Bombay High Court

Shri.Sikhwal Samaj And Ors vs Smt. Kalyanibai Parsharam Tiwari ... on 26 April, 2021

Bench: V.K. Jadhav

                                    1                        WP.2404-95.odt

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                        WRIT PETITION NO.2404 OF 1995

     1.      Shri Sikhwal Samaj, Jalgaon,
             Registered Public Trust,
             Jalgaon.

     2.      Badrilal Uderam Joshi (Deceased),

     3.      Nandlal Govindram Vyas,
             Aged 54 years,

     4.      Sitaram Purshottam Tiwari,
             Age 64 years,

     5.      Rameshchandra Shivdayal Oza,
             Age 51 years,

     6.      Tikkamchand Kanhaiyalal Tiwari,
             Age 58 years,

     7.      Shankarlal Badrilal Vyas (Deceased)
             All are businessman and
             R/o Shani Peth, Jalgaon,
             District Jalgaon.                   ... Petitioners

                      Versus

     1.      Smt. Kalyanibai Parsharam Tiwari,
             Age 56 years, Occu. Household,
             R/o Balaji Galli, Bhusawal,
             Jalgaon.

     2.      Umakant Parsharam Tiwari,
             Age 37 years, Occu. Business,
             R/o Balaji Lane, Bhusawal.

     3.      Shashikant Parsharam Tiwari,
             (Petition is dismissed against R.No.3).

     4.      Ramkishan Chunilal Nagla,
             (Since deceased through his LRs.)




::: Uploaded on - 27/04/2021                     ::: Downloaded on - 08/09/2021 22:41:19 :::
                                        2                     WP.2404-95.odt

     4A.     Gopal Ramkishan Nagla,
             Age 56 years, Occu. Service,
             R/o 114, Shani Peth, Jalgaon,
             District Jalgaon.

     4B.     Pradeep Ramkishan Nagla,
             Age 52 years, Occu. Service,
             R/o 114, Shani Peth, Jalgaon,
             District Jalgaon.

     4C.     Anand Ramkishan Nagla,
             Age 55 years, Occu. Business,
             R/o 114, Shani Peth, Jalgaon,
             District Jalgaon.

     4D.     Suraj Ramkishan Nagla,
             Age 50 years, Occu. Service,
             R/o 114, Shani Peth, Jalgaon,
             District Jalgaon.

     5.      Ramlal Dhanraj Purohit,
             Age 46 years, Occu. Business,

     6.      Jagdishchandra Hazarimal Vyas,
             (Petition is dismissed against R.No.6).

     7.      Onkar Purohit,
             (Petition is dismissed against R.No.7),

             Respondent Nos.3, 5, 6, 7 R/o 114,
             Shani Peth, Jalgaon.               ... Respondents

                                     ...
     Mr. P. R. Katneshwarkar, Advocate for Petitioners.
     Mr. V. D. Gunale, Advocate for Respondent Nos.4A and 4B.
     Mr. A. N. Sabnis, Advocate for Respondent Nos.4C abd 4D.
     Writ Petition is dismissed against Respondent Nos.3, 6 and 7.
                                     ...

                               CORAM : V. K. JADHAV, J.

RESERVED ON : 14.01.2021 PRONOUNCED ON : 26.04.2021

3 WP.2404-95.odt

JUDGMENT :-

1. The petitioners are the original plaintiffs. Petitioner

No.1 is a Public Trust registered under the Bombay Rents,

Hotel and Lodging Houses Rates Control Act, 1947 and Rules,

1948 (herein after referred to as 'Bombay Rent Act') for the

upliftment and betterment of Sikhwal Samaj. According to the

petitioners / plaintiffs, the petitioner / trust does social work

like education of children of Sikhwal Samaj and their

marriages. Petitioner Nos.2 to 7 are the registered trustees

with the charity authorities. At present, petitioner Nos.2 and 7

are dead and petitioner Nos.3, 4, 5 and 6 are the only trustees.

According to the petitioners / plaintiffs, one Ganpat Devram

Pardeshi was the original owner of the suit property municipal

house No.104. He had leased out that property to Parsharam

Chunnilal Tiwari on yearly rent of Rs.200/-. However, it was

not registered lease and as such the same was treated as a

lease from month to month. The said Ganpat Pardeshi had

sold the suit house to one Premraj Nandram Tiwari under the

registered sale deed dated 28.03.1966. The said Parsharam

Chunnilal had sublet the property to respondent No.4 late

4 WP.2404-95.odt

Ramkishan. Thus, the said Premraj Tiwari had given a notice

to Parsharam and Ramkishan for vacating the premises.

Parsharam died on 17.07.1973 and respondent Nos.1 to 3 are

his legal heirs.

2. It is further case of the petitioners / plaintiffs that on

24.08.1973, petitioner No.1 / trust had purchased the suit

house for a consideration of Rs.15,000/- from said Premraj

Tiwari and since then petitioner No.1 become the owner and

landlord of the suit property. Respondent No.4 late Ramkishan

himself is a sub tenant and also given the portion of the suit

property to defendant Nos.5, 6 and 7 as his sub tenants.

