PUDAIRAM MOHAN VARMA Vs. PETER MONTHU D MELLO

JUDGEMENT

(1.) THESE appeals are directed against the common judgment and order dated 30.8.93, passed by the Principal Judge, City Civil Court, Bombay, dismissing the Suit being Long Cause Suit No.6428 of 1990 and decreeing the suit being Long Cause Suit No.6126 of 1982.

(2.) THE suit being Long Cause Suit No.6126 of 1982 was filed by the present respondent No.1 (who is Respondent No.2 in First Appeal No.173 of 1996) and sought declaration and possession of the suit property i.e. Room No.4, Block B, M.N. Nagar, R.A. Kidwai Marg, Wadala; Bombay and also prayed for injunction against the original defendant No.1 i.e. the present appellant. It reveals that Long Cause Suit No.6428 of 1990 was filed by the present appellant for injunction against the respondent No.1. The dispute is regarding the title and possession of the suit premises consisting of one room and small kitchen. The suit premises belonged to Respondent No.2 (which is Respondent No.1 in First Appeal No.173 of 1996) B.M.C. and B.M.C. on monthly rental basis given it to the occupants. It reveals from the record that originally, in the year 1958-59, the suit premises was let out to one Matapher. Since he has expired in 1962, suit premises was inherited by his son Bansraj. In the year 1972-73, B.M.C. has transferred the tenancy of the suit premises in favour of Bansraj. In the year 1978, Bansraj expired and thereafter, in March, 1979, tenancy of the suit premises was transferred by B.M.C. in favour of Smt.Hubrajidevi, the widow of Bansraj. It is submitted that in September, 1979, Smt.Hubrajidevi gave an application alongwith affidavit to B.M.C. by showing her willingness to transfer the suit premises in favour of Respondent No.1. In pursuance of that application, in April, 1982, transfer was effected. It is submitted that right from 1972 to 1982, transfers in favour of tenants by heirs to three generation were not objected by the appellant but in the year 1990, he filed suit being Long Cause Suit No.6428 of 1990, challenging the transfer of tenancy in favour of the present Respondent No.1 on the ground that notice under section 105-B of the B.M.C. Act was not issued to him and he was not party to the enquiry under the said provision. Further, it has been challenged by way of suit being Long Cause Suit No.6126 of 1982 on the ground that notice under section 527 was not issued to the B.M.C. by the respondent No.1-plaintiff and therefore, the suit was not maintainable. It is pertinent to note here that B.M.C. has not taken such application against the suit filed by the Respondent No.1. The dispute regarding the title and the right of possession was started long back in 1975. It is the case of the appellant that he was staying with Matapher since 1958 and continued to stay with his son Bansraj after the death of Matapher and after the death of Bansraj, he was continued to stay with Smt.Hubrajidevi, the widow of Bansraj. It is the case of the appellant that after the death of Smt.Hubrajidevi, he was in exclusive possession of the suit premises. It is further the case of the appellant that in the year 1978 when he had gone away from Bombay by locking the room, in his absence, respondent No.1 opened the lock and illegally started staying in the suit premises. It is the case of the appellant that he took legal proceeding against Respondent No.1 in the Civil Court and possession was restored to him in 1982. Thus, the appellant submitted that he was in possession of the suit premises right from 1982 as a licensee of original tenant Matapher and therefore, the transfer of tenancy right in favour of respondent No.1 by B.M.C. is illegal and therefore, he should be declared as tenant and entitled for possession and Respondent No.1 be restrained from obstructing the possession.

(3.) HEARD Mr.Dubey learned Counsel for the appellant, Ms.Nichani for Respondent No.1 and Ms.Priti Shah for Respondent No.1 B.M.C.