ARVIND NARHAR WAGH Vs. CHINTAMAN GANESH KHIRE

JUDGEMENT

(1.) This writ petition under Article 227 of the Constitution of India has been filed by the original defendant No. 2, who claims to be the sub-tenant of the suit premises, against the judgment and decree passed by the III Extra Assistant Judge Pune, dated 9th November, 1981. The controversy involved in this writ petition lies in a very narrow compass. Ganesh Appaji Kjire, the deceased father of the plaintiff, was in possession of the suit premises on a long lease of 99 years since 1945 under a registered Rent Note from Nilkanth Balwant Natu and his son Balwant Nilkanth Natu. After the death of Ganesh Khire, the plaintiff inherited the tenancy, rights qua the suit property. Shed A was erected by the deceased father of the plaintiff. The father of the plaintiff had let out the open plot and shed A to defendant No. 1 Chintaman Narayan Khole sometime in the year 1950 for carrying on the business of selling charcoal and firewood. Initially the contractual rent was Rs. 55/- per month. This rent was subsequently increased to Rs. 65/- and in addition defendant No. 1 was to pay to the plaintiff the education cess. When the suit was filed, the premises A together with the shed were in possession of original defendants Nos. 3 and 4 Pandharinath and Dnyaneshwar and premises B with the shed were in possession of defendant No. 2, the present petitioner. It appears that so far as the premises A are concerned, defendant No. 1 transferred his interest in the business together with the goodwill etc. in favour of defendants Nos. 3 and 4 under a registered document styled as a sale-deed. However, we are not concerned in this writ petition with the said premises or the assignment in favour of defendants Nos. 3 and 4. So far as defendant No. 2, the present petitioner is concerned, it was the case of the plaintiff that defendant No. 1 had created a sub-lease in favour of this defendant sometime in the year 1963. This sub-tenancy was created without his consent and, therefore, defendant No. 1 was liable to be evicted under section 13(1)(e) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Act). The plaintiff, therefore, served a notice on all the defendants and thereafter filed a suit for eviction

(2.) In the suit filed by the plaintiff, he had sought possession of the suit property in all on five grounds. Firstly, it was contended by the plaintiff that the induction of defendant No. 2, the present petitioner, in the premises B by defendant No. 1, the head-tenant, was a transaction of unlawful sub-letting and, therefore, he was entitled to get possession of the suit premises under section 13(1)(e) of the Act. So far as the other grounds are concerned, they related to defendants Nos. 3 and 4. The plaintiff had also claimed possession of the property on the ground that the defendants had erected on the suit premises, without his consent in writing, certain permanent structures. Contention was also raised that defendant No. 1, the head-tenant was a defaulter in payment of rent and, therefore, the plaintiff was entitled to get possession of the property under section 12(3) of the Rent Act. It was also contended that he required the suit premises bona fide for the construction of a building for the occupation of his family.

(3.) The claim made by the plaintiff was resisted by all the defendants. Parties examined witnesses in support of their rival contentions. The learned Judge of the Small Causes Court negatived the plaintiffs contentions on all counts, but held in favour of the plaintiff that the assignment of tenancy rights by defendant No. 1 in favour of defendants Nos. 3 and 4 was unlawful and on this ground alone the trial Court passed a decree in favour of the plaintiff so far as the premises A were concerned. The trial Court also granted a money decree of Rs. 247.19 in favour of the plaintiff and against defendant No. 1. Being aggrieved by this judgment and decree passed by the Court of Small Causes, Pune, all the parties filed appeals to the District Court. Since these appeals arose out of one and the same judgment, they were heard together and were disposed of by a common judgment dated 9th November, 1981. Before the Appeal Court, the claim for possession on the ground of reasonable and bona fide requirement was not pressed by the plaintiff. Before the Appeal Court it was contended by the plaintiff that the transaction between original defendant No. 1 and defendant No. 2, the present petitioner, was that of leave and licence and not of sub-tenancy. It was also contended that when the tenancy of the head-tenant i.e. defendant No. 1 is terminated, calves must go with the cow and, therefore, defendant No. 2, the present petitioner, is not entitled to any protection under the Rent Act and the plaintiff is entitled to get possession of the premises in his possession. It appears that the Appeal Court dismissed the appeal filed by original defendants Nos. 3 and 4. The Appeal Court also recorded a finding that the defendant No. 2, the present petitioner was a lawful sub tenant of the suit premises, known as premises B as he was inducted in the premises with the consent of the plaintiff. However relying upon the decision of this Court in (Bijibai Saldhana v. Rama Manohar Thannu Mishra) 70 Bom.L.R. 428, the Appeal Court came to the conclusion that the petitioner is not entitled to any protection under the Rent Act and, therefore, modifying the decree passed by the trial Court, the Appeal Court allowed the suit qua defendant No. 2 also. It is this part of the decree which is challenged in this writ petition by the original defendant No. 2, the lawful sub-tenant.