Bombay High Court

Mr. Neelesh Madhavdas Shah And Ors vs Smt. Chandramaniben Jeevandas Shah And ... on 27 August, 2024

2024:BHC-AS:34276




                                                                         903-sa-909-2022-(j).doc



                    4
     varsha                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CIVIL APPELLATE JURISDICTION
                                      SECOND APPEAL NO. 909 OF 2022

                    Mr. Neelesh Madhavdas Shah and Ors                     ... Appellants

                                Vs.
                    Smt. Chandramaniben Jeevandas Shah and                 ... Respondents
                    Ors.


                    Mr. Bhushan Walimbe a/w. Mayank i/b. Priyal G. Sarda, for
                    Appellants.
                    Mr. Vijay Killedar for Respondent.
                                                               CORAM: GAURI GODSE, J.
                                          CLOSED FOR ORDER ON: 16th JULY 2024
                                                PRONOUNCED ON : 27th AUGUST 2024


                    ORDER:

1. This second appeal is preferred by the original defendants

nos. 1 to 3 ("appellants") to challenge the concurrent judgments and

decrees declaring the plaintiff as a sole and exclusive owner of the

suit property and directing the appellants to hand over possession of

the suit property to the plaintiff. There is also a declaration granted

that the probate obtained in the Probate Proceeding No. 169 of

1995 is not binding upon the plaintiff to the extent of the suit

property.

Page no. 1 of 11

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2. Learned counsel for the appellants submitted that the suit

property originally belonged to one Manmohandas, who died leaving

behind his three sons, Haridas, Jeevandas and Madhavdas. He

submitted that Jeevandas died issueless in the year 1979, leaving

behind his wife, i.e. plaintiff as his sole heir. He submitted that

Madhavdas expired in the year 1994, leaving his wife, i.e. defendant

no.2, his son, defendant no.1 and his daughter, defendant no.3 as

his heirs. He submitted that the third son, Haridas, died in the year

1982, leaving behind defendant No. 4 as his sole heir. Learned

counsel for the appellants further submitted that there was a

partition of the joint family property, and the suit property was

allotted to the share of the plaintiff's husband, i.e. Jeevandas.

However, the plaintiff started residing with her relatives in

Hyderabad after Jeevandas expired in the year 1979. He submitted

that the suit property was given to Haridas, i.e. predecessor in the

title of defendant no.4, on a monthly tenancy basis. Accordingly,

Haridas used to send the rent amount to the plaintiff at Hyderabad.

3. Learned counsel for the appellants submitted that it was the

plaintiff's case that the suit property consisting of the shop was

closed in the year 1992, and hence, possession was delivered to

the plaintiff, and the suit property was kept locked as she was

residing at Hyderabad. Learned counsel for the appellants Page no. 2 of 11

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submitted that the plaintiff further pleaded that in the month of

December 1996, the plaintiff's relative came across public notice

pertaining to the suit property, and hence, she filed a suit on the

apprehension that the defendants were indulged in making some

transaction in respect of the suit property. Learned counsel for the

appellants submitted that the appellants filed their written statement

and admitted that the suit property was with Haridas in the capacity

of tenant and that he was paying rent. They further contended that

the deceased Haridas had assigned his tenancy rights to

defendants nos. 5 and 6 by executing a Will. Thus, the appellants'

case was that, in view of the probate, the tenancy rights in the suit

property were transferred to defendants nos. 5 and 6.

4. Learned counsel for the appellants further submitted that in

view of the issue regarding inducting Haridas as a tenant in the suit

property, the Civil Court had no jurisdiction to entertain the suit. He

submitted that the findings recorded by the Trial Court on issue no.

1 regarding tenancy rights of defendant nos.1 to 3 is, thus, without

jurisdiction. He further submitted that even the First Appellate Court

failed to take into consideration that in view of the issue regarding

inducting Haridas into the suit property, the Civil Court would not get

jurisdiction to decide the suit. He thus submitted that the issue with

Page no. 3 of 11

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regard to the Civil Court's jurisdiction is the question of law required

to be decided in the Second Appeal.

5. In support of his submissions, the learned counsel for the

appellants relied upon the decision of this Court in the case of

Dhondi Tukaram Mali Vs Hari Dadu Mang 1. Learned counsel for the

appellants, by relying upon the said decision submitted that this

court has taken a view that if a plea is raised by the defendant in the

suit that he is a tenant or protected tenant under the Maharashtra

Tenancy and Agricultural Lands Act 1948 ("Tenancy Act"), that plea

is ultimately referable to the provisions of the Tenancy Act and the

purpose of raising the plea is to claim the protection of tenancy.

