Kalidas C Patel Since Decd Through ... vs Ramanbhai S Patel Since Deceased ...
2023 Latest Caselaw 4330 Guj

     C/CRA/1740/1985                            JUDGMENT DATED: 12/06/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
              R/CIVIL REVISION APPLICATION NO. 1740 of 1985
                                  With
              R/CIVIL REVISION APPLICATION NO. 1741 of 1985

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
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1     Whether Reporters of Local Papers may be allowed               No
      to see the judgment ?

2     To be referred to the Reporter or not ?                        No

3     Whether their Lordships wish to see the fair copy              No
      of the judgment ?

4     Whether this case involves a substantial question              No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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            KALIDAS C PATEL SINCE DECD THROUGH HEIRS
                                   Versus
       RAMANBHAI S PATEL SINCE DECEASED THROUGH HIS HEIRS
================================================================
Appearance:
DECEASED LITIGANT for the Applicant(s) No. 1
MR KM SHETH(838) for the Applicant(s) No. 1.1,1.2,1.3,1.4
MR VIVEK V BHAMARE(6710) for the Opponent(s) No. 1,1.2,1.3,1.4,1.5,1.6
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    CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                           Date : 12/06/2023
                       COMMON ORAL JUDGMENT

1. The present Civil Revision Applications are directed against the common impunged judgment and order dated 19.06.1985 in Regular Civil Application No.123 of 1983 and Regular Civil Application No.152 of 1983, whereby, both the Regular Civil Applications came to be partly allowed and it was held that the applicant/landlord herein

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was not entitled to the possession of the suit premises, but, he was entitled to claim the arrears of rent only.

2. The brief facts in the present case are that the father of the applicant was the owner of the suit property situated at village-Vagra, Taluka-Bharuch. The suit property has been described in paragraph No.1 of the plaint. The father of the respondents, namely, Sankarbhai Govindbhai Patel was the original tenant of the suit property and was paying rent of Rs.14/- per month for the hotel on the ground floor and residence on the first floor. It is further the case of the plaintiff that after the death of Sankarbhai Govindbhai Patel, the respondent No.1 herein was doing the business with hotel on the ground floor and residing on the first floor of the suit premises alongwith family. It is the case of the respondents-defendants that they had become statutory tenants of the suit property after death of the original tenant-Sankarbhai Govindbhai Patel. It is the case of the plaintiff that the main tenancy commenced from the second date of gregarian month and ending on the first day of the next month. According to the applicants, the respondents had paid rent of the suit premises up to 02.06.1977, thereafter, they have not paid rent and they are in arrears of rent for more than six

C/CRA/1740/1985 JUDGMENT DATED: 12/06/2023

months. Therefore, the original plaintiff has served suit notice on 05.03.1978 and demanded arrears of rent for the period 02.06.1977 to 01.03.1979 i.e. for 21 months being Rs.294/-. At the same time, the tenancy of the respondents also came to be terminated.

2.1 That the respondents-defendants did not tender any amount of rent as demanded in the suit notice nor any dispute was raised in respect of the standard rent within one month from the date of receipt of the notice. Accordingly, the applicants-plaintiffs filed suit for recovery of possession of the suit premises on the ground of arrears of rent and also claimed Rs.294/- as the outstanding amount of rent and mesne profit at the rate of Rs.14/- per month was also claimed till the suit premises was handed over to the plaintiffs.

2.2. The suit came to be resisted by the original defendant Sankarbhai Govindbhai Patel by filing written statement. It was denied that the rent was due from 02.06.1997 to 01.03.1979 i.e. for 21 months and that the rent of Rs.294/- was outstanding for the said period. It was contended by the respondents-defendants that they were paying the rent regularly and that they had paid the rent

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upto 02.02.1979. It was contended that they were the oldest tenant of the plaintiff-landlord. The plaintiff-landlord used to pass receipts for the rent paid and sometimes no receipt was given for the rent paid being the oldest tenant of the plaintiff-landlord. The defendant tenant contended that in good faith he was paying the rent regularly despite no requisite receipt was being given for certain months. The defendant-tenant denied the claim of the plaintiff- landlord and prayed that the suit for eviction be dismissed.

3. The learned Trial Court, after completion of the pleadings, was pleased to frame the following issues:-

(i) Whether the plff. Proves that the deft. is in arrears of rent from 2.6.1977?

(ii) Whether the plff. Proves that the deft. was in arrears of rent for more than six months on the date of notice?

(iii) Whether the deft. proves that the suit notice is illegal and invalid?

