PUNNAKATU CHERY JOSEPH THAKAPPA Vs. PYARALI HIRJI HAMID

JUDGEMENT

(1.) THIS Letters Patent Appeal is filed by the appellant, defendant, (hereinafter referred to as 'the defendant')against the respondent, plaintiff (hereinafter referred to as 'the Plaintiff'), impugning the judgment and order passed by the learned single Judge of this Court dated 8-10-1998 in first Appeal No. 352 of 1986, by which order, the learned Single Judge has dismissed the appeal and confirmed the judgment and decree passed by the City Civil Court, bombay, in S. C. Suit No. 3615 of 1963, thereby allowing claim of the plaintiff for possession of the suit premises.

(2.) THE brief facts of the case are as under :-a) That the suit premises consists of a flat bearing Flat No. 7-92 (5), situated on the 3rd floor in a building known as Printing house, 24-A and 28-D, Police Court Lane, fort, Bombay. It is an admitted position that the suit premises were owned by one Charles neukon. It is also an admitted position that one Ramswamy was inducted as a tenant in the suit premises by the original landlord Mr. Charles Neukon. b) One M/s. New Karnataka printing and Publishing House Ltd. , which was a Public Limited Company, took over the business of printing from Mr. Charles Neukon in 1946 and the business was purchased as a running and going concern together with the business premises which are the present suit premises. c) That after plaintiff took over the business as aforesaid, the original tenant ramswamy continued to occupy the suit premises, as a monthly tenant. The monthly rent of the suit premises was fixed at Rs. 32. 55 per month. d) It was the case of the plaintiff that Ramswamy was always irregular in payment of rent. He was also not staying in the suit premises, but used to allow other persons to occupy the same from time to time. That as the suit premises were illegally transferred by the tenant Mr. Ramswamy, the controller of Accommodation had requisitioned the same by an order dated 20-3-1958. The said order of requisition had remained in force till 5-5-1958, on which day, the suit premises were derequisitioned by the controller of Accommodation. That after derequisition, the suit premises were again occupied by the old tenant Mr. Ramswamy and he continued to occupy the suit premises till August, 1960. That some time in August, 1960, Ramswamy abandoned the premises, leaving it in possession of the defendant. On 24th September, 1960, the defendant addressed a letter to M/s. New Karnataka printing and Publishing House Ltd. , enclosing therewith a copy of a declaration said to have been made by the tenant Mr. Ramswamy and further enclosing a cheque for the amount of rs. 32. 55 towards payment of rent for the month of August, 1960. By the said letter, defendant applied for transfer of tenancy bill in respect of the suit premises to his name. The defendant contended in the said letter that he was in possession of the suit premises since 1958. M/s. New Karnataka Printing and Publishing House Ltd. replied the said letter through their advocate's letter dated 9-10-1960. They denied all the contentions of the defendant and refused to transfer the rent bills in his name. M/s. New Karnataka printing and Publishing House Ltd. then filed s. C. Suit No. 3615/1963 in the Bombay City civil Court at Bombay, on 31-7-1963 for a decree directing the Defendant, his servants and agents to vacate and remove himself from the suit premises and for handing over vacant and peaceful possession of the same. In the said suit, a decree was sought directing the defendant to pay an amount of Rs. 1,171. 80 as and by way of compensation to the plaintiff for unauthorised use and occupation of the suit premises from 7-8-1960, till the date of filing of the suit. Further compensation at the rate of Rs. 5/- per day was also sought. e) On being served with summons, the defendant appeared and filed his written statement on 8-4-1964. It was the case of the defendant that he was a lawful sub-tenant of the original tenant - Ramswamy, duly protected under the Bombay Rent Act. He submitted that he came to reside in the suit premises in the year 1955 and later on the original tenant left the suit premises for good, leaving the same in his exclusive possession from 1958. He contended that he brought his wife from his native place and since 1958 onwards he had been residing with his family in the suit premises. He submitted that his name along with the name of his wife was recorded in the electoral roll in or the month of January, 1959, for electoral purpose based on this fact that his name was included in the electoral roll in force from 20th December, 1960 to 19th December, 1964. f) The plaintiff purchased the suit premises during the pendency of the suit and got himself impleaded in place of the original plaintiff New Karnataka Printing and publishing House Ltd. , by an amendment dated 5-10-1982 carried out in pursuance of the order of the City Civil Court dated 27-9-1982. g) At the stage of trial, the plaintiff examined one Venugopal Amembal, who was the Secretary of the plaintiff-Company as his first witness. He also examined one Razak naik, an Accommodation Inspector, General administration Department in the State of maharashtra. On examination of these two witnesses, the plaintiff closed his case. h) At the trial, the defendant examined himself as DW-1. He also examined one Trecy Gobeas, who was the neighbour of defendant, as DW-2. The defendant then closed his case. i) Upon consideration of the oral and documentary evidence led and produced by both sides, by a judgment and decree dated 25-2-1986, the learned Judge of the City Civil court, Bombay, was pleased to decree the plaintiffs suit and direct the defendant to deliver vacant and peaceful possession of the suit premises and to pay to the plaintiff an amount of Rs. 1,171. 80 as compensation for use and occupation of the suit premises from 1st August, 1960 till 31st July, 1963. j) In the judgment and order, the trial Court came to the conclusion that the plaintiff has proved that the defendant was a trespasser on the suit premises. That the defendant has failed to prove that he was a lawful sub-tenant in the suit premises. It was held that the plaintiff was entitled to mesne profits though, not at the rate claimed. The trial Court further held that jurisdiction of the civil Court was not barred by section 28 of the Bombay Rent Act. K) Being aggrieved by the judgment and decree passed by the trial Court, the defendant filed First Appeal No. 352 of 1986 before the learned Single Judge of this Court. The said appeal was dismissed by the learned single Judge of this Court by a judgment and order dated 8-10-1998. The learned Single judge concurred with the findings recorded by the trial Court while dismissing the appeal for the reasons stated in the judgment. 1) The defendant then filed the present Letters Patent Appeal in December, 1998 in this Court against the concurrent findings of the trial Court and of the learned single Judge of this Court.

(3.) WE have heard learned counsel for both the sides at length and perused the entire record. We find that the reasons and conclusions reached by the trial Court and confirmed by the learned Single Judge are cogent and logical and that there is no substance in the appeal for the following reasons.