SHABU RAMCHANDRA LOTLIKAR Vs. TULSIDAS SHABU LOTLIKAR

JUDGEMENT

(1.) HEARD Shri S. S. Kantak, learned Senior Counsel appearing for the Appellants, Shri Usgaonkar, learned Counsel appearing for the Respondent no. 1 and Shri Padiyar, learned Counsel appearing for the Respondent no. 2.

(2.) THE above Appeal came to be admitted on 04.08.2005 on the following substantial questions of law :

(3.) DURING the course of the hearing of the above Appeal, Shri S. S. Kantak, learned Senior Counsel, has strongly argued in support of the substantial question of law (A) framed by this Court. The learned Senior Counsel has pointed out that the suit filed by the Respondent no. 1 is on the premise that his mother had lease hold rights which were in the name of the original Appellants, who has now expired. Learned Senior Counsel has pointed out that during the lifetime of the origianl Appellant, the lease hold rights of the Appellants were intended to be conveyed in favour of Appellant no. 1(r) and, as such, the Respondent no. 1 filed the suit claiming that the lease hold rights had devolved upon him upon the death of the said mother. Learned Senior Counsel further pointed out that the fact finding Courts below held hat the lease hold rights of Municipal premises are inherited by the heirs is totally misplaced as, according to him, the provisions of The Goa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968 and Rules, 1969, are not applicable to the Municipal Building. Learned Senior Counsel further pointed out that Section 3 of the said Rent Control Act clearly excludes the applicability of the Rent Control Act to the Building belonging to Statutory Authorities which include Municipalities. Learned Senior Counsel further pointed out that though the learned Judge has relied upon the Judgment of the Apex Court in the case of Gian Devi Anand vs. Jeevan Kumar and Ors, 1985 AIR(SC) 796 to hold that commercial tenancies are heritable, the learned Judge lost sight of the fact that the provisions of the Goa Rent Control Act, are not applicable to the Municipal Buildings. Learned Senior Counsel further pointed out that as the provisions of the Goa Rent Control Act are not applicable to such buildings, the question of examining the inheritance of the lessee upon the death of the original lessee is totally misplaced. Learned Senior Counsel further pointed out that as the provisions of the Goa Rent Control Act are not applicable to such buildings, the finding of the Lower Appellate Court that the lease hold rights are inherited by the Respondent no. 1 are unsustainable. The learned Senior Counsel has thereafter relied upon the Judgment of the Apex Court in the case of Shriram Mandir Sansthan vs. Vatsalabai and Ors, 1999 1 SCC 657 to advance his arguments that once a person cannot inherit a right under any special -law, the question of claiming any inheritance under the general law would not arise. Learned Senior Counsel further pointed out that as such the question of holding that the right of inheritance is governed under the general law by the Lower Appellate Court is totally misplace. Learned Senior Counsel has taken me through the observations of the facts of the said Judgment to point out that the Judgment clearly applies to the facts and circumstances of the case. Learned Senior Counsel has thereafter taken me through the Judgment of the Lower Appellate Court and pointed out that the Lower Appellate Court was not justified to come to the conclusion that the rights of lessees of Municipal Buildings are heritable. Learned Senior Counsel thereafter pointed out that in any event during the pendency of the above Second Appeal, the original Appellant had already expired and, as such, according to him, the cause of action would not survive as in any event the inheritance of the lease hold rights upon the death of the Original Appellant would have to be examined on its own merits by the Municipal Council. Learned Senior Counsel as such pointed out that the substantial question of law framed by this Court is to be answered in favour of the Appellants.