(iv) Whether the deft. proves that he has paid up the rent upto 2.9.1979?

(v) Whether the deft. proves that he is ready willing to pay the rent?

(vi) Whether the plff. Is entitled to get the possession of the suit premises?

(vii) Whether the plff. Is entitled to get the amount as prayed?

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(viii) What order and decree?

4. The findings and decision on the said issues are as follows:-

"1. In the affirmative.

2. In the affirmative.

3. In the negative.

4. In the negative.

5. In the negative.

6. Patrly in the affirmative for suit shop only.

7. In the affirmative.

8. As per following final order.

4.1 By the judgment and order dated 04.02.1983, the learned Trial Court partly decreed the suit for eviction and held as follows:-

"(15) The plaintiff's suit for recovery of possession of the suit premises of ground floor only is partly allowed.

(2) The defendant shall hand over actual physical and vacant possess of the suit shop to the plff. on or before 1 st June, 1983.

(3) The plaitiff's suit for recovery of Rs.318/- being arrears of rent and further mesne profite at the rate of Rs.14/- per month from the date of suit till realisation of possession is also decreed.

(4) The plaintiff to apply separately for determination mesne profits under Order 20 rule-12 of C.P.C.

(5) The Parties shall bear their own costs in the suit.

        (6)     Decree to be drawn accordingly."




      C/CRA/1740/1985                           JUDGMENT DATED: 12/06/2023

5. The applicants-plaintiffs filed Regular Civil Appeal No.123 of 1983 and the respondent-tenant filed Regular Civil Appeal No.152 of 1983 before the Extra Assistant Judge, Bharuch. By the impugned judgment and order dated 19.06.1985, the Lower Appellate Court was pleased to partly allow both the appeals. It was held as follows:-

"(1) Appeal No.123/83 is partly allowed and the decree passed by the learned trial Judge for possession of ground floor shop is set aside.

(2) Appeal No.152/83 is partly allowed. The decree passed by the learned trial Judge for possession of the suit premises is set aside.

(3) The plaintiff is not entitled to claim possession of the suit premises but he is entitled to claim arrears of rent only. Copy be placed in RCA No.153/83.

(4) Parties to bear their own costs of these appeals. Pronounced in open Court on this 19 th day of June, 1985."

6. Learned counsel Mr. K.M. Sheth appearing for the applicant-landlord submitted that it is not in dispute that the applicants were owners of the suit premises comprising of the hotel on the ground floor and residential premises on the first floor. The complete suit premises was given on monthly rent of Rs.14/- to the respondents-tenants. He submits that admittedly no dispute has been raised in

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respect of the standard rent of the suit premises and neither the tenants have paid any rent for the period claimed in the suit. He submits that cogent evidence has been brought on record by the plaintiff-landlord and it has been concurrently held by both the Courts below that the respondents-tenants were in arrears on rent for more than six months. However, he submits that the learned Trial Court only partially decreed the suit by holding that the plaintiff-landlord was entitled for possession of the ground floor of the suit premises and not the first floor of the suit premises. He further submits that the Lower Appellate Court in the appeal proceedings further modified the decree passed by the learned Trial Court holding that the landlords were not entitled for possession of the suit premises for non-joinder of party and that they were only entitled for the arrears of rent. He submits that both the Courts below have fallen in error. He submits that once the landlord has proved that the tenant was in arrears of rent for more than six months, the eviction must follow.

He submits that the applicants-plaintiffs had given the suit premises to the respondent-tenants consisting of the ground floor and the first floor as described in the plaint itself. He submits that the Lower Appellate Court has concurrently

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held that the entire suit premises was given on rent as described in paragraph No.1 of the suit plaint. He further submits that the Lower Appellate Court ought to have held that all the legal heirs of the deceased-original tenant were tenants in common, and therefore, the entire suit premises was represented by the defendants on behalf of all the legal heirs of the deceased-original tenant. He submits that in the written submissions, it has been admitted by the respondent-tenants that it was Ramanbhai Patel - Respondent No.1 herein who was paying the rent of the suit premises after the death of his father. He submits that even in the reply the said Ramanbhai has not stated that he was residing in the suit premises alongwith other family members in addition to his family. Learned counsel Mr. K.M. Sheth further submits that Ramanbhai Patel is the only legal heir who has contested the suit and also deposed as witness in the trial. He submits that the suit notice was addressed to all the tenants of the tenancy, however, the Lower Appellate Court has denied the relief of possession of the suit premises on the ground that the mother of the respondent No.1-Ramanbhai Patel was not joined in the suit, and therefore, no decree could be passed against her. The same would be erroneous. He

