GOPALSING Vs. MUMTAZ HUSSAIN SHAMSUDDIN BOHRA

JUDGEMENT

(1.) THE present Writ Petn. No. 1607/89 is filed by the tenant against the order passed by the Resident Deputy Collector, Buldana by which the Resident Deputy Collector has allowed the applications filed by the landlords for permission to issue a quit notice under the provisions of clause 13 (3) (ii) and (iv) of the C. P. and Berar Letting of Houses and Rant Control Order, 1949 (hereinafter referred to as "the Rent Control Order" for the sake of brevity ). By the instant order, the Resident Deputy Collector, Buldana has also disposed of the applications made by the tenant and the landlords for fixation of fair rent. In view of this, this judgment shall govern the Writ Petn. No. 1490/89 also.

(2.) THE subject matter of the dispute is a house in Ward No. 31, Malkapur which is tenanted to the present petitioner Gopalsing at the monthly rent of Rs. 16. 00. This was a fairly old tenancy and the tenant was in the house for about 40 years. An application came to be made by the landlords - the three brothers who are respondents Nos. 1, 2 and 3 herein on the allegation that they had purchased the suit house on 4-12-1976 by 3 different sale-deeds. They contended that the petitioner had become habitual defaulter inasmuch as the tenant had not paid the rent from 1-10-1977 up to May, 1978. It was also pointed out in the application that the tenant did not pay the rent regularly as per the agreement. In the application a schedule was given covering the period of 1-12-1975 to 30-9-1977 and it was pointed out that the rent was irregularly paid, prior to the filing of the application. It was also pleaded, therefore, that the tenant had fallen in arrears of more than 3 months of rent. It was also contended that the applicants were the real brothers and all the brothers owned the house. It was pointed out that the applicant No. 2, namely, Makbul Hussain was serving as a Teacher in Zilla Parishad and was transferred to Malkapur and at the same time the applicant No. 2 had also got married and had a son from this marriage. It was pointed out, therefore, that the applicant No. 2 was in great difficulty in so far as the house accommodation was concerned and, therefore, the whole house was required by the landlords for the residence of the applicant No. 2 and his family. It is significant to note that now the family consists of not only the applicant, his wife and their son but other children also.

(3.) THIS application was contested by the petitioner. However, it was contended that the house was purchased in three parts. A plea was raised that the applicants were not the real owners but it was their father who had purchased this house in the name of the applicants. As regards the habitual default and the arrears of rent, it was pointed out that though the tenant was in arrears of rent from 1-10-1977, yet it could not be said that the tenant had fallen in arrears of more than 3 months of rent. It was denied that there was an agreement to pay the rent every month. By way of specific pleadings, it was pointed out that the applicants were not the real owners of the property and it was in fact their father who had purchased the property in the name of three applicants in part. It was pleaded that the purchases were made in the name of the three brothers separately and, therefore, it was not known as to which brother owned which part and, therefore, it could not be said that they were the real landlords and their application was not tenable on that count. As regards the habitual default, it was stated that in September, 1976 half of the portion of the house had fallen down and the previous landlord was requested to repair the same. However, without carrying out those repairs he sold the said land to Shamsuddin the father of the applicants and even he had promised to effect the repairs and seeing that Shamsuddin was not keeping his promise, the tenant had offered the rent at the rate of Rs. 8. 00 per month. In that view of the matter, it was pointed out that the tenant was not responsible for the arrears. It was further pleaded that all the applicants lived along with their father and their house was sufficient. On the basis of these pleadings, the parties went for the evidence. On behalf of the landlords, applicant No. 1 Mumtaz Hussain and applicant No. 2 Makbul Hussain were examined while on behalf of the tenant, the tenant himself entered the witness-box.