GENURAM TUKARAM SANAS Vs. JAGANNATH RAGHU SANAS

JUDGEMENT

(1.) By this petition under Article 227 of the Constitution, the petitioners seek to challenge the order dated 31-1-1970 passed by the Court of Small Causes. Bombay, in Ejectment Application No. 616/E of 1965 under section 41 of the Presidency Small Cause Courts Act.

(2.) The suit premises in the present proceedings are one room, being Room No. 61 in Khimji Chawl No. 2 situate at Tulsi Pipe Road, Bombay 13. The rent receipts of the said room stood in the name of one Jagannath Raghu Sanas. The petitioners in these proceedings along with one Arvind Babu Sanas were also in occupation of the said room along with the said Jagannath and his family. According to the said Jagannath, the two petitioners and the said Arvind Babu Sanas were occupying the said premises with his permission. By his notice dated 16-5-1965 the said Jagannath revoked the licence of petitioner No. 1 and called upon him to quit and vacate the said premises. The said notice was replied to by the petitioner No. 1 on 20-5-1965. Thereafter the said Jagannath filed the aforesaid ejectment application in the Small Causes Court, Bombay, against the present petitioners and the said Arvind Babu Sanas. In the separate defences filed by the present petitioners and the said Arvind Babu Sanas, the petitioner No. 1 claimed that petitioner No. 2 and the said Arvind Babu Sanas had come into the premises through him. It was contended by the petitioners and the said Arvind that they were the co-tenants or joint tenants of the suit premises; that the suit premises were a sitting room meant for residents of their village who stayed in Bombay for the purpose of carrying out their avocation, that the rent receipts were issued in the name of the said Jagannath only for the sake of convenience and that in fact all the residents of the village had interest in the tenancy rights of the suit premises. On these pleadings the Small Causes Court did not frame a preliminary issue as to whether the present petitioners and the said Arvind were the tenants or sub-tenants of the suit premises since the only claim made in the defence was that they were the co-tenants or joint tenants along with the said Jagannath. However, the Small Causes Court came to the conclusion that right from the year 1941 to 1946 the said Jagannath resided in the suit premises along with his family and the rent receipts stood in his name from the year 1941. There was no evidence to show that thereafter the said Jagannath had surrendered his tenancy rights in the suit premises in favour of anybody else and that there was no evidence to prove the version of the respondents to the said ejectment application that the landlord had given the tenancy of the suit premises to the villagers jointly. The Court therefore held that Jagannath was alone the tenant of the suit premises and negatived the theory advanced on behalf of the respondents to the said ejectment application that they were the co-tenants or joint tenants along with Jagannath. In view of the fact that it was claimed by petitioner No. 1 that petitioner No. 2 and the said Arvind had come into the premises through his permission which claim was admitted by petitioner No. 2 and the said Arvind, the Court held that the revocation of the licence of the petitioner No. 1 alone was sufficient and therefore passed a decree of eviction against the present petitioners and the said Arvind whom he held to be the licencees. It is against this order of eviction that the present petitioners have preferred this petition.

(3.) Mr. Kachare who appears for the petitioners has urged that the Court below erred in not framing a preliminary issue as to the tenancy of the petitioners. I find that there is no substance in this plea for the simple reason that the petitioners had not claimed either tenancy or sub-tenancy of the suit premises. Their plea throughout has been that they were the co-tenants along with the said Jagannath. The Court below has rightly held that in view of this fact it was not called upon to frame a preliminary issue.