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submits that in case of joint tenants, there can be no division of the premises or the rent which was being paid by the original tenant. He submits that therefore, the decree of eviction if passed, would have been binding all the legal heirs. He submits that in view thereof the Lower Appellate Court has committed an error in denying the relief of possession of the suit premises while only decreeing the suit for arrears of rent. He submits that in the appeal proceedings, the applicants-landlords had prayed for decree only in respect of the upper floor of the suit premises and had not challenged the decree in respect of the ground floor of the suit premises. However, the Lower Appellate Court has exceeded its jurisdiction by setting aside the decree of possession for the ground floor- hotel in the appeal preferred by the applicants-landlord. He submits that the present Civil Revision Applications be allowed and the impugned judgment and order be set aside.

7. Per contra, Mr. Vivek V. Bhamare, learned counsel appearing for the respondent-tenants submitted that the respondents herein are the legal heirs of the original tenant-Sankarbhai Govindbhai Patel. He submits that the suit premises being the ground floor for hotel and the

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upper floor for residence was given on rent by the original owner to the original tenant-Sankarbhai Govindbhai Patel by rent note on 24.11.1962. He submits that the plaintiff- landlord had issued notice for eviction on 05.02.1977 on the ground of arrears of rent for more than six months. On 26.03.1979, the original tenant had replied to the suit notice issued by the landlord. He submits that on 23.04.1979, Regular Civil Suit No.200 of 1979 came to be initiated against the respondent-tenants herein for arrears of rent and eviction. He submits that the plaintiff-landlord alleged that the respondents were in arrears of rent from 02.06.1977. He submits that the last rent paid by the respondents was paid on 19.11.1976 and receipt No.94 was issued against the same. He submits that it is the case of the respondent that the rent was not being collected monthly. He submits that the plaintiff-landlord had admitted that the rent for the period between 02.08.1976 to 02.08.1977 was collected together by one single receipt. He submits that though the plaintiffs-landlord have accepted the rent from the respondents-tenants, some entries with respect to the receipt of the same were properly not made by the plaintiffs-landlord deliberately with a view to create the false case. He submits that the

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respondent-tenants had paid the rent regularly and that they were also making the separate diary entries in respect of the payment of rent which was produced in evidence. He further submits that the respondent-tenants had also produced one independent witness who was witness to the rent being paid to the landlord. He submits that the learned Trial Court erred in disbelieving the said witness.

Mr. Bharmare, learned counsel further submits that no valid notice for eviction was served by the applicant- landlord in accordance with the provisions of the Bombay Rent Act. He submits that the eviction notice dated 05.03.1976 was only served upon the respondent No.1 Ramanbhai Sankarbhai Patel in his capacity as statutory tenant after the death of the original tenant Sankarbhai Govindbhai Patel. He submits that the wife of original tenant and mother of respondent No.1 also being a statutory tenant was not served with any statutory notice. He submits that the wife of the late original tenant and the mother of the respondent No.1 also staying in the suit premises along-with the respondent No.1 tenant. He further submits that the wife of the original tenant was also examined in the suit proceedings. Further documentary evidence has also been produced on record to

C/CRA/1740/1985 JUDGMENT DATED: 12/06/2023

show that wife-Sonaben of original tenant was staying in the suit premises at all times. He submits that these documents have not been challenged by the original landlord. He submits that as per settled proposition, eviction cannot be granted without serving statutory notice on all the tenants. It is an admitted position that no service of notice has been done on Sonaben, the wife of the original tenant, who is also statutory tenant after the demise of the original tenant, and therefore, the suit was bad in law for non-joinder of necessary party. He submits that both the Courts below have appreciated the legal position as well as the evidence on record while passing the impugned judgment and orders. He submits that no interference is called for in the impugned judgment and order as there is no error of law committed by the Courts below. He, therefore, urges that the present Civil Revision Applications be dismissed.

