S K RAO Vs. D G GHAISAS

JUDGEMENT

(1.) PRESENT appeal challenges the order dated 22.8.1981 passed by the Bench of Small Causes Court at Bombay in Appeal No.100 of 1980, whereby, respondents' appeal was allowed and direction was given to issue possession warrant by removing present appellants/obstructionists and to hand over vacant possession of the suit flat to the present respondents.

(2.) RESPONDENTS are plaintiffs and owners of building known as Gokul building, flat No. 29, K.A.Subramaniam Road, Matunga, Bombay - 400 019. Suit premises is block No.4 situated at first floor of the said building. One Mr.Sundaram was tenant of the said block on monthly rent of Rs.45.33. By notice dated 14.4.1976 respondents terminated tenancy and called for possession on the ground of reasonable and bonafide requirement. Tenant replied to the said notice by reply dated 21.4.1976. Thereafter respondents filed suit for possession in Small Causes Court at Bombay. The said suit was resisted by tenant. Ultimately by judgment and decree dated 27.4.1977 Small Causes Court, Bombay decreed the suit and granted respondents possession of the suit flat. On 12.9.1977 respondents tried to execute decree. At that time there was obstruction. Hence, on 21.9.1977 respondents applied for removal of obstruction the ground that decree passed will bind the obstructionists/appellants. On 9.12.1977, appellant No.1 alone filed his reply disputing right of respondents to execute decree against the appellants. He claimed ignorance of the earlier litigation. As per the appellants, on 25.5.1976 or there about appellant No.1 and his employee Shri D.D.Deodhar were put in possession of the suit flat, which was lying vacant. As per the appellants' case, in January or February 1976 the tenant retired. At that time, appellant No.1 negotiated with respondents for the purchase of the building. Appellants claim that respondent told them that besides the purchase appellant No.1 will have to pay the tenant for vacant possession. In the month of May 1976, appellant No. 1 was informed that one Sundaram, who has retired from service was leaving Bombay permanently. As per the appellants, meeting was called with the said tenant and appellant No.1 agreed that he will pay Rs.30/- per month and would occupy the block and that he will pay the price of the building independently. Appellants further stated that rent bills could not transferred in the name of appellant No.1 because of the provisions of Bombay Land Requisition Act and as there was no permission from the Controller of Accommodation. Appellants further stated that they were informed that tenant has asked to pay his Rs.20,000/- to surrender his tenancy and that appellant No.1 has paid the said amount. Appellant further averred that they agreed to purchase the building and pay Rs.10,000/- in addition and above the sale price. Thus, appellants tried to set up independent status to occupy the suit flat.

(3.) AGAINST this decree, present appeal is filed. The case is tried to be made out by appellants herein cannot be accepted as there is absolutely no evidence on record to support the said plea. Appellants have tried to contend that there was negotiations to purchase entire property, that the tenant surrendered tenancy rights and in May 1976 appellants were put in possession, however, in the present case, suit was filed after May 1976. The said suit was contested by original tenant and ultimately decree was passed on 27.4.1977. The tenant was given time to vacate the suit flat. There is no evidence to show that appellants were inducted in the suit premises in month of May 1976 Appellants' case that they agreed to purchase the building and there was agreement to pay Rs.30/- per month to respondent landlords, however, the rent bills could not be transferred cannot be accepted for want of evidence. From the facts narrated above it is clear that appellants have failed to prove their independent status/right to occupy suit block. During earlier litigation the tenant has alleged that appellant No.2 is occupying suit flat as care-taker and that the power of attorney was given to appellant No.1 to defend the suit. If this is so, case of appellants that original tenant surrendered his tenancy rights cannot be accepted. Appellant No.1 is Lawyer and Income-tax Practitioner. Appellant No.2 is Income-tax Officer. Their case of independent occupation of the suit flat cannot be accepted as there is no evidence brought on record to show that appellant No.1 has paid any amount of consideration for purported sale of building in favour of appellants. As the appellants have failed to establish that they have agreed to purchase building and they are put in possession after the original tenant has surrendered tenancy rights they are not entitled to resist the decree passed. Thus, appeal Court has rightly found that present appellants have been inducted by the judgment debtor/tenant and the obstruction caused by present appellants cannot be considered to be in their own rights and that they are bound by the decree.