Gujarat High Court
Rafikbhai Ganibhai Shaikh vs Momin Khalidabanu Ruknodin on 6 September, 2024
NEUTRAL CITATION
C/CRA/395/2024 JUDGMENT DATED: 06/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 395 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RAFIKBHAI GANIBHAI SHAIKH & ORS.
Versus
MOMIN KHALIDABANU RUKNODIN & ANR.
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Appearance:
MR SAMIR AFZAL KHAN(3733) for the Petitioners
MR JF MEHTA(461) for the Respondents
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 06/09/2024
ORAL JUDGMENT
1. Notice for final disposal. Learned advocate Mr. JF Mehta
on caveat waives service of notice for the respondents.
2. By way of present revision filed u/s 29 of the Bombay
Rents, Hotel and Lodging House Rates Control Act (in short “the
Act”), the petitioners have prayed for the following relief:-
“(A) be pleased to Admit and allow this Revision
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Application and thereby call for the records and
proceedings of Civil Appeal No. 83/2013 decided by the
Ld. Appellate Bench of the Small Causes Court,
Ahmedabad, dated 30/07/2024 (Annexure-B), and
after perusing the same, be pleased to quash and set
aside the said judgment and order in the interest of
justice;
(B) Stay the implementation, execution, and operation
of the judgment and order passed by the Ld. Appellate
Bench, Small Causes Court, Ahmedabad, in Civil
Appeal No. 83/2013 dated 30/07/2024 (Annexure-B),
pending the hearing and final disposal of this Civil
Revision Application in the interest of justice.;
(C) Grant such other and further reliefs as may be
deemed just, equitable, and proper in the facts and
circumstances of the case in the interest of justice.”
3. Brief facts of the case are as under:-
3.1 The Revisionists (Petitioners), Rafikbhai Ganibhai Shaikh
and the legal heir of the deceased Dostmohammed Abdul Yusuf
(Abdul Rasul) Shaikh, are the original defendants in H.R.P. Suit
No.15/2010 before the Small Causes Court at Ahmedabad. The
Respondents, Momin Khalidabanu Ruknodin and Momin
Ruknodin Mohamadhusain, are the original plaintiffs in the said
suit. The Petitioners have been lawful tenants of property
situated in Ahmedabad City, Shahpur ward-2 bearing City
Survey No.4907,M.C.No.2898 consist ground floor and first floor
wherein they possessed three rooms on Ground floor
admeasuring 36.68 sq.mts. No.2122-0546-00-0101-S and old
new Tenement Tenement No.0125-25-0661-0001-F, now referred
as a “disputed property”, Ahmedabad, for over 80-90 years. The
tenancy was originally in the name of their Grandfather,
Rehamanbhai Dosumohammed Shaikh, and has since beenPage 2 of 23
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inherited and maintained by the Petitioners. For evidence there
is birth certificate of 1944 (Shitala Card). Both floors were
possessed by different tenants since ages.
3.2 The Respondents, who are residing in adjacent property
have purchased present property in 2007, sought to merge it
with the suit premises and initiated eviction proceedings against
the Petitioners on the alleged grounds of acquiring alternative
accommodation and encroachment. The Small Causes Court, by
its order dated 21/02/2013, dismissed H.R.P. Suit No. 15/2010,
finding no merit in the Respondents’ claims.
3.3 Being aggrieved the Respondent herein (Ori. Plaintiff and
Appellant) have challenged the said order before Ld. Appellate
Bench Of Small Causes Court at Ahmedabad in Civil Appeal
No:83/2013. This Civil Appeal is allowed said Appeal and set
aside the judgment and decree passed by Learned Small Cause
Court No.11 in H.R.P. Suit No.15/2010 on dated 21.02.2013
and also directed to handover vacant and peaceful possession of
the suit premises to the appellant/s-plaintiff/s-landlord-s within
60 days from the date of order i.e 30/07/2024.
3.4 Hence, this revision.
4. Heard learned advocate Mr. Samir Afzalkhan for the
petitioners and learned advocate Mr. JF Mehta for the
respondent appearing on caveat.
5. Learned advocate for the petitioners would submit that
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sons of the tenant has acquired accommodation would not
tantamount to acquire alternative suitable accommodation by
the tenant. He would further submit that in view of section 13(1)
(l) of the Bombay Rent Act (in short “the Act”), the tenant
requires to have dominion over another premises to establish
that tenant has acquired alternative suitable accommodation.
He would further submit that in the present case, tenancy
commenced from the petitioner’s grandfather and great
grandfather. He would further submit that late Rehmanbhai
Shaikh was the tenant of the premises and on his death, in view
of section 5(11)(c) of the Act, the tenancy right were devolved
upon his sons, namely, Ganibhai and Abdul Yusuf, who
continued to occupy the disputed property as legal heirs and
joint tenants [See list of events at page A]. He would further
submit that subsequently, their sons i.e. petitioners inherited
the tenancy right and they have continued to occupy the first
floor and ground floor of the disputed property at monthly rent of
Rs.60/-. He would further submit that as per the judgment of
the learned appellate Court, some of the members of the family
have acquired alleged suitable accommodation. However, it
would not construe as acquisition of the alternative suitable
accommodation for the tenant. This issue was elaborately
discussed by the learned trial Court in the suit proceedings, but
by the judgment of the learned appellate Court. He would
further submit that the learned appellate Court wrongly placed
reliance upon judgment in case of Aziz Fazlehusein Karaka Vs.
Batul Abbasbhai Rangwala reported in 2022(0) AIJEL HC 24384.