8. Heard the learned counsel for the parties and perused the documents on record.

9. It is an admitted position that after receipt of the suit notice, the tenant has not raised the dispute or challenged the rent and also not paid any arrears of rent as

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demanded. The description of the suit property is described in paragraph No.1 of the plaint, and has been admitted in the written submissions of the respondent- tenants. The suit notice also describes the suit property given on rent to the respondents. It is admitted by the respondent-tenants that they are in possession of tea shop on the ground floor and residing with their family members on the first floor of the suit premises. It is nobody's case in the present proceedings that there are two tenancies with respect to the suit premises i.e. one in the ground floor being tea shop and other for the residential premises on the first floor. Further, both the Courts below have concurrently rendered a finding that the respondent-tenants were in arrears of rent for more than six months in respect of the suit premises. However, on erroneous consideration of facts and evidence, the learned Trial Court committed an error by partly decreeing the suit for eviction and passing the decree for eviction only in respect of the ground floor of the suit premises. The Lower Appellate Court by the impugned judgment and order has rightly held that the partial decree for possession could not have been passed and set aside the same. The evidence in the present case shows that the respondent-tenants have

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not paid the rent for the period 02.06.1977 to 01.03.1979. This fact could not be controverted by the evidence led by the respondent-tenants. The personal note book produced by the respondent-tenants as well as the witness has been disbelieved due to discrepancies. The plantiff evidence has been accepted in respect of issuance of the rent receipts since counter foils duly signed by the tenant on the rent receipts issued are brought on record to show that rent was only paid till 02.06.1977 and not thereafter. These findings have not been challenged by the respondent- tenants in this Court and they have become final. However, the Lower Appellate Court has refused the decree of possession on the ground that the widow of the original tenant and mother of the respondent No.1, who was contesting the suit, was not made a party to the proceedings as she was also legal heir and statutory tenant after the death of the original tenant Sankarbhai Govindbhai Patel. Accordingly, the Lower Appellate Court has held that the plaintiffs-landlord are only entitled to the arrears of rent and not recovery of possession.

10. In the present case, it is seen that appeal was filed against the judgment and decree of the Trial Court only with respect to denial of the possession of the first floor

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residential premises. The rest of the decree being in favour of the applicants herein, the same was not challenged. However, it is seen that the Lower Appellate Court has exceeded its jurisdiction by partly allowing the appeal and setting aside the decree of eviction in respect of the ground floor premises which was not prayed for by the applicants herein in their appeal. The Lower Appellate Court has exceeded its jurisdiction in passing the order beyond the reliefs prayed for by the applicants and as such the order is liable to be set aside. Further, the Lower Appellate Court has also erred in denying the relief of possession of the suit premises to the applicants-landlord herein on the ground that the decree of the Trial Court has not been properly passed as the widow of the original tenant and mother of the respondent No.1 was not joined as a party defendant in the proceedings. It was held that she is a necessary party and so no decree could be passed. Accordingly, the Appeal No.152 of 1983 of the respondents-tenant came to be allowed and the decree for possession was set aside.

11. The said finding of the Lower Appellate Court is in the teeth of the law as laid down by the Hon'ble Supreme Court in the case of Suresh Kumar Kohli v. Rakesh Jain

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and Another, order dated 19.04.2018 in Civil Appeal No.3996 of 2018, wherein, Hon'ble Supreme Court has held thus:-

"20) We are of the view that in the light of H.C. Pandey (supra), the situation is very clear that when original tenant dies, the legal heirs inherit the tenancy as joint tenants and occupation of one of the tenant is occupation of all the joint tenants. It is not necessary for landlord to implead all legal heirs of the deceased tenant, whether they are occupying the property or not. It is sufficient for the landlord to implead either of those persons who are occupying the property, as party. There may be a case where landlord is not aware of all the legal heirs of deceased tenant and impleading only those heirs who are in occupation of the property is sufficient for the purpose of filing of eviction petition. An eviction petition against one of the joint tenant is sufficient against all the joint tenants and all joint tenants are bound by the order of the Rent Controller as joint tenancy is one tenancy and is not a tenancy split into different legal heirs. Thus, the plea of the tenants on this count must fail."

12. In view of the aforesaid observations and the law as laid down by the Hon'ble Supreme Court, the present Civil Revision Applications succeed and are partly allowed. The impugned judgment and order passed by the Lower Appellate Court with respect to denial of possession of suit premises is accordingly set aside. The plaintiff's suit for recovery of possession of the suit premises as described in

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paragraph No.1 of the plaint is allowed. The respondents shall hand over the actual, physical and vacant possession of the suit premises to the plaintiffs-applicants herein on or before 31.12.2023. The plaintiffs are also entitled for arrears of rent as claimed from 02.06.1977 till the date of actual handing over of the suit premises to the applicants- landlord.

13. The Civil Revision Applications are accordingly allowed and disposed of. No order as to costs.

(ANIRUDDHA P. MAYEE, J.)

Manoj Kumar Rai