According to the petitioners / plaintiffs, respondent Nos.1 to 3

had agreed to vacate the premises but it was respondent No.4

late Ramkishan, who refused to vacate the premises.

Respondent No.4 late Ramkishan himself is a sub tenant had

also given the portion of the suit property to defendant Nos.5,

6 and 7 as his sub tenants. Respondent No.4 Late Ramkishan

is the contesting respondent. Respondents are in arrears of

rent of Rs.1195/- and they are also liable to pay permitted

increases @ Rs.431/- per year for three years. Thus, the

petitioners are entitled to claim Rs.2,419.89 from the

5 WP.2404-95.odt

respondents. However, the claim is restricted to certain

amount which is within limitation.

3. The petitioner / trust decided to construct a Mangal

Karyalay (Marriage Hall) for the benefit of the Samaj. The

petitioners have therefore instituted civil suit bearing Regular

Civil Suit No.136 of 1978 for possession of the suit house

against all the respondents on the ground of default of

payment of rent for more than six months, subletting by

respondent Nos.1 to 3 to respondent No.4 and by respondent

Nos.5 to 7 and also on the ground of requirements of plaintiff /

public trust under Section 13(1)(g) of the Bombay Rent Act for

the occupation for the purpose of the trust.

4. Respondent Nos.1 to 3 / original defendant Nos.1 to 3

have not contested the suit. They had agreed to hand over the

possession. Respondent Nos.5 and 6 / original defendant

Nos.5 and 6 have not filed their written statement.

Respondent No.7 / original defendant No.7 has filed the

written statement at Exh.7 stating therein that he is not a sub

tenant on any part of the suit premises and no portion of the

suit property is in his possession. He had not taken any

6 WP.2404-95.odt

portion of the suit house on rent as a sub tenant from

respondent No.4 late Ramkishan.

5. Respondent No.4 / original defendant No.4 late

Ramkishan is the only contesting defendant. He has filed

written statement at Exh.20. According to him, he is a lawful

tenant of the suit premises. His grandfather Chunnilal was the

original tenant since 2002. He was paying Rs.136/- for built

portion and Rs.65/- for open space around it and in all

Rs.201/- per year. He was residing and doing business of

Dalphad under the name and style as "Chunnilal Devakram

Nagla". According to him, Chunnilal had three sons i.e.

(i) Devakram (ii) Parsharam and (iii) Ramkishan (defendant

No.4). Devakram was already separated. Parsharam was the

father of respondent Nos.1 to 3 / original defendant Nos.1 to

3. Chunnilal died on 27.06.1958. At the time of his death,

defendant No.4 was residing with him along with Parsharam.

According to defendant No.4 late Ramkishan, as Parsharam

was elder brother, the rent receipts were taken in his name,

thereafter Parsharam left Jalgaon and went to reside at

Bhusawal. He was therefore not interested in the suit premises.

Respondent No.4 is the lawful tenant of the suit premises.

7 WP.2404-95.odt

Defendant No.4 paying rent to the landlord and the same was

being accepted. However, Premraj (purchaser of the suit

property in the year 1966) had refused the money orders sent

on 19.07.1973 and sold the suit property to the petitioner /

public trust. According to defendant No.4 late Ramkishan, the

petitioners / landlords are trying to take advantage of the fact

that the rent receipts were in the name of Parsharam and

accordingly denied the status of respondent No.4 as a tenant.

The petitioners had also join hands with heirs of Parsharam.

Therefore, defendant No.4 late Ramkishan had filed Regular

Civil Suit No.13 of 1976. In the said suit, respondent No.4 was

declared as a tenant of the suit premises. It is further

contended by respondent / defendant No.4 that there was no

notice of demand issued to him. It was given to said

Parsharam, who has no interest in the suit premises. He has

deposited all the rent in the court. Respondent No.4 has also

contended that the petitioner / trust do not require the

premises for the public purpose or the Mangal Karyalay.

6. By judgment and order dated 02.06.1983, the learned

Joint Civil Judge Junior Division, Jalgaon has decreed the

Regular Civil suit No.136 of 1978 and directed defendant No.4

8 WP.2404-95.odt

to deliver the possession of the suit premises to the

petitioners / plaintiffs. Defendant No.4 was also directed to

pay Rs.1824.89 to the plaintiffs with notice charges of Rs.30/-

and the cost of the suit. He was also directed to pay the

pending and future mesne profit at the same rate from the date

of filing of this suit till the possession is delivered.

7. Being aggrieved by the same, respondent / defendant

No.4 late Ramkishan has preferred the Civil Appeal No.36 of

1984 before the District Court, Jalgaon. The learned 4 th

Additional District Judge, Jalgaon by judgment and order

dated 27.06.1994 allowed the Civil Appeal No.36 of 1984,

quashed and set aside the judgment and decree passed in

Regular Civil Suit No.136 of 1978 and dismissed the suit as

against respondent / defendant No.4. Hence, this writ

petition.

