REVABEN AJAY DEDHIA Vs. HARSHAD JETHALAL SHAH

JUDGEMENT

(1.) This Revision Application is preferred against the decree for possession passed under Section 6 of the Specific Relief Act in favour of the plaintiff and against the defendants.

(2.) To state in brief, the dispute is pertaining the suit premises i.e. shop Nos. 4 and 6, which are part of Shobha Godown, Amir Ali Merchant Chawl, Mantri Wadi, S.V. Road, Malad (West), Mumbai. The plaintiff filed the suit under Section 6 of the Specific Relief Act contending that on 3rd April, 1996, he had taken the suit shops on rent from the landlord Amir Ali Merchant and he had kept in the shops various articles such as auto-spare parts, tyrs, oil drums etc. which were required for the purpose of his business of transporter. He had also applied for a telephone connection and opened the bank account etc. Sometime in the last week of May, 1996, he had been to Hyderabad and then to Kutchh in Gujarat. He came back to Mumbai in the second week of June, 1996 and was shocked to notice that the suit shops were broken open and the goods lying therein were stolen away. On enquiry, he came to know that defendants Nos. 1 and 2 had committed criminal trespass in the suit shops. He also contended that in order to circumvent their illegal acts of criminal trespass, house-breaking and theft, they had filed Special Civil Suit No. 2779 of 1996 against Vasantbhai Dedhia, the brother of defendant No. 2. The plaintiff took out a Chamber Summons to implead him as a party, but that Chamber Summons was rejected. The plaintiff also lodged a report with the police on 24.6.1996. According to the plaintiff, defendant No. 1, who is the wife of defendant No. 2, in collusion and connivance with one Mr. Anil Chheda, had filed the suit and obtained consent decree from the Small Cause Court and had thus committed fraud. It is contended that the defendants had taken illegal possession of the suit premises behind the back of the plaintiff without following due process of law and that too without any right or interest in the said property. The plaintiff filed the suit for possession of the suit property by removing the defendants from the same.

(3.) The defendants contested the suit by filing the written statement and denied that the plaintiff was ever in possession of the suit premises as a tenant or otherwise. According to them, defendant No. 2 had opened business of books and stationery in partnership with Hirji Mavji Gala in the name of "Ajanta Emporium" sometime in 1956 in the premises situated near Shankar Temple, S.V. Road, Malad (East). The said Hirji Gala retired from the partnership in or about the month of October, 1958 and thereafter defendant No. 2 was carrying on business of Ajanta Emporium as the sole proprietor till 1963. In 1963, to settle his younger brother Devchand Dedhia also in business, defendant No. 2 accepted and admitted Devchand Dedhia in the business of Ajanta Emporium. Later on, defendant No. 2, in order to settle his another brother Vasant Dedhia in business, started business of printers in the name and style of "Ajanta Printers" at Bliss Compound, Nevatia Road, Malad (West) sometime in 1966. One Kanubhai Chokshi was also a partner in the said business. In fact, entire finances were provided by defendant No. 2. In 1968, the suit shop No. 4 was acquired for the business of Ajanta Printers. Though defendant No. 2 wanted to take the suit premises in the name of M/s. Ajanta Printers, the landlord insisted to issue rent receipts in the individual name and therefore, with consent of defendant No. 2, the rent receipts were issued in the name of his younger brother, Vasant Dedhia. In 1970, his another brother Samir and his son Shilpan were also admitted in the partnership of M/s. Ajanta Printers. In 1974, the suit shop No. 6 was also acquired by the said partnership firm, but the rent receipts were issued in the name of Vasant Dedhia. The rent of both the shops was paid from the above firm. In 1974, Kanubhai Chokshi retired from the firm and defendant No. 1, who is wife of defendant No. 2 and Korshi Hirji Dedhia, father of defendant No. 2, were admitted to the partnership with effect from 28.1.1974. According to the defendants, because the business of Ajanta Printers was not sufficient, in or about the year 1972, Vasant Dedhia shifted to Jetpur, District Rajkot, Gujarat and started his business in the name of "Ajanta Arts". Vasant Dedhia continued to receive his 20% share in the profits and loss of the said Ajanta Printers till 1977, though he was not attending the business of the firm since 1970. In 1976, a new firm in the name of "Ajanta Dyeing and Printing Works" was constituted and business was commenced at Jetpur. In view of this, the firm of M/s. Ajanta Printers was dissolved and the business was discontinued. By letter dated 10.4.1977, Vasant Dedhia confirmed that all the accounts of the said firm were settled and the defendant No. 1 alone had exclusive right of tenancy over the suit shop Nos. 4 and 6. He also consented for transfer of rent receipts in the name of defendant No. 2, but the landlord did not make any change. Anyhow, since April 1977, Vasant Dedhia had no right or interest in the suit premises and defendant No. 1 alone was in occupation of the same. After 1977, the suit shop was used for the purpose of keeping goods and material of M/s. Ajanta Emporium, which was started by defendant No. 2 in 1963. The rent of the suit premises was paid from 1977 to 1993 from the accounts of the firm of M/s. Ajanta Emporium. The rent was paid to Sultanali Merchant,the then landlord till December 1991 and thereafter to Amir Ali Merchant from January 1992 till December 1993. The rent was being collected by rent collector on behalf of Amir Ali Merchant.