BHIMALE AND SONS Vs. MOTI DINSHAW IRANI

JUDGEMENT

(1.) These are cross proceedings filed by rival parties challenging the judgment and decree dtd. 30/11/2023 passed by the District Judge, Pune in Regular Civil Appeal No.560/2014. The tenant is aggrieved by dismissal of Regular Civil Appeal No.560/2014 and confirmation of the eviction decree dtd. 9/9/2014 passed by the Small Causes Court, Pune in Civil Suit No.195/2010 by which the Defendant is directed to handover possession of the suit premises to the Plaintiffs. The Plaintiffs- landlords, on the contrary, are aggrieved by rejection of cross- objections by the Appellate Court holding that Defendant Nos. 2 and 3 are tenants of Plaintiffs and rejecting the ground of unlawful subletting. Plaintiffs desire that their case of Defendant No.1 is the tenant, who unlawfully sublet the premises in favour of Defendant Nos.2 and 3, be accepted in addition to the ground of default in payment of rent. The Trial Court and the Appellate Court have however held Defendant Nos. 2 and 3 (Revision Applicants) to be the direct tenants of Plaintiffs and have decreed the suit on the sole ground of default in payment of rent by them. Defendant Nos.2 and 3 have accordingly filed Civil Revision Application No.71/2024 challenging the eviction decree whereas the Plaintiffs have filed Writ Petition No.8788/2023 challenging rejection of their cross-objections by the Appellate Court. Rule in Writ Petition No.8788/2024. With the consent of learned counsel appearing for parties, Civil Revision Application and Writ Petition No.8788/2024 are taken up for final disposal.

(2.) A Plot of land admeasuring 125 ft x 50 ft together with shed constructed thereon admeasuring 20 ft x 30 ft situated at Survey No.101 final Plot No.780, Town Planning Scheme No.76, Bhamburda Shivajinagar, Pune are the suit premises. Though original plot of land admeasuring 85 Khans was sought to be included in the description of the suit property, the plaint was apparently amended by incorporation the correct measurement of plot admeasuring 125 ft x 50 ft and shed constructed therein admeasuring 25 ft x 30 ft. It appears that the suit premises were owned by Late Rashid Khodaram Irani, who passed away on 7/11/1970. Plaintiff No. 2, Jehangir Dinshaw Kaikhashroo Moriabadi/Irani claims to be the grandson of real brother of Rashid Khodaram Irani. Plaintiff No.1 is the mother of Plaintiff No.2. It is claimed that the father of Plaintiff No. 2 and husband of Plaintiff No.1 Dinshaw Irani used to collect rent in respect of the suit premises and after his death on 5/7/1992, Plaintiffs have become owners and landlords in respect of the suit premises. It is claimed that late Gulam Husain was inducted as tenant in the suit premises, who was conducting the business of raddi (scrap) depot. Defendant No.1 is the son of late Gulam Husain. Plaintiffs claimed that Defendant No.1 illegally inducted Defendant Nos.2 and 3 in the suit premises as sub-tenant without the consent of landlords and Defendant Nos. 2 and 3 were using and possessing the suit premises in the capacity as illegal sub-tenants. That Defendant Nos.2 and 3 started the business of Toddy in the suit premises, without the consent of the landlords and against the provisions of law and thereby changed the use of the suit premises. It is also claimed that Defendant Nos.2 and 3 encroached upon other portions of plots belonging to the Plaintiff apart from the suit premises, exceeding 85 Khans which was originally let out to Ghulam Husain. That Defendant No.1 had carried out illegal construction at the suit premises without the consent of the landlords. Plaintiffs also claimed that Defendant No.1 was in arrears of rent, permitted increases and taxes since 1/2/1993. Plaintiffs accordingly issued notice dtd. 19/1/2010 on all the three Defendants and demanded rent from Defendant No.1 and terminated his tenancy.

(3.) In the above factual background, Plaintiffs instituted Civil Suit No. 195/2010 in the Court of Small Causes, Pune seeking recovery of possession of the suit premises from the Defendants on the grounds of unlawful subletting, change of user, encroachment, permanent additions and alterations and default in payment of rent by Defendant No.1. Though Defendant Nos. 2 and 3 were also impleaded to the suit, the plaint proceeded on a footing that only Defendant No.1, in his capacity as son of late Gulam Husain, is the tenant in respect of the suit premises. It appears that Defendant No.1 did not appear in the suit and the same was defended only by Defendant Nos. 2 and 3, who denied ownership of the suit premises by the Plaintiffs and contended that they were inducted as direct tenants by Mr. Dara Kaikhasbroo Irani, who is the real owner in respect of the suit premises. Defendant Nos. 2 and 3 contended that prior to the year 1968, there existed a godown of scrap material at the plot, in which the erstwhile tenant Ashok Krishnappa Shinde was running toddy shop. In the year 1975-76, Ashok Krishnappa Shinde left the premises and Mr. Dara Kaikhasbroo Irani inducted the partnership firm 'M/s. Bhimale and Sons' as tenant in respect of the suit premises to run toddy business. That necessary licenses were issued by the Excise Department in favour of M/s. Bhimale and Sons and that therefore the Municipal Corporation also transferred the tax assessment in the name of the firm by deleting the name of Ashok Krishnappa Shinde. Defendant Nos. 2 and 3 claimed that they have paid rent to Mr. Dara K. Irani from time to time and after his death, the rent was paid to Marzaban Fardun Irani till 31/8/2009. After the death of Marzaban Fardun Irani in the year 2009, Defendant Nos. 2 and 3 could not have pay rent on account of lack of knowledge about real owner. Defendant Nos. 2 and 3 also pleaded abut existence of disputes relating to ownership of the suit premises and contended that in addition to disputes between the Plaintiff and Mr. Dara K. Irani, one Kishori Bhagat also claims ownership in respect of the suit premises, whose name is mutated in the revenue records. Defendant No.2 accordingly questioned the jurisdiction of the Small Causes Court to entertain the suit in absence of existence of any landlord-tenant relationship between them and the Plaintiffs. Defendant Nos.2 and 3 accordingly prayed for dismissal of the suit.