BHAGIRATHIBAI RAMCHANDRA SHELAR Vs. HAJEE HASSEN ADAMJEE LAHER

JUDGEMENT

(1.) THE plaintiffs/landlords filed R.A.E. Suit No.1830 of 1965 in the Court of Small Causes at Bombay against defeNdant no.1 Ganu Rama Gaikwad and defendant no.2 Ramchandra Ramji Shelar for possession of the suit premises. The suit premises are tenement no.38 in a building known as 'Patel Building' at Naigaum, Mumbai, owned by the plaintiffs. The grounds for possession are that defendant no.1 failed and neglected to pay arrears of rent from August 1962 that defendant no.1 has made a permanent construction of a loft in the suit premises and that defendant no.1 has unlawfully sub-let a portion of the suit premises to defendant no.2 sometime in 1962. The suit was originally filed only against defendant no.1, but subsequently, at the request of defendant no.2, defendant no.2 was added as party to the suit. Defendant no.1 remained absent. Defendant no.2 resisted the suit and specifically contended that he has been staying in the suit premises right from 1937 as a sub-tenant of defendant no.1 and that he has become a lawful sub-tenant in respect of the suit premises. Further, defendant no.2 has contended that after July 1962, the rent rendered by him has been refused by the plaintiffs.

(2.) AFTER recording evidence, the learned Judge of the trial Court held that from the record of the Gold Mohur Mills where defendant no.2 was serving, it is established that from 1937 the address of the suit premises was mentioned as the address of defendant no.2. The premium receipt issued by the New Swastik Assurance Company in the year 1946 also shows the suit premises as the address of defendant no.2. The birth certificate of the daughter of defendant no.2 in the year 1955 also mentions the suit premises as the address of defendant no.2. The learned Judge held that the evidence categorically shows that defendant no.2 has been staying in the suit premises much prior to 21.5.1959. The learned Judge has meticulously assessed the evidence on behalf of the plaintiffs. Witness Gulam Mohamed Husainbhai Balsadwala joined the services of the plaintiffs in 1955 and, therefore, he had no knowledge of the events which were prior to 1955. The other witness, viz., Rameshwarprasad Tiwari in cross-examination has admitted that from 1960 to 1970 he was out of Mumbai. The first witness has stated that de-fendant no.1 sub-let the suit premises and handed over the possession of the front portion to defendant no.2 in the year 1962 and went to his native place whereas the second witness has stated that defendant no.2 came to the suit premises sometime in the year 1960. In view of the contradiction as well as other factors already mentioned, the learned Judge did not accept the evidence of the two witnesses. The learned Judge felt that documentary evidence clearly shows that defendant no.2 has been staying in the suit premises much prior to 1959. On this basis, the learned Judge of the trial Court held that the evidence shows that defendant no.2 has been in occupa-tion of the suit premises prior to the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959 and, as such he has become a lawful sub-tenant in respect of the suit premises.

(3.) BEING aggrieved by the said judgment and decree, the original plaintiffs/landlords preferred Appeal No.559 of 1972 to the Bench of the Court of Small Causes at Bombay. The learned Judges observed that defendant no.1 was serving in Bombay till the year 1963 and, in fact, defendant no.1 joined Gold Mohur Mills in July 1950 and was in the employment of the Mill till 20.1.1964. The learned Judges felt that defendant no.1 was occupying the suit premises even after 21.5.1959. Some other evidence also shows that defendant no.1 was in the suit premises till 21.10.1963. The learned Judges observed that it is true that there is evidence to show that defendant no.2 Ramchandra Shelar has been occupying the suit premises from 1945 and the service record shows that in the Gold Mohur Mills, the residential address of defendant no.2 right from 1937 is the same is that of the suit premises. The learned Judges observed that documentary evidence would no doubt show that deceased Ramchandra Shelar was also occupying the said suit premises since prior to 21.5.1959 and that would negative the case of the plaintiffs on the basis of oral evidence of the Rent Collector that he came to occupy the suit premises only in the year 1960 or 1962.