8. The learned counsel for the petitioners submits that the

notice of demand as required under Section 12(2) of the

Bombay Rent Act was given to respondent / original defendant

Nos.1 to 3, who are the legal representatives of deceased

Parsharam in whose name the rent receipt was given. As

9 WP.2404-95.odt

respondent / defendant No.4 claims to be the tenant along

with deceased Parsharam and respondent Nos.1 to 3, no

separate notice of the demand of rent is necessary. The learned

counsel submits that notice to any one of the joint tenants is a

valid notice. The learned counsel for the petitioners submits

that it is also the pleadings and the evidence led by respondent

/ original defendant No.4 to that effect that deceased

Parsharam resided in the suit premises along with him and

after he went to reside at Bhusawal, respondent / original

defendant No.4 started residing in the suit premises along with

his mother. Admittedly, the rent receipts were issued in the

name of deceased Parsharam. Respondent No.4 late Ramkishan

had tried to explain that the rent receipts were obtained in the

name of deceased Parsharam as he was the elder brother,

however, the fact remained that the deceased Parsharam

resided in the suit house along with respondent / defendant

No.4 late Ramkishan. The learned counsel submits that

whether the tenancy is a joint or separate, no inflexible rule or

straitjacket formula can be laid down and the case has to be

decided on the facts and circumstances thereof. The learned

counsel submits that there is a sufficient evidence to indicate

10 WP.2404-95.odt

that the tenancy was joint and in view of the same, demand

notice to any one of the joint tenant is sufficient compliance of

the provisions of Section 12(2) of the Bombay Rent Act. The

learned counsel submits that none of the respondents had paid

the rent within one month of the receipt of the notice and

hence they are the willful defaulters under Section 12(3)(a)

and (b) of the Bombay Rent Act. The learned counsel submits

that even the respondents did not deposit the amount regularly

in the Court during the pendency of the suit and therefore,

they are also liable to be evicted under Section 12(3)(b) of the

Bombay Rent Act.

9. The learned counsel for the petitioners submits that in

terms of the provisions of 13(1)(g) of the Bombay Rent Act,

the petitioner / landlord being a public trust is entitled for the

possession of the premises for its own requirements. Thus, the

petitioners / plaintiffs are required to plead and prove only the

premises required for the occupation for the purpose of trust

and nothing more. Even respondent No.4 late Ramkishan has

also admitted in his cross-examination that the petitioners /

plaintiffs being a public trust is in need of the premises to fulfill

the object of the trust. The learned counsel submits that thus

11 WP.2404-95.odt

the judgment and decree passed by 4 th Additional District

Judge, Jalgaon in Civil Appeal No.36 of 1984 dated

27.06.1994 is liable to be quashed and set aside and decree for

possession passed by the Joint Civil Judge Junior Division,

Jalgaon in Regular Civil Suit No.136 of 1978 dated 21.06.1983

required to be restored.

10. The learned counsel for the petitioners in order to

substantiate his contention placed his reliance on the following

cases :

(a) Ashok Chintaman Juker and others Vs. Kishore Pandurang Mantri and another reported in (2001) 5 Supreme Court Cases 1.

(b) Bandu Ravji Nikam Vs. Shri. Acharyaratna Deshbushan reported in 2003 (1) ALL MR 198.

(c) Babulal Fakirchand Agrawal Vs. Suresh Kedarnath Malpani & others, Civil Revision Application No.76 of 2010.

11. The learned counsel for the respondent / defendant No.4

late Ramkishan (now respondent No.4A to 4D legal heirs of

deceased Ramkishan) submits that all the trustrees are not

before this Court and only some of the trustees have filed writ

petition as well as proceedings in the lower Court, therefore,

12 WP.2404-95.odt

on this ground, the suit itself is not tenable. The learned

counsel submits that most of the trustees of the said trust are

expired. There are no elections to the Managing Committee

Members of the said trust. There are no activities of the said

trust nor the said trust is functioning.

12. The learned counsel for the respondent / defendant No.4

late Ramkishan submits that the petitioner / trust has not

issued any notice to deceased Parsharam prior to his death on

17.06.1973. The petitioner / trust has also not issued any

notice to respondent / defendant No.4 till the filing of the suit.

The learned counsel submits that respondent No.4 late

Ramkishan is declared as a statutory tenant of the suit property

in view of the judgment and decree passed in Regular Civil Suit

No.13 of 1976 and the said judgment and decree was also

confirmed in the appeal. Respondent / defendant No.4 late

Ramishan never sublet the suit property to respondent Nos.5, 6

and 7 / defendant Nos.5 to 7 as alleged.

13. The learned counsel for respondent No.4 submits that

the Trial Court has rightly held that respondent No.4 is lawful

tenant of the suit premises. However, Trial Court has wrongly

13 WP.2404-95.odt

held that defendant No.4 late Ramkishan is a defaulter of

payment of rent for more than six months. The learned

counsel submits that respondent No.4 late Ramkishan is not

defaulter in payment of rent in terms of the provisions of

Section 12(2) of the Bombay Rent Act and the learned Judge

of the Lower Appellate Court has recorded the findings in the

affirmative to that effect. The learned counsel submits that the

petitioner / trust has also failed to prove the requirement of

the possession of the suit premises for its personal bonafide

views. The greater hardship will be caused to respondent /

defendant No.4 late Ramkishan more than the petitioner /

trust if the suit is decreed.

