RAFIUDDIN NURUDDIN MUSALMAN Vs. ABDUYL KARIM ABDUL REHEMAN

JUDGEMENT

(1.) BY this petition, the petitioner original defendant no. 2 has challenged the judgment and decree passed by the learned Assistant judge, Dhule on 16-1-1984 allowing the appeal filed by the plaintiff and setting aside the judgment and decree passed by learned 3rd Joint Civil Judge (J. D.)Dhule, on 31-12-1981, dismissing the suit filed by the plaintiff. The present respondent is original plaintiff. The parties hereinafter will be referred to as the plaintiff and defendant respectively. Respondent No. 2 herein was original defendant who died during pendency of the proceedings and his two heirs were brought on record. In order to understand the controversy/point raised in this petition, the facts which are borne by the record are required to be stated.

(2.) THE plaintiff instituted a suit in the Court of 3rd Joint Civil Judge (J. D.)Dhule, for possession of house CTS No. 4373-B, situate at Dhule proper (hereinafter referred to as suit house ). It is contended by the plaintiff that the suit house is owned by him as he has purchased the suit house from defendant No. 1 under registered sale deed dated 1-5-1975 for a consideration of Rs. 7,000/ -. Accordingly, a sale deed came to be executed and possession also came to be delivered. It is contended by the plaintiff that after the sale transaction, the defendant No. 1 was put in possession as a tenant in presence of the panchas on his request on a monthly rent of Rs. 20/ -. It was contended that the defendant was allowed to occupy the suit house upto 1-8-1975 and it was agreed that after 1-8-1975 the possession will be restored back to the plaintiff. It is contended that thereafter, the defendant No. 1 did not pay the rent even though demanded and neglected to make the payment of the rent as agreed. It was contended that defendant No. 1 did not pay the rent but allowed defendant No. 2 to take possession of the suit house with only intention to create a dispute. According to the plaintiff, defendant No. 2 has no right to remain in possession as he is a trespasser. It was contended that plaintiff required the suit premise for personal bona fide requirement and it is contended that there are six members in his family which includes his brothers, parent and in-laws and the children. It was contended that plaintiff has four brothers who are taking education and the premises is presently occupied by them is not sufficient for their accommodation and they are facing difficulties, as such the suit house is needed for him and his family members for occupation which is genuine need and it is bona fide one. It is contended that the plaintiff requested the defendant No. 1 to vacate the premises and hand over the possession of the house but he refused to do so. It is contended by the plaintiff that defendant No. 1 after obtaining the amount of consideration from the plaintiff, he has purchased a house at another place but he is not occupying the said premises but allowed her daughter to occupy that premises. It is contended that the plaintiff has tried to locate other premises for the defendant No. 1 of which the rent is hardly Rs. 7/- to Rs. 8/-, with intention that defendant No. 1 may occupy that house but the defendant No. 1 in order to harass the plaintiff, has not vacated the suit house nor occupied the premises which was shown by the plaintiff and which were available for occupation on rent. According to the plaintiff, the act of the defendant No. 1 is nothing but an act to harass and trouble the plaintiff. It was contended that the suit house is required for use and occupation for him and for his family members. It was contended that defendant No. 1 is residing with his other sons and at present defendant No. 2 is occupying the suit premises without any authority as he is a rank trespasser. It was further contended that as per the agreement entered into by the parties, the defendant No. 1 did not pay the rent nor vacated the suit premises. Therefore, from 1st September, 1975 till the date of filing of the suit i. e. 19-6-1976 he has not paid the rent which is more than six months and as such he has committed default in making payment. On these premises, the plaintiff prayed for recovery of arrears of rent at the rate of Rs. 20/- p. m. from defendant No. 1 and also for possession. Similarly, he sought possession from defendant No. 2 who according to the plaintiff is a trespasser.

(3.) ON receipt of the summons from the Court, the defendant Nos. 1 and 2 have filed written statement on 7-4-1977 and denied all adverse contentions raised by the plaintiff. The defendants contended that the suit is bad for multifariousness as the plaintiff has claimed possession from defendant No. 1 on the allegation that he is a tenant and defendant No. 2 as a trespasser. Therefore, it was contended that the suit as filed cannot be proceeded with and the suit has to be dismissed on that ground. It is contended that the cause of action shown in the plaint is imaginary one as there is no cause of action to plaintiff to file suit. It was denied by the defendants that the suit house was owned by the defendant No. 1 alone. They have denied the fact that the plaintiff has purchased the suit house for consideration of Rs. 7,000/ -. It is contended that the suit house was of the ownership of defendant No. 1 and 2 and they are in possession of the same as a owner. It was contended that defendant No. 1 has no right to sell the property. It was contended that defendant No. 1 was of 95 years of age and due to his old age, he is not in a position to take any decision and he has become insane. It was contended that taking benefit of the old age of defendant No. 1, the plaintiff obtained a sale deed in collusion with one Sharafuddin, who is son of defendant no. 1. It was therefore, contended that the plaintiff has not acquired the title to the suit premises. It was denied that defendant No. 1 is occupying premises as tenant as alleged by the plaintiff. It was denied by defendant No. 2 that the claim of the plaintiff that he is a trespasser. On the contrary, it was contended that he is in possession of the suit house as owner. Therefore, on these allegations the defendants prayed for dismissal of the suit.