AJIT SINGH SUNDER SINGH Vs. DHANJISHAW J POONAWALLA

JUDGEMENT

(1.) Original defendant No. 2 challenges the validity of the order of eviction passed against him by the Court of Small Causes at Bombay and confirmed by the Appellate Bench in appeal. Respondent No. 1, hereinafter referred to as the plaintiff, instituted the said suit under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, hereinafter referred to as "the Rent Act of 1947" for possession of Flat Nos. 20, 21, 22 and 23 on the fifth floor of the building known as Marina House situate at 5, New Marine Lines, Bombay, on December 17, 1959. The plaintiff had purchased the entire property, including the said flats in the year 1945, when these flats were occupied by original defendant No. 1. Eviction was sought on the ground of arrears of rent, unlawful sub-letting and unlawful assignment and also on the ground of raising a permanent structure in contravention of Section 108(c) of the Transfer of Property Act and also the agreement of lease, rendering themselves liable to eviction. Defendant No. 1 remained ex parte. Defendant No. 2 claimed to be the lawful sub-tenant of flat No. 20 from defendant No. 1 with effect from November 1, 1947. Defendant No. 3 claimed to be lawful assignee of all the four flats from defendant No. 1 with effect from November 11, 1949 and alleged that defendant No. 2 was his lodger. Defendant No. 2 claimed to have paid entire arrears of rent of defendant No. 1, through defendant No. 3 as the agent of defendant No. 1. The allegation as to the unlawful erection of permanent structure was denied by the defendants.

(2.) Issues were framed and evidence was led. By his judgment dated January 17, 1962 the trial Judge passed a decree for eviction. On separate appeals by defendant No. 2 and defendant No. 3, the said decree was confirmed on April 18, 1967. I am informed at the Bar that defendant No. 3's Special Civil Application to this Court against these orders was summarily rejected and these orders of eviction as against defendant Nos. 1 and 3 in regard to Flat Nos. 20, 21, 22 and 23 have now become final.

(3.) The trial Judge and the Appellate Bench have held that defendant No. 2 was not a lawful sub-tenant. It is unnecessary to refer to pleadings of and findings recorded against other defendants, as in the event of reversal of this finding, defendant No. 2 would be entitled to the possession of Flat No. 20 as lawful sub-tenant in his own right and adverse findings against defendant No. 1 or defendant No. 3 even with regard to flat No. 20 cannot affect the protection available to him under the Rent Act of 1947 to such lawful sub-tenant. Both the Courts concurrently absolved defendant No. 2 from the allegation about raising unauthorised structures, though defendant No. 3 was found guilty of the same. When this matter came up for hearing before me on April 21, 1971, I noticed that issue No. 1 was not happily worded and was misleading to a certain extent. Averments made by the plaintiff and defendant No. 2 really raised two questions - firstly, whether in fact defendant No. 2 was inducted in the flat as the sub-tenant ? His sub-tenancy was not admitted by the plaintiff. The plaint only referred to his claim to be the sub-tenant. The second question was as to the legality of such sub-tenancy. By my order dated April 21, 1971, I remitted an additional issue as follows for finding, after giving opportunity to the parties to lead evidence :