14. The learned counsel submits that respondent /

defendant No.4 late Ramkishan had instituted the Regular Civil

Suit No.13 of 1976 which was decreed on 22.09.1980 and he

was declared as a statutory tenant. Being aggrieved by the

same, the petitioner / trust has preferred the Civil Appeal

No.27 of 1980 which was dismissed on 20.06.1983. The said

judgment and decree passed in Regular Civil Suit No.13 of

1976 has attained the finality. The petitioners are therefore

cannot claim that respondent No.4 late Ramkishan is not

14 WP.2404-95.odt

tenant of the suit premises. The learned counsel submits that

the father of respondent / defendant No.4 late Ramkishan was

yearly tenant and thereafter respondent / defendant No.4 late

Ramkishan became the yearly tenant. The learned counsel

submits that in terms of the provisions of Section 12(2) of the

Bombay Rent Act, 1947 the demand notice is necessary in the

manner as provided in Section 106 of the Transfer of Property

Act, 1882 and after receipt of the said notice, if the tenant did

not pay the rent within 30 days a decree of the possession can

be claimed in terms of the said provisions.

15. The learned counsel for respondent / original defendant

No.4 (now respondent No.4A to 4D legal heirs of deceased

Ramkishan) submits that so far as the bonafide requirement is

concerned, there is vague pleading in the plaint and it is

merely stated that the trust is required the premises for

building a Mangal Karyalaya and other social institutions and

except the bare words on behalf of the petitioners / plaintifs,

there is no further evidence led on this point. There is no

resolution of Samaj / Trust for construction of the marriage

hall on the suit premises. Furthermore, there is no provision

for raising the funds of the required construction of marriage

15 WP.2404-95.odt

hall. The petitioners / plaintiffs have not prepared any plan

for the construction nor approval and / or sanction for

construction from the charity authorities produced on record.

The learned counsel submits that even in terms of provisions of

Section 13(1)(g), it is incumbent upon the petitioners /

plaintiffs to prove that the premises are required for

occupation for the purpose of the trust. The learned counsel

submits that there is no substance in this writ petition. The

Lower Appellate court has rightly appreciated the evidence in

its proper context. There is no reason to interfere the well

reasoned judgment and order passed by the Lower Appellate

Court.

16. The learned counsel for respondent No.4 in order to

substantiate his contention placed his reliance on the following

cases :

(a) Sitaram Narayan Shinde and others Vs. Ibrahim Ismail Rais and others reported in 2005 (1) Mh.L.J., 35.

(b) Mani Nariman Daruwala @ Bharucha (Deceased) through LRs. and others Vs. Phiroz N. Bhatena and others reported in (1991) 3 Supreme Court Cases 141.

16 WP.2404-95.odt

17. I have carefully considered the submissions advanced by

the learned counsel for the respective parties. With their able

assistance, I have perused the pleadings, the grounds taken in

the petition, annexures thereto and the reply filed by the

respondent.

18. The petitioners / plaintiffs have instituted the suit

bearing Regular Civil Suit No.136 of 1978 seeking eviction of

the defendants / tenants from the suit property as detailed in

paragraph No.1 of the plaint on two grounds (i) Default in

paying the rent and (ii) The premises are required for

occupation for the purpose of the trust.

19. It is necessary to repeat the history in brief :

One Ganpat Devram Pardeshi was the original owner of

the suit house property. In the year 1966, the said Ganpat

Pardeshi had sold the suit house property to Premraj Tiwari

under the registered sale deed dated 28.03.1966. On

24.08.1973, the petitioner / trust had purchased the suit house

property for consideration of Rs.15,000/- from Premraj Tiwari

and since then undisputedly the petitioner / trust become the

owner / landlord of the suit property.

17 WP.2404-95.odt

20. According to the petitioners / plaintiffs, the said Ganpat

Pardeshi / original owner had given the suit property to

Parsharam Tiwari on yearly rent of Rs.200/- for the purpose of

his trade business. However, it was not registered lease and as

such the same was treated as a lease from month to month.

The said Parsharam Tiwari died on 17.07.1973 and

respondents / original defendant Nos.1 to 3 are his legal heirs.

Though respondents / original defendant Nos.1 to 3 had

agreed to vacate the premises, respondent / defendant No.4

late Ramkishan on 01.11.1973 had given a notice under

Section 5(11)(c) to the petitioners / plaintiffs stating therein

that he is a statutory tenant. In anticipation of the eviction suit

from the petitioners / plaintifs, respondent / original

defendant No.4 late Ramkishan had filed an application

bearing Misc. Application No.208 of 1973 in Jalgaon Court for

declaration and since the said application found to be not

maintainable, respondent / original defendant No.4 late

Ramkishan has converted the said application into Regular

Civil Suit No.13 of 1976 for declaration of his status as a

tenant in terms of the provisions of Section 5(11)(c) of the

Bombay Rent Act, so also for a decree of perpetual injunction.

18 WP.2404-95.odt

However, the petitioners / plaintiffs on 26.12.1973 had issued

a demand notice for claiming the rent from 28.03.1972 to

respondents / original defendant Nos.1 to 3 and also stated

therein about termination of the tenancy, however, respondents

/ original defendant Nos.1 to 3 have shown their ready and

willingness to vacate the premises. According to the

petitioners / plaintiffs, respondent / defendant No.4 late

Ramkishan has no concern with the suit property. The said

deceased Parsharam was a statutory tenant and respondent /

defendant No.4 never resided with him nor he was the member

of his family. Accordingly, the petitioners / plaintiffs have

instituted the suit for possession of the suit property along with

decree of the arrears of rent.

