GANGABISAN PANALAL JOSHI Vs. DATTATRAYA CHANDRASA BILADE

JUDGEMENT

(1.) Respondent No. 1 in this petition, hereinafter referred to as "the defendant", is a tenant of a shop forming part of a house bearing Municipal House No. 999 and situated at Sangamner town in Ahmednagar District. The said shop will hereinafter be referred to as the suit premises." The petitioners, hereinafter referred to as "the plaintiffs", filed a suit, being Regular Civil No. 258 of 1971, for possession of the suit premises on the ground that the plaintiffs required the same reasonably and bona fide for their own use and occupation and also on the ground that the defendant was guilty of arrears of rent. In the trial Court the claim on the ground of arrears of rent had been negatived and in the appeal Court the plaintiffs did not press for the decree for eviction on the ground of arrears of rent. Therefore, the said ground is being kept out of consideration in this judgment.

(2.) The learned Civil Judge (Junior Division), of Sangamner, by his judgment and order dated 12th December, 1975. Decreed the suit on the ground available to the landlord under section 13(1)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, hereinafter referred to as "the Bombay Rent Act". The question that arises under section 13(2) of the Bombay Rent Act, namely the question of comparative hardship, was also decided by the learned trial Judge in favour of the plaintiffs. This decree passed by the learned trial Judge was challenged by the defendant in Civil Appeal No. 31 of 1976 which was heard and allowed by the learned Assistant Judge of Ahmednagar by his judgment and order dated 18th October, 1978. While so allowing the appeal the learned Assistant Judge noticed that in law the first plaintiff, for whom the possession of the suit premises was sought, was not the owner of the suit premises. Nevertheless, he proceeded to consider his case on the assumption that the third plaintiff who was the owner of the suit premises had herself asked for possession of the suit premises. Thereafter the learned Assistant Judge came to the conclusion that the suit premises were not reasonably and bona fide required by the plaintiffs for the use and occupation of the first plaintiff and secondly that if a decree for possession were passed it would cause greater hardship to the defendant than the hardship that would be caused to the plaintiff by the refusal to pass a decree. Consistent with these findings the learned Appellate Judge allowed the appeal and dismissed the suit throughout. It is against this decree of the dismissal of the suit passed by the learned Appellate Judge that the plaintiffs have approached this Court under Article 227 of the Constitution.

(3.) Before considering the contentions which have been raised on behalf of the petitioners by Mr. Abhale, the learned Advocate appearing in support of the petition, it would be appropriate to briefly refer to the material and the findings given on that material by the learned Assistant Judge. The learned Assistant Judge noted that the house of which the suit premises form part was given as gift to the third plaintiff by her maternal uncle and therefore she was the full owner of the same. The partition, under which the suit premises are said to have come to the share of the first plaintiff, could not transfer any right, title or interest in the suit premises to the first plaintiff because what was not joint property could not be partitioned under the law. It has not been shown that at any time the third plaintiff made a gift of the suit premises to the first plaintiff. Moreover, it was also found by the learned Assistant Judge that in the relevant records the suit premises stand in the name of the second plaintiff alone. Considering all this material which was on record it was not difficult for the learned Assistant Judge to say that the first plaintiff was not the owner of the suit premises and, therefore, he could not be the landlord vis-a-vis the defendant. However, in paragraph 13 of his judgment the learned Assistant Judge proceeded to mention that assuming for the time being that the third plaintiff were the sole owner of the property, she could demand possession of the suit premises on the ground of reasonable and bona fide requirement for the first plaintiff. So assuming he considered the reasonable and bona fide requirement of the suit premises for the first plaintiff himself.