Therefore, in the suit filed against the defendant on the ground that

he is a trespasser, if a plea that he is a tenant or protected tenant is

raised, the Civil Court would have no jurisdiction to deal with that

plea. Thus, learned counsel for the appellants, by relying upon the

said decision, submitted that even in the present case, the civil court

would get no jurisdiction in view of the issue regarding the tenancy

of Haridas under the Bombay Rents, Hotel and Lodging House

Rates Control Act 1947 ("Rent Act") and the assignment of the

tenancy in favour of defendants nos. 5 and 6 and thereafter in

favour of the appellants.

1 AIR 1952 (Bom) 969.

Page no. 4 of 11

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6. I have considered the submissions made by the learned

counsel for the appellants. A perusal of both the impugned

judgments indicates that the courts have answered the point of

jurisdiction by holding that the Civil Court has jurisdiction to entertain

the suit. The relationship between the parties is not in dispute. It is

also not in dispute that after the death of the original holder, i.e.

Manmohandas, there was partition amongst his sons, and the suit

property was allotted to the share of the plaintiff's husband. Hence,

admittedly, Jeevandas was the owner of the suit property, and after

his death, the plaintiff became the sole owner of the suit property.

7. The plaintiff's case appears to be that the suit property was

initially given to Haridas on monthly tenancy. The plaintiff further

pleaded that the shop was closed in 1992, and the possession had

been delivered to the plaintiff. Defendant no.4, i.e. sole heir of

Haridas, filed his written statement and admitted that the suit

property was given to the share of the plaintiff's husband in partition.

Defendant no. 4 admitted that Haridas was occupying the suit

property and he was paying rent. However, defendant no.4 had

shown ignorance of the plaintiff's plea that Haridas had delivered

the possession to the plaintiff. It is defendant no. 4's plea that

Haridas had assigned his tenancy rights to defendants nos. 5 and 6

by way of a Will and that the said Will was probated; hence, in view Page no. 5 of 11

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of the probate, defendant nos. 5 and 6 were tenants of the plaintiff in

respect of the suit property.

8. Defendants nos. 5 and 6 failed to appear in the suit, though

served. Hence, the suit proceeded ex-parte against them. So far as

the present appellants are concerned, they are heirs and legal

representatives of the third brother, i.e. Madhavdas. In the written

statement, the appellants admitted that the suit property was given

to Haridas on rent. However, they denied that Haridas had delivered

possession of the suit property to the plaintiff. Appellants pleaded

that Jeevandas, i.e., the plaintiff's husband and his two brothers,

Haridas and Madhavdas, were carrying business together. It was

their case that after Haridas, Madhavdas started carrying business,

and after his death, his sons, i.e. appellants, started carrying on the

business in the suit shop. Appellants further contend that after

Haridas, Madhavdas started paying rent to the plaintiff and that

Madhavdas has also spent the amount on repairs and maintenance

of the suit shop. Thus, the appellants claimed their tenancy rights in

the suit shop. Therefore, it was their contention that they, being in

possession of the suit property as tenants, the Civil Court would not

get jurisdiction to decide the suit.

9. It is pertinent to note that, admittedly, only Haridas was

inducted as a tenant. The sole heir and legal representative of Page no. 6 of 11

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Haridas, i.e defendant no.4, shows ignorance on the plaintiff's case

that Haridas handed over back the possession to the plaintiff. As per

defendant no.4, in view of the Will executed by Haridas, tenancy

rights were assigned to defendant nos. 5 and 6. However, the suit

proceeded ex-parte against defendant nos. 5 and 6. Thus, in view of

the aforesaid facts, both the courts held that the appellants failed to

prove that they were in possession of the suit property as tenants.

Both the courts referred to the plaintiff's contention regarding

inducting Haridas as a tenant. Both the courts further held that the

burden of proving the claim of tenancy rights was on the appellants.

However, it was not their case that they were joint tenants with

Haridas. Thus, on examination of the pleadings and evidence on

record, both the courts refused to accept the appellants' contentions

that they were in possession of the suit property as tenants. Hence,

both the courts held that the Civil Court had jurisdiction over the suit.

10. The suit is filed for possession based on title. The plaintiff's

title is not in dispute. The Civil Court, therefore, has inherent

jurisdiction over the suit. There is no ouster of the Civil Court to

decide whether the defendant is occupying the property as a tenant

or not. In the provisions of the Rent Act as well as the Maharashtra

Rent Control Act 1999, there is no ouster of the Civil Court's

jurisdiction. The decision in the case of Dhondi Mali, relied upon by Page no. 7 of 11

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the learned counsel for the appellants, would have no bearing on

the facts of the present case. Under the Tenancy Act, the issue with

regard to the tenancy is expressly ousted in view of Section 70, read

with Section 85 of the Tenancy Act. In view of Section 85, the civil

court's jurisdiction is ousted to settle, decide or deal with the

questions that are to be settled, decided or dealt with by the

Mamlatdar or the Tribunal under the provisions of the Tenancy Act.