21. Respondent / original defendant No.4 late Ramkishan

has only contested the suit. According to him, the father of

original owner deceased Ganpat Devram Pardeshi namely

Devram Pardeshi had given the suit property on yearly rent

consisting the building and the open space to the father of

respondent / defendant No.4 namely Chunnilal. In the said

premises, the father of respondent / defendant No.4 late

Ramkishan had started the business under the name and style

19 WP.2404-95.odt

as "Chunnilal Devkaran Nagla". The father of respondent /

defendant No.4 namely Chunnilal died on 27.06.1957. At that

time, respondent / defendant No.4 late Ramkishan along with

his mother was residing with him in the said suit premises.

Respondent / defendant No.4 has explained the genealogy.

Admittedly, Chunnilal has wife namely Nanibai (wife) and

three sons namely Devkaran, Parsharam, Ramkishan

(defendant No.4). Deceased Parsharam survived with a wife

and two sons, those are respondents / defendant Nos.1 to 3 in

the suit. Repondent / defendant No.4 has further explained

that after the death of their father, deceased Parasharam had

come to Jalgaon and started residing with them. He was an

elder brother and therefore, they have started taking the

receipts of the rent from the owner in his name. After some

time, deceased Parsharam went to Bhusawal and started

residing with Premraj. Deceased Parsharam thus had not

resided in the suit premises for more than 18 years and

respondent / defendant No.4 was only residing in the suit

premises as a tenant. As such, respondent / defendant No.4 is

the statutory tenant and his status as a statutory tenant is now

20 WP.2404-95.odt

confirmed in terms of the judgment and decree passed in

Regular Civil Suit No.13 of 1976.

22. The petitioners / plaintiffs and respondent / defendant

No.4 led the oral and documentary evidence. Though the Trial

Court has decreed the suit of the petitioners / plaintiffs in

terms of its prayers, however, the Appellate Court has allowed

the appeal and dismissed the suit on two grounds (i) there is

no demand notice of arrears of rent in terms of the provisions

of Section 12(2) of the Bombay Rent Act and (ii) the petitioner

/ trust could not establish its bonafide requirements of the suit

property in order to pass the decree under the provisions of

Section 13(1)(g) of the Bombay Rent Act.

23. The learned 4th Additional District Judge, Jalgaon seems

to have been impressed by the judgment and decree passed in

the suit bearing Regular Civil Suit No.13 of 1976 instituted by

respondent / defendent No.4 late Ramkishan.

24. I have carefully gone through the judgment and decree

passed in the said Regular Civil Suit No.13 of 1976 marked at

Exh.62. There is a specific pleadings raised by respondent /

defendant No.4 in the said suit in terms of provisions of

21 WP.2404-95.odt

Section 5(11)(c) of the Bombay Rent Act. There is no

reference in the said suit that after the death of their father

Chunnilal, only respondent / defendant No.4 late Ramkishan

along with his mother started residing in the suit premises

exclusively. In the instant suit, though respondent / defendant

No.4 has raised a specific plea that out of three brothers of

Chunnilal, brother Devkaran was residing separately in the life

time of Chunnilal, however, deceased Parsharam was residing

at Hyderabad. According to respondent / defendant No.4 late

Ramkishan (third son of Chunnilal), after the death of father

Chunnilal, deceased Parsharam also started residing at Jalgaon

in the suit premises. It appears from the pleadings and the oral

evidence led by respondent / defendant No.4 that the rent

receipts came to be issued in the name of deceased Parsharam

(elder brother of respondent / defendant No.4 late

Ramkishan).

25. Though there are different pleadings from both the sides

as to who was the actual tenant, however, it appears that even

assuming that the father of deceased Parsharam and

respondent / defendant No.4 late Ramkishan namely Chunnilal

was the original tenant and after his death, if the said deceased

22 WP.2404-95.odt

parsharam and respondent / defendant No.4 late Ramkishan

along with widow of Chunnilal started residing in the suit

premises, in terms of the provisions of Section 5(11)(c) of the

Bombay Rent Act, they are the members of the tenant's family

residing with him at the time of his death or undisputedly they

are the heirs of deceased tenant.

26. Respondent / defendant No.4 late Ramkishan has

deposed that in the year 1966, the original owner Ganpat has

sold the suit property to Premraj Tiwari, who is his uncle and

he was paying rent to him, however, taking the receipts in the

name of Parsharam. Exh.58 is the legal notice issued to

deceased Parsharam Tiwari by Premraj Tiwari along with

original owner Ganpat Pardeshi. On perusal of the same, it

appears that the purchaser Premraj Tiwari along with the

original owner Ganpat Pardeshi had given notice to deceased

Parsharam that the suit property came to be purchased by

Premraj Tiwari and hence forth deceased Parsharam has to pay

the monthly rent to said Premraj Tiwari. The said notice has

been issued on 28.03.1966. In the said notice, neither there is

a reference of original tenant Chunnilal as contended by

respondent / defendant No.4 late Ramkishan nor any reference

23 WP.2404-95.odt

to respondent / defendant No.4 late Ramkishan. The said

notice Exh.58 is placed on record by the petitioners / plaintiffs.

