GOREGAON MALAYALEE SAMAJ Vs. POPATLAL PRABHUDAS AND SONS

JUDGEMENT

(1.) This petitioner seeks to challenge the concurrent decrees passed by the trial Court and the Appellate Court awarding a decree for possession in favour of the respondent No. 1 under section 13(1)(i) of the Bombay Rent Act. The premises in disputes in the present proceedings is an open plot of land admeasuring about 250 sq.ft. forming part property at Byramjee Jeejeebhoy Road, Goregaon (west), Bombay 400 062. The said premises were initially let in favour of one V.O. Michael who was the original defendant No. 1 who in turn constructed a structure thereon and indicate the petitioner who are in Goregaon Malayalee Samaj which is a trust registered under the Bombay Trust Act. respondent No. 1 filed the present suit and 25 other suit claiming possession of different portions of land in occupation in different tenants. Possession was claimed inter alia ,under section 12(1) i.e. where the premises are land , such is reasonably and bona fide required by landlord for erection of new building.

(2.) The said suit was resisted by the original tenant V.O. Michael also the petitioner. They denied that the respondent No. 1 bona fide required the suit premises for the purpose of erecting a new building. According to them the suit premises had been let by predecessor in title of respondent No. 1 and that letting was for the purpose of construction. In pursuance of the said permission granted, the original defendants No. 1 had erected a permanent structure and had inducted the petitioners therein. Respondent No. 1 was thus not entitled to claim possessions of the plot of land as there was already a permanent standing thereon.

(3.) The trial Court decided all the 26 suits by common a judgments and held that the respondents No. 1 had succeeded in proving that the bona fide required suit premises for erecting a new building. Pursuant to the said finding, all the 26, suit for possessions were decreed. The appeals filed by the petitioner and the defendants in the other suit having been dismissed the 26 petition came to be filed in this Court. However except the present petition all other petitions were amicably settled either before or during the hearing of this petition. As no similar settlement could be arrived at in respect of the present petition the same was set out to hearing on merits. 3-A. Mr. Kurup appearing in person for the petitioner vehemently submitted that the present suit related to an plot of land admeasuring 250 sq. ft. only whereas the petitioner are in possession of a structure which is standing not only on the suit land but also on the adjoining plot of land also admeasuring 250 sq. ft. which had been obtained by the petitioner from the predecessor-in- title of the respondent No. 1. According to Shri Kurup even if a decree for possession were to be passed in respect of the suit premises the respondents No. 1 would not be in a position to construct till they obtained a decree also in respects of the adjoining 25 sq.ft. Area of which the petitioner were in possession through the predecessor in - title of the respondents No. 1 A suit for possession in regard to the said 250 sq.ft. was filed in 1975 and dismissed on 8th April, 1983 and no further proceeding have been taken for obtaining possession in respect thereof. Shri Kurup further submitted that certain developments, had taken place during the pendency of this petition and if regard is to be had to the said developments, respondents No. 1 cannot be said to be requiring the suit premises reasonably and bona fide for erection of a new building. A conveyance dated 4th July, 1986 has been entered into between Byramjee Jeejeebhoy Pvt. Ltd., the Head Lessors of the respondents No. 1 in favour of the respondents No. 3 M/s. Falgu International wherein it has been recited that the lease hold rights of the respondents No. 1 have been terminated. According to Shri Kurup the respondents No. 1 has thus no subsisting right title and interest in the suit premises and consequently the decree passed for possession on the ground of bona fide requirement of the respondent No. 1 cannot be sustained. He also contented that the suit premises as found by the lower Appellate Court had been let for the purpose of construction and the respondent No. 1 had constructed a structure and hence , the requirement of the respondents for putting up a new building cannot be said to be bona fide Shri. Kurup also contended that the provision of section 13(1)(i) are ultra vires and same are liable to be stuck down.