MOHAMAD HUSSEIN ALI AKBAR Vs. LAXMAN DATTATRAYA BHAVE

JUDGEMENT

(1.) AN interesting question falls for consideration in this petition viz. whether a tenant, whose tenancy has been terminated in respect of the premises which are subsequently destroyed upto the plinth on account of a vis majore, can claim a right to possession of new premises to be constructed at the site of the old premises, under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Rent Act).

(2.) THE facts involved in the petition are as follows: A plot of land bearing City Survey No. 1276/A on the Jangli Maharaj Road, Poona, belonged originally to defendants Nos. 1 to 6 who leased out the same to Messrs Bagate and Chaudhary on October 17, 1945 for constructing a building which among other things consisted of three shops on the ground floor. The plaintiffs were the tenants of one of the said shops which was the middle one. In course of time, Messrs Bagate and Chaudhary assigned their leasehold rights in the said plot as well as their ownership rights in the said building, to others and ultimately on August 12, 1948 the same came to be assigned in favour of defendant No. 7 who took the said assignment on behalf of the joint family of which he was a member. Thus the joint family of defendant No. 7 became, on that day the lessee of the plot and the owner of the said building and therefore the landlord of the plaintiffs. Thereafter, on January 24, 1961 there was a partition in the joint family of the owners and by virtue of the said partition, defendants Nos. 8 to 10 became the landlords of the present plaintiffs in respect of the said shop. On March 25, 1961 the plaintiffs attorned to defendants Nos. 8 to 10 as their tenants. Thereafter by notice dated April 14, 1961 the landlords terminated the tenancy of the plaintiffs with effect from May 31, 1961. On July 12, 1961 the entire building including the plaintiffs' shop (hereinafter referred to as the premises) were destroyed upto the plinth level by the flood -waters commonly known as the Panshet flood.

(3.) MR . Dalvi, the learned counsel appearing for the petitioners, raised four contentions. His first contention was that the finding of fact recorded by the appeal Court that both the plaintiffs were the tenants of the premises was erroneous. His second contention was that the Rent Court had no jurisdiction to entertain and try the present suit and therefore the decree passed was void. His third contention was that the plaintiffs had lost their tenancy rights on and after July 12, 1961 and as such there was no relationship of landlord and tenant subsisting between them, and his last contention was that, in any case, no mandatory injunction could have been granted as has been done by the appeal Court in view of the laches on the part of the plaintiffs.