In view of the above, at the most in terms of the provisions of

Section 5(11)(c) of the Bombay Rent Act, respondents /

defendant Nos.1 to 3, who are the legal heirs of deceased

Parsharam can be said to be the tenants.

27. Respondent / defendant No.4 late Ramkishan has

deposed that his father Chunnilal died in the year 1957 and

after the death of his father, Parsharam had come to Jalgaon

and after the funeral, deceased Parsharam went to Bhusawal.

The said Premraj Tiwari, who happened to be uncle had

purchased the property in the year 1966 from the original

owner Ganpat Deoram Pardeshi. In view of the same, there

was no reason for respondent / defendant No.4 to get the rent

receipts in the name of deceased Parsharam. Even in the

notice at Exh.58 as referred above, there is no reference of

name of respondent / defendant No.4 late Ramkishan.

28. Thus, considering the oral and documentary evidence as

discussed above and even after giving due weightage to the

judgment and decree passed in Regular Civil Suit No.13 of

24 WP.2404-95.odt

1976, at the most, the inference can be drawn about the joint

tenancy. In my considered opinion, the learned 4 th Additional

District Judge, Jalgaon has ignored this material aspect while

deciding the appeal.

29. In a case, Ashok Chintaman Juker and others Vs. Kishore

Pandurang Mantri and another reported in (2001) 5 Supreme

Court Cases 1 relied upon by the learned counsel for the

petitioners, the Supreme Court has held that in case of a joint

tenancy, notice to any one of the tenants is valid and the suit

impleading one of the defendant is maintainable. The decree

passed in such a suit is binding on all the tenants. In

paragraph No.10 and 11, the Supreme Court has made the

following observations :

"10. In sub-section (11) of Section 5 of the Act the expression "tenant" means any person by whom or on whose account rent is payable for any premises and includes: ( a) such sub-tenants and other persons as have derived title under a tenant before the coming into operation of this Act;

(b) any person remaining, after the determination of the lease, in possession, with or without the assent of the landlord, of the premises leased to such person or his predecessor who has derived title before the coming into operation of this Act; (c) any member of the tenant's family residing with him at the time of his death as may be decided in default of agreement by the court. The language of the provision indicates that the definition of the term is an inclusive one and wide in its amplitude. In the present case

25 WP.2404-95.odt

we are concerned with clause (c) of sub-section (11) of Section 5 which provides that "tenant" includes any member of the tenant's family residing with him at the time of his death as may be decided in default of agreement by the court. There are two requisites which must be fulfilled before a person is entitled to be called a "tenant" under clause ( c); firstly, he must be a member of the tenant's family and secondly, he must have been residing with the tenant at the time of his death. Besides fulfilling these conditions he must have been agreed upon to be a tenant by the members of the tenant's family; in default of such agreement the decision of the court shall be binding on such members. The further question that arises for consideration is whether a member of the family of the original tenant who claims to have been residing with the tenant at the time of his death can resist execution of a decree passed against a member of the tenant's family who undisputedly was accepted by the landlord as a tenant on the death of the original tenant."

"11. The question that arises for consideration in such cases is whether the tenancy is joint or separate. In the former case notice on any one of the tenants is valid and a suit impleading one of them as a defendant is maintainable. A decree passed in such a suit is binding on all the tenants. Determination of the question depends on the facts and circumstances of the case. No inflexible rule or straitjacket formula can be laid down for the purpose. Therefore, the case in hand is to be decided in the facts and circumstances thereof."

30. In the instant case, even if the pleadings and evidence is

considered as a whole, it appears that it is a single tenancy and

the tenancy rights devolve on the heirs of the deceased tenant.

There is no division of the premises or of the rent payable any

time. It is necessary to mention here that the legal heirs of

26 WP.2404-95.odt

deceased Parsharam respondent / original defedant Nos.1 to 3

herein had not contested the suit and they have agreed to

vacate the premises. Thus, no separate notice was required to

be issued to respondent / original defendant No.4 late

Ramkishan for default in payment of the rent. Even assuming

that the status of respondent / defendant No.4 late Ramkishan

was determined in the suit bearing Regular Civil Suit No.13 of

1976 as a tenant, however, till then there is a default of

payment in rent from 1973-1974 till 1978. In view of the

same, the learned Judge of the Trial Court has rightly passed

decree for recovery of the rent as against the respondent /

original defendant Nos.1 to 4.

31. So far as the notice under Section 106 of the Transfer of

Property Act to be issued to the tenant is concerned, the

Supreme Court in a case V. Dhanapal Chettiar Vs. Yesodai

Ammal reported in AIR 1979 Supreme Court 1745 has

observed that in order to get the decree or order for eviction

against a tenant under any State Rent Control Act it is not

necessary to give notice under Section 106 of Transfer of

Property Act. The Supreme Court has further observed that

determination of a lease in accordance with the Transfer of

27 WP.2404-95.odt

Property Act is unnecessary and a mere surplusage because the

landlord cannot get eviction of the tenant even after such

determination. The tenant continues to be so even thereafter.

