FAREDOON MANECKJI DALAL Vs. PHIROZ BOMANJI JAVERI

JUDGEMENT

(1.) THE plaintiff has filed this suit for eviction of the defendant on the ground that the defendant is in wrongful occupation of a premises on the ground floor of a building situated at 21, Meghraj Sethi Marg, Bombay 400 008, and that he is a trespasser. The plaintiff claims that the plaintiff has been the owner of the property consisting of a building of one storey situated at Meghraj Sethi Marg, Bombay 400 008, and one Maneckji M. Javeri was a statutory tenant of the premises on the ground floor of the said building till his demise on 17th of April, 1968. On the death of the said Maneckji M. Javeri, at the request of his sister Miss. Cooverbai M. Javeri and his brother Kaikhushru M. Javeri, the statutory tenancy standing in the name of the said Maneckji M. Javeri was transferred by the plaintiff in the name of Miss. Tehmina M. Javeri another sister of the said deceased Maneckji M. Javeri. The plaintiff also claims that although the said Maneckji M. Javeri and the said Miss. Tehmina M. Javeri were statutory tenants under the Rent Act, the plaintiff, in order to avoid any possible contention, gave to Miss. Tehmina M. Javeri a notice to quit dated 24th November, 1969 whereby he called upon her to quit, vacate and give peaceful possession of the said premises to him on the expiration of the month following the month in which she received the said notice. The plaintiff also claims that along with the said Miss. Tehmina M. Javeri, Miss. Cooverbai M. Javeri and their brother Kaikhushru M. Javeri were residing in the said premises; that on the death of the said Miss. Tehmina M. Javeri which took place on or about 25th day of October, 1975, the plaintiff, with the consent of the said Kaikhushru M. Javeri accepted Miss. Cooverbai M. Javeri as his statutory tenant; that the said Kaikhushru M. Javeri died during the life-time of Miss. Cooverbai M. Javeri on or about 3rd July, 1976; that Miss. Cooverbai M. Javeri also died on or about 4th September, 1976; without leaving any member in her family; that on the death of Miss. Cooverbai M. Javeri, the statutory tenancy of Miss. Cooverji M. Javeri came to an end and therefore, the plaintiff became entitled to recover possession of the said premises; that, as far as the plaintiff is aware, the defendant has been wrongfully occupying the said premises since the demise of late Miss. Cooverji M. Javeri without any right, title or interest in respect thereof; that the occupation by the defendant of the said premises is unlawful and he is a mere trespasser; that by a letter dated 20th of October, 1976 addressed to the defendant, the plaintiff intimated the defendant that late Miss. Tehmina M. Javeri was a statutory tenant only under section 5 (11) (c) of the Bombay Rent Act in respect of the said premises and that the statutory tenancy was already terminated by a notice dated 24th November, 1969; that the plaintiff further pointed out in the said letter that the said Miss. Cooverbai M. Javeri, after her death on 4th September, 1976, had left no one as a member of the family residing with her at the time of her death; that he also pointed out that the defendant had no right, title or interest in the said premises and that his occupation of the premises after the death of Miss. Cooverbai was that of a trespasser and that he was liable to be forthwith evicted from the premises; that he also pointed out in the said letter that the defendant was also residing with his mother-in-law at Belvedere Court, M. Karve Road, Bombay 20, with his wife; that the defendant made certain untenable claim in respect of the said premises and claimed that he was entitled to allow others to stay in the said premises and that the said claims of the - defendant were refuted by the plaintiff in correspondence; that the plaintiff, in view of the above facts, is entitled to a declaration that the defendant is a trespasser and/or has no right, title or interest in respect of the said premises and the plaintiff is entitled to a decree directing the defendant to hand over quiet, vacant and peaceful possession of the said premises and that the - plaintiff is also entitled to receive damages from the defendant for the wrongful use and occupation of the premises from 4th September, 1976 till the date of the suit aggregating to Rs. 4,500/- and that the defendant is also bound to pay mesne profits for wrongful use and occupationof the said premises at the rate of Rs. 500/- per month from the date of the suit till the defendant hands over quiet vacant and peaceful possession of the said premises to the plaintiff.

(2.) THE plaintiff also claims that the defendant is not permitting the plaintiff to inspect the premises and has committed various wrongful acts like allowing others to stay and occupy the said premises even during his absence unauthorisedly parking a car and scooter in the compound of the said building, breaking drainage pipe so that dirty water flows in the compound. The plaintiff also claims that the defendant is also staying in premises with mother-in-law at Belvedere Court, with his wife and daughter and has been allowing others to stay and occupy the said ground floor premises during his absence and has wrongfully claimed in writing that he is entitled to do so. The plaintiff also claims that he apprehends that the defendant is purporting to create right, title and interest in favour of a third party and that he intends to transfer the said premises to some third parties. The plaintiff also prayed for certain interim reliefs pending the hearing and final disposal of the suit.

(3.) THE defendant filed his Written Statement and resisted the suit. The defendant contends in his Written Statement that on the face of the plaint, the suit is for recovery of possession by landlord from a tenant, and therefore, Part II of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 applies and that this Court therefore has no jurisdiction to entertain and try this suit. The defendant further contends that Boman Munchersha Javeri became a tenant of the ground floor and one room in the outhouse over 30 years ago and that he was residing in the said premises with his brothers Maneck Munchersha Javeri, an Advocate, Kaikhushru Munchersha Javeri and three sisters, Tehmina Munchersha Javeri, Shirin Munchersha Javeri and Cooma (Cooverbai) Munchersha Javeri; that at the time the premises was rented out to Boman Munchersha Javeri the plaintiffs father Dr. Maneckji Pallonji Dalal was the owner of the said property and the rent bills were issued in the name of the said Bomanji Javeri, and therefore, Bomanji Javeri was a contractual tenant in the said premises; that Boman Munchersha Javeri died on or about 27th June, 1967 whereafter the tenancy was transferred to the name of Maneck Munchersha Javeri; that the said Maneck Munchersha Javeri died on 17th of April 1968, whereafter the tenancy was transferred to the name of the estate of the said Maneck Munchersha Javeri, and after his death to the name of eldest sister Tehmina Munchersha Javeri. The defendant also contends that Shirin Munchersha Javeri died on 17th February, 1960. He also claims and contends that the defendant was adopted by the said Boman Munchersha Javeri when he was a child of six month age and came to reside and resided with the said Boman Munchersha Javeri and others i. e. the Javeri family; that the defendant, to the knowledge of the plaintiff and members of his family, has always resided in the said premises along with other members of Javeri family as an adopted or a "palak" son; that the said Boman Munchersha Javeri executed a Deed of Adoption on or about 28th September, 1957, and confirmed the said adoption.