Thus, unlike the provisions of ouster under Section 85 of the

Tenancy Act, there is no exclusion of the Civil Court's jurisdiction

provided under the Rent Act. In the decision of Dhondi Mali, the

Hon'ble Division bench of this court held that if any question

mentioned in Section 70 of the Tenancy Act arises between the

parties, it will have to be decided by the Mamlatdar. Therefore, it is

held in the said decision that, in a suit filed on the footing that the

defendant is a trespasser, if he raises a plea that he is a tenant or a

protected tenant, the civil court would have no jurisdiction to deal

with that plea. It is further held that in such cases, the proper

procedure would be to direct the party raising such a plea to obtain

a decision from the Mamlatdar within a reasonable time.

11. It is also necessary to refer to Section 85A of the Tenancy

Act, which provides for the Civil Court to refer to the Competent

Authority to decide any issue arising in a civil suit that is required to Page no. 8 of 11

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be settled, decided, or dealt with under the Tenancy Act. Sub-

section (2) of Section 85A of the Tenancy Act says that such issue

shall be dealt with and decided by the Competent Authority in

accordance with the provisions of the Tenancy Act, and its decision

be communicated to the Civil Court, and such Civil Court shall

thereupon dispose of the suit. So, even as per the provisions of the

Tenancy Act, the civil court's jurisdiction that is ousted is only the

jurisdiction to decide the issues that are to be dealt with and decided

under the Tenancy Act. Thus, the legal principles settled in the

decision of Dhondi Mali are not applicable to the present case.

12. The Apex Court interprets the issue with regard to Section 28

of the Rent Act in the decision of Natraj Studio Vs Navrang Studios2.

The Apex Court held in paragraph 18 as under:

"18. Thus exclusive jurisdiction is given to the Court of Small Causes and jurisdiction is denied to other courts (1) to entertain and try any suit or proceeding between a landlord and a tenant relating to recovery of rent or possession of any premises, (2) to try any suit or proceeding between a licensor and a licensee relating to the recovery of licence fee or charge, (3) to decide any application made under the Act and, (4) to deal with any claim or question arising out of the Act or any of its provisions. Exclusive jurisdiction to entertain and try certain suits, to decide certain applications or to deal with certain claims or questions does not necessarily mean

2 (1981) 1SCC 523 Page no. 9 of 11

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exclusive jurisdiction to decide jurisdictional facts also. Jurisdictional facts have necessarily to be decided by the court where the jurisdictional question falls to be decided, and the question may fall for decision before the court of exclusive jurisdiction or before the court of ordinary jurisdiction. A person claiming to be a landlord may sue his alleged tenant for possession of a building on grounds specified in the Rent Act. Such a suit will have to be brought in the Court of Small Causes, which has been made the Court of exclusive jurisdiction. In such a suit, the defendant may deny the tenancy but the denial by the defendant will not oust the jurisdiction of Court of Small Causes. If ultimately the court finds that the defendant is not a tenant the suit will fail for that reason. If the suit is instituted in the ordinary civil court instead of the Court of Small Causes the plaint will have to be returned irrespective of the plea of the defendant. Conversely a person claiming to be the owner of a building and alleging the defendant to be a trespasser will have to institute the suit, on the plaint allegations, in the ordinary civil court only. In such a suit the defendant may raise the plea that he is a tenant and not a trespasser. The defendant's plea will not straight away oust the jurisdiction of the ordinary civil court but if ultimately the plea of the defendant is accepted the suit must fail on that ground. So the question whether there is relationship of landlord and tenant between the parties or such other jurisdictional questions may have to be determined by the court where it falls for determination -- be it the Court of Small Causes or the ordinary civil court. If the jurisdictional question is decided in favour of the court of exclusive jurisdiction the suit or proceeding before the ordinary civil court must cease to the extent its jurisdiction is ousted."

emphasis applied Page no. 10 of 11

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13. Thus, in the present case, the jurisdiction of the civil court is

not ousted only because the defendants have raised the plea of

tenancy under the Rent Act. On the examination of the pleadings

and evidence on record, both the courts held that the appellants

failed to prove that they were in possession of the suit property in

the capacity of tenants. Thus, both the courts held that the civil

court's jurisdiction is not barred. Therefore, in view of the legal

principles settled by the Apex Court in the case of Natraj Studios,

the grounds argued on behalf of the appellants require no

consideration by this Court.