DAUDBHAI IMRANALI MOTORWALA Vs. AJIB YAKUB TAMBOLI

JUDGEMENT

(1.) THE first respondent (hereinafter referred to as "the plaintiff" is the owner of house No. 9/16 in the limits of Pen Municipality. The petitioner (hereinafter referred to as "defendant No. 1") is the tenant in respect of three rooms of the said house on a monthly rent of Rs. 35/- and educational cess. The plaintiff filed regular civil suit No. 8 of 1975 in the Court of Civil Judge (Junior Division), Pen in Kulaba District that defendant No. 1 removed the northern wall which was about fourteen inches in width and constructed a wall of nine inches width in its place without his permission and also took away wooden planks therefrom. He further averred in his plaint that he kept the second respondent (hereinafter referred to as "defendant No. 2") as a sub-tenant and was profiteering by charging heavy rent thus contravening the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as "the Act"). Further case of the plaintiff was that defendant No. 1 had no concern with the courtyard behind the house but he removed many stones and constructed a gate there and after removing the compound wall took a water connection in the compound and also kept a cow therein. In other words, it was his case that defendant No. 1 was misusing the premises. He accordingly terminated the tenancy of defendant No. 1 by a notice dated November 8, 1974 on the grounds aforesaid and also claimed damages at the rate of Rs. 35/- per month till the possession of the suit premises of the suit premises was given back to him.

(2.) THE suit was resisted by defendant Nos. 1 and 2. According to them, the notice terminating the tenancy of defendant No. 1 was not legal. Since it was the case of the plaintiff in his plaint that defendant No. 1 was tenant in respect of two rooms, defendant No. 1 contended in his written statement that he was not the tenant in one block of house No. 9/16 having two rooms but he was in possession of the whole municipal house No. 9/16 and open premises to the eastern side of house No. 9/16 and that he was using the front premises as shop and rear premises for his residential use and occupation. He denied the allegations of the plaintiff that he had altered the wall which was to the northern side as alleged. He contended that there were no planks and he removed none. He also denied that he had kept defendant No. 2 as a sub-tenant and was charging him heavy rent and profiteering from the suit premises. According to him, he was not only the tenant in respect of the entire house No. 9/16 but also the open space to the eastern side of the same from the year 1967. He denied having demolished any part of the compound wall to the northern side. According to him, there was a gate from the beginning. He admitted that he took water connection in the compound and kept a cow in the courtyard from the year 1961 but that was with the permission of the plaintiff. Thus, he contended that there was no unauthorised use of the court-yard which was in his possession as a tenant. It was his case that the plaintiff was asking for more rent as he (defendant No. 1) was doing business in the suit premises which demand of the plaintiff was resisted by him and, therefore, the plaintiff filed the suit against him on false grounds. He submitted that in the front portion of the suit premises he was having a shoe shop which was his only source of livelihood and if evicted he will suffer irreparable loss.

(3.) BEING aggrieved, defendant Nos. 1 and 2 filed civil appeal No. 3 of 1980 in the District Court at Alibag. On the submissions made before him, the learned Assistant Judge, Raigad, who heard the said appeal came to the conclusion that that the demised premises were only of two rooms and the plaintiff could not prove that defendant No. 1 had carried out material alterations in the suit premises. He was also of the opinion that the plaintiff failed to prove that defendant No. 1 had unauthorisedly removed the planks from the loft of the suit premises. Further, according to the appellate Court Judge, the plaintiff could not prove that defendant No. 1 had unauthorisedly broken the compound wall and had made a gate thereat. He, however, held that the plaintiff could establish that defendant No. 1 misused the open ground around the suit house No. 9/16 and defendant No. 1 unauthorisedly sub-let part of the suit premises to defendant No. 2 for conducting watch repairing business. He, accordingly by his judgment and order dated October 13, 1981 dismissed the appeal with costs. He directed defendant Nos. 1 and 2 to hand over vacant possession of the suit premises along with the open site to the plaintiff on or before Nov. 16, 1981.