KTISHNAGOPAL MAHESHWARI Vs. RAMESH I GAJJAR THRU LRS

JUDGEMENT

(1.) THIS appeal takes exception to the order passed by the City Civil Court, Bombay dated 31st January 1986 in S. C. Suit no. 4190 of 1968.

(2.) THE appellants instituted the suit before the Bombay City Civil Court at Bombay stating that they are the trustees of public Trust known as Saraswatibai Bishwambhrlal Charity Trust registered under the provisions of the Bombay Public Trusts Act, 1950. It is their case that the Trust owns building known as Maheshwari Mansion situate at 34, Nepean Sea Road, Bombay-6. Flat no. 5 on the ground floor of the said building was let out to one Mrs. Shantabai Thakorlal Gajjar on monthly rent basis. THE said Shantabai expired in the year 1962. After her death,her husband Thakorlal Krishnaram Gajjar and her son Kikabhai continued to use and occupy the said flat. THE said Thakorlal expired in the year 1964. THEreafter Kikabhai continued to occupy the suit flat. It is common ground that Kikabhai was of unsound mind since his childhood. According to the appellants, after the demise of Thakorlal, Kikabhai was looked after by the servants and continued to reside in the suit flat. Whereas the respondents contend that after the death of Thakorlal, original respondent no. 1 Ramesh I. Gajjar started staying with Kikabhai to look after him in view of his mental condition. According to the appellants, however, the respondents had no connection with the suit flat and they were falsely claiming right in respect of the said flat. In the circumstances, after the death of Kikabhai on 22nd June 1968 the flat was kept in locked condition for which reason they instituted Suit before the City Civil Court on the allegation that the respondents were trespassers and, therefore, for a relief that the respondents be directed to hand over vacant and peaceful possession of the suit flat to the appellants and further to pay a sum of Rs. 487. 28 towards the arrears of compensation in respect of the said flat with interest and for mesne profits. THE suit was resisted by the respondents by filing written statement. In the written statement, however, the respondents clearly asserted that after the death of Thakorlal the 1st defendant occupied the suit flat along with said Kikabhai. Further the 1st defendant was looking after him as he was insane. THE respondents further asserted that they were maternal uncles of deceased Kikabhai and, therefore, entitled to claim the estate of deceased including the tenancy rights of the suit premises being heirs of deceased. THE respondents, therefore, contended that they were entitled to use and occupy the suit flat and were protected by the provisions of the Bombay Rent Act.

(3.) WHAT order and decree? 4. The parties adduced oral evidence in support of their respective claim. The original defendant no. 1 steeped into the witness box as DW 1, whereas Shri Badriprasad Gaudshankar Sharma was examined as PW1. The trial Court, after considering the pleadings, evidence on record including the rival submissions held that there was truth in the case of the defendants that after the death of father of Kikabhai,Kikabhai was looked after by the defendants and it is possible that defendants were residing in the suit premises till Kikabhai was removed in the hospital. The trial Court has further held that the plaintiffs were not able to show whether Kikabhai or his father or his mother had any other heir or legal representative who could raise any claim over the tenancy rights of the suit flat and it is undisputed that the defendants are the maternal uncle of Kikabhai. The trial Court has therefore held that it is obvious that the defendants are the heirs of Kikabhai, being the brothers of his mother Shantaben-original tenant and this being the position if the defendants were found in possession of such premises after the death of Kikabhai, it cannot be said that they are trespassers. The trial Court further took the view that the defendants were also claiming to be the guardians of Kikabhai under the Will of the father of Kikabhai. The trial Court, however, refrained from examining the matter any further because in its view to return finding regarding the claim of tenancy or inheritance of the tenancy by the defendants was the matter which was completely barred by virtue of the provisions of Section 28 of the Bombay Rent Act. The trial Court, accordingly, dismissed the Suit preferred by the appellants. 5. Mr. Dalvi, learned counsel for the appellants, has taken me through the pleadings and the entire evidence on record. According to him, the findings recorded by the trial Court cannot be sustained. He, however, fairly concedes that the Issue no. 1 as framed by the trial Court was improper, whereas the trial Court ought to have framed the following issue: Does the plaintiffs prove that the defendants are trespassers?