ASHWINKUMAR KANAKRAJ GANDHI Vs. LAXMIDAS BHAGWANDAS MEHTA

JUDGEMENT

(1.) This petition is directed against the judgment and order passed by the Additional District Judge, Jalgaon in Civil Revision Application NO.11 of 1989 dated 14th September, 1990. The Petitioner also seeks declaration to the effect that he is legal heir of deceased Kashiram in view of provisions laid down under section 5 (11) (c) (ii) of the Bombay Rents Hotel and Lodging Houses Rates Control Act, 1947 (hereinafter referred as the Act of 1947, for short).

(2.) Brief facts, necessary for consideration of this writ petition, are that one Mr. Laxmidas Bhagwandas Mehta had filed Regular Civil Suit No.408 of 1976 against eight persons. The suit was for vacant possession and arrears of rent, permitted increases and damages under the provisions of the Act of 1947. Possession was sought on the ground of default in payment of rent, non-user of the suit property continuously for more than six months period preceding the date of filing of the suit and unlawful subletting of the suit property in favour of original defendant Nos.2 to 8 by defendant No.1. This Regular Civil Suit no.408 of 1976 was decreed by the learned 2nd Joint Civil Judge, Junior Division, Jalgaon by the judgment and decree passed on 10th of April, 1981. The aggrieved defendant No.1 preferred Regular Civil Appeal No.252 of 1981 challenging the judgment and decree passed in Regular Civil Suit No.408 of 1976. The defendant No.1/ Appellant Kashinath Balmukund Vyas died on 28th November, 1984 i.e. during the pendency of Regular Civil Appeal No.252 of 1981. After his demise, the present petitioner Mr. Ashwinkumar, who happens to be the son of original defendant no.2, filed an application Exhibit-34. It is his contention that deceased Kashinath/ defendant No.1 has executed a will on 5th March, 1984 and tenancy rights in relation to the suit property have been bequeathed in his favour. According to him, he has acquired the status and rights as tenant in the suit property. He claims these rights based on the will dated 5th March, 1984 and the provisions laid down under section 5 (11) (c) (ii) of the Act of 1947. One lady Mrs. Ayodhyabai alias Meena had also stalked a claim of legal heir/ representative of deceased defendant No.1 Kashinath. According to her contention, she was mistress of deceased defendant and had acquired the status of legal representative/ heir of deceased defendant No.1 Kashinath. Since there was a dispute regarding status of legal heir of deceased Kashinath, learned Additional District Judge, Jalgaon referred this issue under Order 22 Rule 5 of the Code of Civil Procedure for recording evidence and decision, to the learned 2nd Joint Civil Judge, Junior Division, Jalgaon. The learned 2nd Joint Civil Judge, Junior Division, Jalgaon, by the order passed on 21st March, 1989, held that neither Ayodhyabai alias Meena nor the present Petitioner Ashwinkumar are legal heirs of deceased defendant No.1 Kashinath under section 5 (11) (c) (ii) of the Act of 1947. This order was subject matter of Revision Application No.11 of 1989 before the learned District Judge, Jalgaon, who, after hearing the parties, rejected the said revision application. This writ petition, as noted above, challenges the said order passed by the learned District Judge, Jalgaon/ Revisional Court, in Revision Application No.11 of 1989.

(3.) It is not in dispute that the suit premises was let out to original defendant No.1 Kashinath for commercial purpose. It is also not in dispute that decree for possession was passed in favour of the original plaintiff by the trial Court, in Regular Civil Suit No.408 of 1976. On behalf of the Petitioner, contention is raised that the Revisional Court has recorded an illegal finding that the Revision Application is not maintainable under section 29 of the Act of 1947. Another finding of the revisional Court that scribe of the will in question is not attesting witness is per-se illegal. According to the learned counsel for the Petitioner, the petitioner had acquired the status of legal heir by the will executed by deceased defendant No.1 on 5th March, 1984 and, therefore, has acquired tenancy rights under section 5 (11) (c) (ii) of the Act of 1947. Per contra, the learned counsel Mr. Chaudhary for Respondents, submitted that the question of fact regarding heirship of deceased defendant No.1 Kashinath is decided by the Court at the first instance. According to him, the will in question is not established in view of non-examiantion of attesting witness. The scribe of the document, according to him, cannot be said to be the attesting witness. The death of defendant No.1 Kashinath is after passing of the decree and, therefore, status of tenant cannot be acquired by the Petitioner Ashwinkumar.