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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 405 OF 1992
1. Tajuddin s/o Mohd. Shamashoddin
Farooqui, Age : 35 years,
Occupation : Teacher, R/o :
Nazam Manjil, Guruwar Peth,
Tq. Ambajogai.
A-1. Tajuddin s/o Shamashoddin died LR's.
1-A Smt. Arshadi Begum Tajoddin
Age : 48 years, Occu : Household,
1-B Sarvatara Tajoddin
Age : 23 years, Occu : Household,
1-C Nusratara Tajoddin
Age : 21 years, Occu : Household,
1-D Najmuddin Tajoddin
Age : 21 years, Occu : Education,
2. Fasioddin s/o Shamshoddin Farooqui,
Age 32 years, Occu: Nil, R/o : as above,
3. Smt. Khurshindrihana s/o Mejetbahussain,
@ Pasha, age : 43 years, Occu:Household,
R/o Udgir, District Latur.
4. Jamshidrihana w/o Wahid Ahemedkhan,
Age : 28 years, Occu : Household,
R/o : Hyderabad (A.P.)
5. Kausarrihana d/o Ahmed Shamshoddin,
Age : 24 years, Occu : Household,
R/o : Ambajogai, District Beed.
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6. Aadil s/o Nasiroddin Farooqui,
Age : 21 years, Occu : Education,
R/o : Ambajogai, District Beed.
7. Noushi s/o Nasiroddin Farooqui,
Age : 20 years, Occu : Education,
R/o : Ambajogai, District Beed.
8. Yasmin s/o Nasiroddin Farooqui,
Age : 18 years, Occu : Education,
R/o : Ambajogai, District Beed
..Appellants
V E R S U S
1. Kamroddin s/o Fasioddin Farooqui,
Age : 38 years, Occu : Private
Teacher, and hotel, R/o : Ambajogai,
District Beed.
2. Mushtakoddin s/o Fasioddin Farooqui,
Age : 32 years, Occu : business,
as a contractor, r/o Bale Pir,
Taluka and District Beed.
3. Jakuddin s/o Fasioddin Farooqui,
Age : 45 years, Occu : Hotel business,
R/o : Ambajogai, District Beed.
4. Salimoddin s/o Fesioddin Farooqui,
Age : 36 years, Occu : Senior Clerk,
in General Administrative Department
of Z.P.High School,Beed,District Beed.
5. Rafikoddin s/o Fesioddin Farooqui,
Age 28 years, Occu : Private Service,
6. Irshadoddin s/o Fesioddin Farooqui,
Age : 25 years, Occu : Ajanta Hotel,
Mondha Road, Georai, District Beed.
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7. Mir Sajedali s/o Mir Osmanali
Age : 35 years, Occu : Hotel,
R/o : Ambajogai, District Beed.
8. Ramlu s/o Narsya,
Age : 40 years, Occu : Hairs Cutting
Saloon, r/o Shalimar Hotel,
Ambajogai, District Beed. ...Respondents
(original
defendants)
--
Mr.N.S.Shah, Advocate i/b. Mr.S.V.Natu, Advocate
for Appellants
Mrs.M.A.Kulkarni, Advocate for respondent nos.1 to
4 and 6 and 7
--
CORAM : SANGITRAO S. PATIL, J.
DATE : AUGUST 01, 2017 ORAL JUDGMENT :
Heard the learned Counsel for the parties.
2. The substantial question of law that is involved in this appeal is, whether the Civil Court has a jurisdiction to entertain and try the dispute, which is liable to be decided by the Rent Controller under the provisions of Hyderabad ::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:32:38 ::: 4 51-SA-405-98 Houses (Rent, Eviction and Lease) Control Act, 1954 ("the Act of 1954", for short).
3. The learned Counsel for the appellants submits that the suit premises were originally taken on lease by the deceased Salauddin from the Masjid Committee and he let them out to respondent no.1. The appellants initiated proceedings for eviction of respondent no.1 from over the suit premises before the Rent Controller under the provisions of the Act of 1954. However, the Rent Controller dismissed the eviction proceedings holding that respondent no.1 was not tenant in the suit premises inducted by the deceased Salauddin. Therefore, the appellants instituted present suit for recovery of possession of the suit premises. He submits that the Civil Court has jurisdiction to entertain the suit for recovery of possession, He submits that the learned Judge of the first appellate Court wrongly held that the suit was not maintainable before the Civil Court. ::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:32:38 :::
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4. As against this, the learned Counsel for the respondent nos.1 to 4 submits that the deceased Salauddin surrendered the suit premises to the Masjid Committee and thereafter, the Masjid Committee let them out to respondent no.2, who is the brother of respondent no.1. Respondent no.2 is occupying the suit premises for running his business therein. Since the suit premises are governed by the Act of 1954, the civil suit for eviction of respondent no.2 was not at all maintainable. She, therefore, submits that the learned Judge of the first appellate Court has rightly considered this aspect of the matter and has rightly held that the suit was not maintainable before the Civil Court.
5. Admit the appeal for deciding the above mentioned substantial question of law. On admission, the learned Counsel for the respondents waives service of notice on behalf of the respondent.
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6. By consent of the learned Counsel for the parties, the appeal is heard finally.
7. There is no dispute that the suit premises were taken on lease by the deceased Salauddin, who was the predecessor-in-title of the appellants. According to the appellants, the deceased Salauddin had sub-let the suit premises to respondent no.1, while it is the case of the respondents that the deceased Salauddin surrendered the suit premises to the Masjid Committee and thereafter, the Majid Committee inducted respondent no.2 as tenant therein. It is the case of the appellants that they approached the Rent Controller for eviction of respondent no.1 from the suit premises under the provisions of Act of 1954, however, the said proceedings were dismissed by the Rent Controller. Therefore, they filed the present suit.
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8. In my view, once it is held that the suit premises are governed by the provisions of the Act of 1954, for eviction of the person who is occupying the suit premises, it was incumbent on the part of the appellants to approach the Rent Controller only and not the Civil Court. Only because the Rent Controller did not accept the case of the appellants for eviction of respondent no.1, the Civil Court would not get the jurisdiction to entertain and try the suit, more particularly, when it is the specific case of the appellants that respondent no.2 and not respondent no.1, is occupying the suit premises as a tenant thereof. In order to decide the issue as to whether respondent no.1 is occupying the suit premises or respondent no.2, the Masjid Committee would have been the proper party to the suit. However, the appellants did not join the Masjid Committee as a party to the suit. In any case, the suit for eviction of the tenant occupying the suit ::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:32:38 ::: 8 51-SA-405-98 premises cannot be entertained by the Civil Court in view of the provisions of the Act of 1954.
9. The learned Judge of the first appellate Court has rightly considered this question of law and rightly dismissed the suit holding that the Civil Court has no jurisdiction. I do not find any illegality or infirmity in the finding of the learned Judge of the first appellate Court. The Second Appeal is not tenable on this sole ground. It is liable to be dismissed and accordingly dismissed. No costs.
[SANGITRAO S. PATIL, J.] kbp ::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:32:38 :::