Bombay High Court
Tajuddin Mohammad Shamshoddin ... vs Kamruddin Fasioddin Fakuri & ... on 1 August, 2017
Bench: Sangitrao S. Patil
1 51-SA-405-98
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
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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.
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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
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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
