KAKUBHAI AND CO Vs. NATHMAL KISANLAL

JUDGEMENT

(1.) This is defendant's appeal challenging the decree passed against him in Special Civil Suit No. 16 of 1966 of the file of the Civil Judge, Senior Division, Akola.

(2.) The litigation pertains to the shop premises situate at Akola. They are part of house No. 92 in ward No. 29. This house is of the ownership of the plaintiff since 2-2-1954 as on that date the plaintiff purchased it from the previous owner Messrs Sawatram & Sons Limited under the sale deed Ex. 117. Deceased Shiojibhai was occupying all three blocks or tenements in the said house as a tenant since before this purchase. There is no dispute that Shiojibhai left possession of one of the blocks sometime in 1956. Thereafter the two blocks continued in possession of Shiojibhai on the rent of Rs. 1761/- per year. Shiojibhai died on 9-3-1958 leaving behind him his daughters and two brothers by name Shamjibhai and Hanaraj. There is no dispute that these three brothers had already partitioned their estate on 15-11-1948 under the partition deed Ex. 128.

(3.) The plaintiff's case in brief is that by Diwali 1958, i.e. by about 11-11-1958 both the blocks were given in possession of the plaintiff and thereafter one of the blocks, namely, the suit premises were taken on lease by Shamjibhai on a montlhy rent of Rs. 100/-. Till next Diwali, (i.e. Oct.-November 1959) Shamjibhai alone was the tenant of that block. At this stage we would like to state that it is this block which is the subject-matter of this litigation. Thereafter from Oct-Nov. 1959 till Oct.-Nov. 1961 Shamjibhai and the present defendant Kaku-bhai were jointly possessing the suit premises as tenants on the rent of Rs. 100/- per month. The plaintiff further alleges that after Nov. 1961 (after Diwali 1961) the defendant alone continued as a tenant, and since then he has been paying rent. The plaintiff, however, contends that the lease of the suit premises initially to Shamjibhai in 1958 and thereafter to Kaku-bhai in 1961 was bad and inoperative, inasmuch as it was in contravention of the provisions of the C. P. and Berar Letting of Houses and Bent Control Order, 1949 (hereinafter referred to as the Rent Control Order). Clause 22 of that Order prescribes that every landlord shall within seven days from the date on which a house becomes vacant or available for occupation give intimation about this fact to the Collector in the prescribed form and that he shall not let it or occupy it except in accordance with Clause 23. Clause 23 states that on receipt of such intimation but within fifteen days thereof the Collector may order the landlord to let out the house to a person mentioned in the order. If no such order is passed, the landlord is entitled to let out the house to any person. The main allegation in the plaint is that the plaintiff has not given any intimation about the suit premises having fallen vacant' in Nov. 1958 when they were let out to Shamji. Similarly no intimation was given when the premises were let out to the defendant in October-November 1961. With this allegation it is contended that the transaction of lease is void as it is forbidden by law, and that, therefore, the defendant has been in possession either as a licensee or as a trespasser. The plaintiff had in 1965 filed two proceedings against the defendant--one was Small Cause Suit No. 8 of 1965 claiming a decree for arrears of rent of Rs. 200/- and the other proceeding was under clause 13 of the Rent Control Order. That clause provides that a landlord can terminate the tenancy of a tenant only after obtaining previous permission of the Rent Controller. The grounds on which such permission can be granted are enumerated in clause 13 (3). Both these proceedings were, however, withdrawn by the plaintiff. For example, Ex. 115 is a copy of the order-sheet in Small Causes Case No. 8 of 1985 showing that the suit was dismissed for default. Similarly the order-sheet Ex. 114 shows that the Rent Control Case No. 211/71/64-65 was disposed of for want of prosecution. The plaintiff has alleged in the plaint that these proceedings were filed on a mistaken belief that the defendant was a lawful tenant. It is further contended that the proceedings were withdrawn as soon as the plaintiff came to know that the lease in favour of the defendant was void. The plaintiff, therefore, filed a suit under appeal claiming possession and mesne profits. Rs. 1436.66 were claimed as mesne profits from Oct.-Nov. 1964 till 4-1-1966 at the rate of Rs. 100/- per month. Another item of mesne profits consists of Rs 2,160/- so as to cover the period from 4-1-1966 to 8-8-1966 at the rate of Rs 10/- per day.