BIJIBAI SALDHANA Vs. RAMA MANDHAR THANNU MISHRA

JUDGEMENT

(1.) THESE two companion matters -raise a common question of law for decision and can be conveniently dealt with together. The facts giving rise to them are briefly these:

(2.) THE property bearing Tika No. 16, C. S. Nos. 5 and 6 of Thana, formerly belonged to one Vasanji Padamsi. On a part of this property there was a shed known as the "big godown". By a lease deed dated 13th April 1959 Vasanji leased out the shed and the site under it to one D. B. Naik at a monthly rent of Rs. 225. Under the terms of the lease the lessee was entitled to make improvements, alterations or modifications at his own cost and was also entitled to sub-let the premises subject to the condition that when the lease was terminated the sub-lease would also be deemed to be terminated. Naik converted a part of the shed into four shops. Two of these were let out by him to Mahamood Adbul Rahman alias S. A. P. Mahamood, the petitioner in Special Civil Application No. 244 of 1967, at a monthly rent of Rs. 150 and one more was let out to Bijibai Saldhana, the petitioner in Special Civil Application No. 243 of 1967, at a monthly rent of Rs. 60. There was a dispute as to when these shops were let out to the two petitioners; the petitioners claiming that they had entered into Possession on 25th April 1959 and the respondent No. 1 (hereinafter referred to as ('the respondent') contending that they had come on the property in September 1959. Both the Courts below have, however, concurrently found that the premises were let to the petitioners in September 1959 and that finding is not challenged before me by Mr. Walavalkar, learned Counsel for the petitioners.

(3.) ON 28th September 1959 Naik assigned his rights to one P. Hamid Koya by an assignment-deed of that date and the petitioners attorned to the assignee. Thereafter, in 1961, Vasanji filed a suit for eviction and arrears of rent against Naik and Koya in the Civil Court at Thana. The claim for eviction was, however, subsequently given up and a decree for arrears of rent alone was passed in that suit. Pending the said suit the property was purchased from Vasanji by Ram Manohar Thannu Mishra, the respondent in both these petitions. It is not known whether the respondent had been brought on the record of that suit before the decree was passed but proceedings for the execution of that decree were started jointly by Vasanji and the respondent. A Receiver came to be appointed in those proceedings and although his appointment was for the purpose of collecting rent from the sub-tenants who were occupying the premises, he somehow obtained possession of the premises in the occupation of Mahamood on 22nd March 1962 by breaking open his locks during his absence. This led to an application by Mahamood (Misc. Application No. 53/ 62) to the Executing Court for restoration of possession. The matter was compromised and a compromise purshis signed by the respondent and by the constituted attorney of Mahamood as well as by the Receiver, was filed in Court on 2nd July 1962. Under the terms of the compromise Mahamood was to be restored to possession on 6th July 1962 on his paying Rs. 530. Mahamood was further to pay Rs. 175 per month as rent of the premises from 1st July 1962 onwards. Mahamood paid Rs. 530 as agreed and was put in possession of the premises on 6th July 1962.