That being so, making out a case under the Rent Act for

eviction of the tenant by itself is sufficient and it is not

obligatory to issue notice in accordance with Section 106 of the

Transfer of Property Act. In paragaraph No.9 by giving

reference to the Provisions of the Bombay Rent Act the

Supreme Court has made the following observations :

"Adverting to the provisions of the Bombay Rents, Hotels and Lodging House Rents Control Act, 1947 it would be found from the definition section 5 that any person remaining in the building after the determination of the lease is a tenant within the meaning of clause (11). Section 12 of the Bombay Act says that the landlord shall not be entitled to the recovery of possession of any premises so long as the conditions mentioned in sub-section (1) are fulfilled nor any suit for recovery of possession shall be instituted by a landlord against a tenant on the happening of the events mentioned in sub-section (2) until the expiration of one month next after the notice is served on the tenant in the manner provided in section 106 of the Transfer of Property Act, as required by the said sub-section. Section 13 provides that a landlord may recover possession on certain grounds. Is it not plain then that on the happening of the events or on the fulfillment of the conditions mentioned in sections 12 and 13 etc. the landlord becomes entitled to recover possession from the tenant, otherwise not. It will bear repetition to say that under the Transfer of Property Act in order to entitle the landlord to recover possession determination of the lease is necessary as during its

28 WP.2404-95.odt

continuance he could not recover possession, while under the State Rent Act the landlord becomes entitled to recover possession only on the fulfillment of the rigour of law provided therein. Otherwise not. He cannot recover possession merely by determination of tenancy. Nor can he be stopped from doing so on the ground that he has not terminated the contractual tenancy. Under the State Rent Control Acts the concept of the contractual tenancy has lost much of its significance and force. Identical is the position under the Bihar Act. The definition section permits the tenant to continue as a tenant even after the determination of the contractual tenancy. Section 11 gives him protection against eviction by starting with a non- obstante clause and providing further that he shall not be liable to eviction from any building except in execution of a decree passed by the Court for one or more grounds mentioned in Section 11. Does it not stand to reason to say that a decree can be passed if one or more of the grounds exist and such a decree can be passed against an existing tenant within the meaning of the State Rent Act? Similar is the position under the Kerala Lease and Rent Control Act, 1965 and the East Punjab Urban Rent Restriction Act, 1949. We shall refer to the provisions of the Madhya Pradesh and Andhra Pradesh State Rent Acts when we come to review the decisions of this Court in relation to those Acts."

32. The learned counsel for respondent / defendant No.4

has placed his reliance in a case Sitaram Narayan Shinde and

others Vs. Ibrahim Ismail Rais and others reported in 2005 (1)

Mh.L.J., 35, however, the facts of the present case is altogether

different and the ratio laid down cannot be made applicable to

the facts and circumstances of the present case. The learned

counsel for the respondent / defendant No.4 has placed his

29 WP.2404-95.odt

reliance in a case Mani Nariman Daruwala @ Bharucha

(Deceased) through LRs. and others Vs. Phiroz N. Bhatena and

others reported in (1991) 3 Supreme Court Cases 141 ,

however, the issue about jurisdiction of the court to entertain

the suit on an application depends upon the averments

contained in the plaint was considered, the said issue is not

involved in this case. Furthermore, in paragraph No.18, the

Supreme Court has observed that the High Court's interference

with findings of facts of an inferior court not called for in

absence of any perversity. In the instant case, however, the

Lower Appellate Court's decision suffers from perversity and as

such the interference is necessary to restore the judgment and

decree passed by the Trial Court.

33. So far as the requirement of the suit property by the

petitioners / plaintiffs are concerned, admittedly the

petitioner / plaintiff is a trust in terms of the provisions of

Section 13(1)(g) of the Bombay Rent Act, if the landlord is a

trustee of the Public Charitable Trust, it would be sufficient if

the premises are required for occupation for the purpose of the

trust. Section 13(1)(g), which is necessary for the present

discussion is reproduced herein below :

30 WP.2404-95.odt

"13. When landlord may recover possession. - (1) Notwithstanding anything contained in this Act [but subject to the provisions of sections 15 and 15A,] a landlord shall be entitled to recover possession of any premises if the Court is satisfied -

            (a)     .....
            (b)     .....
            (c)     .....
            (d)     .....
            (e)     .....
            (f)     .....
            (g)     that the premises are reasonably and bona fide

required by the landlord for occupation by himself or by any person for whose benefit, the premises are held [or where the landlord is a trustee of a public charitable trust that the premises are required for occupation for the purposes of the trust; or "

34. In a case, Bandu Ravji Nikam Vs. Shri. Acharyaratna

Deshbushan reported in 2003 (1) ALL MR 198 , this Court has

held that where landlord a Public Charitable Trust,

requirement of pleading and proof to establish ground under

Section 13(1)(g) different from one required for any other

landlord. The trust succeed required to plead and prove only

that premises is required for occupation for the purposes of

trust and nothing more. Relevant paragraph No.4 of the

judgment is reproduced herein below :

"4. Having considered the rival submissions, I shall first deal with the plea that there is no pleading whatsoever with regard to the purpose of requirement of the respondent trust in the plaint. As rightly contended by the respondent, since

