Sitaram Narayan Shinde And Ors. vs Ibrahim Ismail Rais And Ors.
2004 Latest Caselaw 638 Bom

JUDGMENT

D.G. Karnik, J.

1. By this petition, the petitioner challenges the judgment and decree passed by the District Judge, Raigad on 4th December 1990 in Civil Appeal No. 74 of 1986 confirming the decree for possession passed by the learned Civil Judge, Jr. Division, Pen.

2. The petitioners are the heirs of Narayan Shinde who was the original tenant. The respondent No. 1 is the owner and landlord. An open plot of land admeasuring about 30' x 30' out of City Survey No. 1514/1, Pen (hereinafter referred to as the suit property) was taken on rent by Narayan Shinde, father of the petitioner No. 1. The respondent No. 1 purchased the suit property on 17th December 1963 and filed a suit bearing Regular Civil Suit No. 10 of 1969 for possession. The said suit was dismissed on the ground that the tenancy of the petitioners was not properly terminated. The Civil Appeal No. 17 of 1972 filed by the respondent Nos. 1 and 2 was also dismissed. Thereafter, the respondent Nos. 1 and 2 by a notice dated 13th November 1973 terminated the tenancy by the end of December 1974, and after some years filed a suit bearing regular Civil Suit No. 25 of 1980 against the respondents. The suit was decreed and the appeal filed by the petitioners was dismissed. That judgment of the appellate Court is challenged in this Writ Petition.

3. The trial Court as well as appellate Court have decreed the suit of the respondent Nos. 1 and 2 on three grounds i) the petitioners were in arrears of rent from January 1966 to December 1973 ii) the petitioners had sub-let the super structure erected by them on the suit property and iii) the respondent Nos. 1 and 2 require the suit reasonably and bonafide.

4. The learned counsel for the petitioners submits the findings on all the issues are erroneous and perverse because they are rendered without there being proper pleadings and without proper appreciation of evidence and contrary to the provisions of law.

5. The trial Court framed several issued including issue No. (iv) which reads as under:

Issue No. (iv): Whether the suit notice is legal and valid?

On this issue, the trial Court did not record a finding but stated the issue was kept open. After the decision of the Apex Court in Dhanpal Chettiyar v. Yashodabai Amrut reported in 1976 Bom.C.R. 1745, it cannot be disputed that it is not necessary to issue a notice of termination of tenancy before filing of a suit for possession under the provisions of the Bombay Rent Act. However, where the suit is to be filed on the ground of default, a notice of demand - and not a notice of termination of tenancy - is necessary. Sub-section (2) of Section 12 of the Bombay Rent Act reads as follows:-

(2) No suit for recovery of possession shall be instituted by a landlord against tenant on the ground of non-payment of the standard rent or permitted increases due, until the expiration of one month next after notice in writing of the demand of the standard rent or permitted increases has been served upon the tenant in manner provided in Section 106 of the Transfer of Property Act, 1882.

6. Sub-section (2) expressly contemplates that before filing of a suit for possession on the ground of default in payment of a rent, a notice in writing demanded the standard rent must be issued and suit for possession can be filed only on expiration of one month after the notice in writing. It was thus necessary for the trial Court to record a finding as to whether a proper notice of demand was issued by the landlord before filing of the suit for possession. According to the respondent Nos. 1 and 3, they had issued a notice dated 13th November 1973 prior to the filing of the suit. In paragraph No. 5 of the notice, it is stated that the tenants were in arrears of rent for 8 years from the year 1966 till December 1973. However, neither in paragraph No. 5 nor anywhere else in the notice a demand was made on the tenants to pay the rent. Paragraph No. 5 was only a statement of fact that the tenants were in arrears. It did not contain a demand. The notice was not a notice of demand at all but purported to be a notice of termination of tenancy as the previous suit was dismissed on the ground that tenancy was not properly terminated and the law that the notice of termination of tenancy was not necessary was not then settled by the decision in the case of Dhanpal Chettiyar (Supra) In the absence of a demand in writing being made prior to the institution of the suit, a decree for possession could not be passed on the ground of default in payment of the rent. In Dhanpal Chettiyar's case, the Supreme Court has only laid down that notice of termination of tenancy is not necessary in cases covered by Rent Restriction Acts. However, where a Rent Restriction Act provides for a notice of demand before filing of a suit, it is necessary to issue such a notice before filing the suit on the ground of default. The trial Court as well as appellate Court have not considered this aspect at all.

7. The trial Court as well as first appellate Court have held that the respondent Nos. 1 and 3 required the suit premises reasonably and bonafide for erection of a new building for their residence. The pleading regarding bonafide requirement in the plaint consists of only two sentences which are quoted below:

"Besides as per the notice, the plaintiff has no sufficient accommodation for his residence. He therefore, is required to make additional construction and requires the suit premises bonafide."

There was no pleading at all where the respondent Nos. 1 and 2 - plaintiffs were presently residing, what was the accommodation in their presence, how many members were there in their family and how the present accommodation in their possession was insufficient. It is true that the modern trend of the decisions of the Courts show that the pleadings in suits between landlord and tenant for possession are to be construed liberally. It is also a settled position that it is not necessary for a landlord to prove absolute need; as long as there is an element of need, a decree for possession can be passed. However, there must be some pleading spelling out of the need to enable the tenant to resist the claim. In any event, there must be sufficient evidence about the need in consonance with the basic pleading of need mentioned in the plaint. Even in the evidence the respondent No. 1 did not state what was the extent of the premises in his possession and how that was insufficient. All that is stated in the evidence of the respondents is that there were 9 members in the family and the premises wherein respondent No. 1 was residing were insufficient. In the cross-examination, the respondent No. 1 admitted that he has another constructed house in the same City Survey number. That house was 15 hands x 20 hands. i.e. approximately 1000 sq.feet. Nothing was stated how that accommodation was not sufficient. On these facts, mere ipsi dixit of the respondent Nos. 1 & 2 that they required additional premises could not have been accepted by the Courts below. The Courts below have not considered the evidence of other premises available to the respondents and whether they were sufficient. Thus, admissible and relevant evidence was ignored.

8. Courts below have held that the petitioners had constructed the house on the suit open land and had let out such construction to respondent Nos. 3 to 7. This was held to be illegal subletting. In India, the concept of dual ownership is well recognised. The land may belong to one person and super structure standing thereon may belong to another. Where the land belongs to one person and the super structure belongs to another and the owner of a super structure lets out the super structure, in the absence of any other evidence, it cannot be held that the owner of super structure has sublet the land. I am fortified in this view by a decision of a Supreme Court in Mrs. Dossibai N.B. Jeejeebhoy v. Khemchand Gorumal and Ors. . No finding has been recorded by the Courts below that the suit property which is an open land was sublet out in addition to the letting out of the super structure by the petitioners. Hence, the finding of a sub letting of the open land cannot be sustained.

9. For these reasons, petition is allowed. The impugned judgments are set aside and the suit of the respondent Nos. 1 and 2 landlord is dismissed. In the facts and circumstances of the case, parties should bear and pay their costs throughout.

Rule made absolute in the aforesaid terms.