landlords of the said property ). They filed a civil suit bearing No. 987 of 1964 against their tenant Shripati Jadhav, (since deceased) for possession of a tenement under section 13 (1) (hh) of the Bombay Rent Act. In para 1 of the plaint the premises was described as the shop premises on the ground floor admeasuring about 9? khans. On December 21, 1964, they filed consent terms and a decree was passed in terms of the consent terms. The relevant clauses of the consent terms as translated are as follows:

(3.) ON November 21, 1986, the said tenant handed over possession of the premises to the landlords. The landlords thereafter pulled down the entire building including the said premises and in its place constructed a new multi-storied building on November 10, 1967, the said tenant issued a notice to the landlords purporting to be a notice under section 17 (B) of the Bombay Rent Act claiming possession of the premises to be given to him. In this notice the measurements of the premises were not mentioned nor is there any claim of any specific area as such. On June 14, 1968, he filed Miscellaneous Application No. 272 of 1968, for possession of the premises to be given to him as per the consent terms. Here again, there is no mention of the measurements nor of any specific area as such. The only prayer made in the application was that he should be given possession of the premises equal to the premises which was previously occupied by him. He has also stated that the construction work was not complete and the landlords were delaying the construction work. This application was dismissed by the court of Small Causes on October 14, 1969, on the ground that the application was not maintainable and the notice issued by him earlier was also not legal and proper. He then filed an appeal against the said order being Civil Appeal No. 1056 of 1969 in the District Court at Pune. That appeal came to be dismissed on or about July 6, 1970, and the appeal Court held that the decree was merely a declaratory decree ad not an executory decree. He then preferred Special Civil Application No. 1819 of 1970 to this High Court. By an order dated July 17, 1975, the High Court held that the decree was executable and was not merely a declaratory decree. The High Court remanded the proceedings to the trial Court with a direction that the proceedings should be treated as execution proceedings and the trial Court should dispose of the same according to law. Apparently, the High Court did not treat the said application as an application purporting to be under the provisions of the Bombay Rent Act.