31 WP.2404-95.odt

the respondent is a Public Charitable Trust, the requirement of pleading as well as proof to establish the ground under section 13(1)(g) of the Act would be different than the one required by any other landlord which is not a Public Charitable Trust. This can be spelt out from the plain language of section 13(1)(g) of the Act which reads thus: "13. When landlord may recover possession. "(1) Notwithstanding anything contained in this Act, a landlord shall be entitled to recover possession of any premises if the Court is satisfied ---

(g) that the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held or where the landlord is a trustee of Public Charitable Trust that the premises are required for occupation for the purposes of the trust; or"(Emphasis supplied)

On plain language of this provision, when the landlord is a Public Charitable Trust, what is required to be pleaded and proved so as to succeed on this ground is only that the premises are required for occupation for the purposes of the trust and nothing more. Our High Court in the case of (Kishinchand Marjimal & others v. Bai Kalavati & others), reported in A.I.R. 1973 Bom. 46 (para 21) has held thus: "Thus second contention of Mr. Chitale is that the finding of the two courts that the trustees require the premises for their use is contrary to law as they have not recorded a clear finding that the trustees reasonably and bona fide require the premises. This submission is also not tenable because in amending section 13(1)(g), if the legislature intended that the requirement of the trustees should also be proved to be bona fide and reasonable they would have stated so. Instead they have merely used the words "or where the landlord is a trustee of a Public Charitable Trust that the premises are required for occupation for the purposes of the trust". It is an alternative ground in respect of premises belonging to Public Charitable Trusts added to the ground which originally stood in Clause (g) of section 13(1), by Bombay Act 61 of 1953 to advance the cause of public charity by not

32 WP.2404-95.odt

allowing it to suffer for want of accommodation. The ground merely required the trustees to establish that there is some requirement importing an element of necessity which compels them to file a suit for eviction. Such a requirement has adequately established in the facts and circumstances of the present case. I do not think that anything more was required by law. The two courts below are therefore, right in holding that the trustees satisfied the requirement of section 13(1)(g)."

35. In the facts of the present case, petitioner No.6 herein on

behalf of the petitioner has deposed before the Trial Court.

According to him, the trust required the suit premises for

construction of the marriage hall. The purpose of the trust is

to perform work for social benefits. In cross-examination, in

response to a question, the petitioner No.6 has deposed that

the trust has no other property except the suit property.

According to him, the trust has passed the resolution to

construct the marriage hall. He has admitted that no

arrangements were made for rasing the funds required for

construction of the proposed marriage hall. He has also

admitted that the trust has not prepared the plan nor applied

to the Municipal Council for sanction of the plan for the

proposed marriage hall. Respondent / defendant No.4 has

admitted in his cross-examination that the Samaj (trust) is

doing the social work and the said social work is like education

33 WP.2404-95.odt

of the children and the marriage of the young people. He has

further admitted that the trust needs the premises for the said

purpose. He has also admitted in his cross-examination that

the rental premises is avaialable at Jalgaon and he will get the

rental premises. He has shown his ignorance as to whether

there is marriage hall in existence for Sikhwal Samaj for the

benefits for which the trust was established, though residing in

Jalgaon since last 40 years. Even he has shown his ignorance

as to how many houses of Sikhwal Samaj people in Jalgaon

and whether there are 5000 people of Sikhwal Samaj residing

in Jalgaon.

36. The learned Adhoc District Judge has observed in

paragaraph No.14 of the judgment that though such type of

admissions given by respondent / defendant No.4, the same is

not going to prove the bonafides of the plaintiff / trust. Even

the learned District Judge has observed that the greater

hardship would be caused to defendant No.4 compared to the

plaintiff / trust as the plaintiff / trust could not establish his

bonafide requirements. In my considered opinion, the said

observations are contrary to the provisions of 13(1)(g) of the

Bombay Rent Act.

34 WP.2404-95.odt

37. In terms of the provisions of Section 13(1)(g), the

petitioner / trust is not required to prove its bonafide

requirement. The petitioners / plaintiffs have established that

there is some requirement importing an element of necessity

which constrained the petitioner / trust to institute the suit for

eviction. There is no dispute that the petitioner / trust has

objectives like the upliftment of the people of their Sikhwal

Samaj, spread education amongst them and to arrange the

marriages of young people from their community. Thus, the

petitioner / trust requires the said property to fulfill the objects

of the trust. In view of the same, the observations made by the

learned 4th Additional District Judge, Jalgaon are perverse in

nature and the judgment and decree passed in Civil Appeal

No.36 of 1984 is thus liable to be quashed and set aside by

restoring the judgment and order passed by the Trial Court.

Hence, I proceed to pass the following order :

ORDER

1. The Writ Petition is hereby allowed.

2. The judgment and decree passed by 4th Additional District Judge, Jalgaon in Civil Appeal No.36 of 1984, dated 27.06.1994 is hereby quashed and set

35 WP.2404-95.odt

aside and the Judgment and decree passed by the Joint Civil Judge Junior Division, Jalgaon in Regular Civil Suit No.136 of 1976 dated 21.06.1983 stands confirmed.