Learned advocate Mr. Samir Afzalkhan would further submit
that the learned appellate Court has failed to notice the full
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bench judgment of this Court in case of heirs of Jayantilal
Kanjibhai Vs. Rameshchandra Uttamram reported in 2000(3)
GLR 2110 to notice that acquisition of alternative suitable
accommodation even by spouse would not entitle the landlord to
seek decree against the tenant. He would further submit that
the full bench of this Court after referring the judgment of the
Hon’ble Apex Court rendered finding that it is only when tenant
gets a right to reside in a house other than demised premises on
the happening of any one of the three eventualities mentioned in
section 13(1)(l) of the Act, it should be held that the tenant has
acquired alternative suitable accommodation.
5.1 Learned advocate Mr. Samir Afzalkhan would therefore,
submit that the learned appellate Court judgment is illegal as it
is passed in ignorance of the full bench judgment of this Court.
He also referred to two other judgments; firstly, in case of Anandi
D. Jadhav Vs. Nirmala Ramchandra Kore reported in 2000(3)
SCC 703 and the judgment of the Hon’ble Apex Court in case of
B.R. Mehta Vs. Atma Devi reported in 1987(4) SCC 183 to argue
that ‘acquired vacant possession’ means acquisition of vacant
possession of a suitable accommodation in which one has a right
to reside should be established to satisfy section 13(1)(l) of the
Act.
5.2 Judgment of this Court in case of Soni Jagjivan Narsi Vs.
Manchhaben Odhavji reported in 1975 GLR 991 is also pressed
into service by learned advocate for the petitioner for the same
proposition to establish that if no sufficiency of accommodation
is available for the large family of the tenant, it cannot be held
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that the tenant has acquired alternative suitable
accommodation. Learned advocate for the petitioners while
assailing the judgment and decree passed by the learned
appellate Court would submit that sons of the defendants have
acquired accommodation on their own and there is no evidence
to establish that the petitioners have contributed in purchasing
the alleged alternative suitable accommodation. However, the
learned appellate Court has missed this issue totally and as
such, messed finding in the impugned judgment and decree,
which is illegal and against the settled principles of law.
5.3 At the cost of repetition, learned advocate for the
appellants would submit that the judgment in case of Aziz
Fazlehusein Karaka (supra), reliance of which has been placed
by the learned appellate Court is totally on different facts and
couild not be treated to be applicable on the facts of the present
case.
5.4 Upon above submissions, learned advocate Mr. Samir
Afzalkhan prays to allow this revision by quashing and setting
aside impugned judgment and decree passed by the learned
appellate Court and restore the judgment and decree passed by
the learned trial Court.
6. A fortiori, learned advocate Mr. JF Mehta would submit
that while exercising revisional power conferred u/s 29(2) of the
Act, this Court may not exercise discretion by setting aside
cogent findings arrived at by the learned appellate Court. He
has placed reliance upon the judgment of the Hon’ble Apex
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Court in case of Helper Girdharbhai Vs. Saiyad Mohmad
Mirasaheb Kadri reported in AIR 1987 SC 1782.
6.1 By placing reliance upon judgment of Navinchandra
Nathalal Doshi Vs. Jagdishbhai Shankerlal Modi reported in
2004(2) GLH 430 as well as in case of Pranjivan Khushaldas Vs.
Dhanuben Wd/o Devchand and others reported in 2001(2) GLH
223; and another judgment in case of Shantaben Naranbhai
Dalvadi and others Vs. Vadilal Kacharabhai Prajapati reported in
2000(1) GLH 362, learned advocate for the respondents would
submit that if one of the joint tenant resides in the alternative
suitable accommodation, that would be sufficient for getting
decree of eviction against rest of the tenants. He would further
submit that the tenancy, which ensued from late Rehmanbhai
Shaikh in view of operation of section 5(11)(c) of the Act, became
joint tenancy for all the petitioners. He would further submit
that even it is the case of the petitioners that they are joint
tenants. So, one of the tenants, if acquired alternative suitable
accommodation, it could be treated as alternative suitable
accommodation for all and upon such, the order of eviction
could be passed in view of operation of section 13(1)(l) of the Act.
Thus, it is submitted that since revision is belie of merit, may
not be entertained.
7. The instant revision is filed challenging the conclusion
arrived at by the learned appellate Court in its point No.2. It is
in regards to acquisition of alternative suitable accommodation.
Point No.2 framed by the learned appellate Court reads as
under:-
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“Whether the learned trial Court has made an error to
decide the issue of acquired alternative suitable
accommodation by defendant/s – tenant/s under
section 13(1)(l) of the Bombay Rent Act?”
8. The learned appellate Court answered the issue No.2 in
affirmative and upturn the judgment and decree passed by the
learned trial Court. Noticeably, the learned trial Court while
declined to grant eviction decree, had framed several issues
(Exh.20), amongst them, issue No.3 was in regards to acquisition
of alternative suitable accommodation, which reads as under:-
“Whether the plaintiff proves that defendant has
acquired suitable accommodation?”
9. While answering issue No.3 in favour of the tenant, the
learned trial Court believed that the defendants have acquired a
suitable accommodation at Shahpur, Julaivada bearing City
Survey No.4265/A/1/11 and some of the defendants are
residing in their new premises. The sale deed of this premises is
also produced at Exh.27 dated 23.11.2009. But, the learned
trial Court believed that the said accommodation is purchased
by son of the defendant No.1 and not by the defendant No.1.
The learned trial Court believed that the defendant No.1 is the
tenant within the meaning of section 5(11)(c) of the Act and since
the defendant No.1 has no dominion over the accommodation
purchased by his son, it cannot be held to be acquisition of
alternative accommodation by tenant. The categorical finding of
the learned trial Court is in para 13 of the judgment, which
reads as under:-
“13 In present case on hand the acquisition admittedly
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was not by tenant/defendant no.1 himself but by the
sons of defendant no.1. The defendant no.2 is also
resides in the suit premise since long time. The
defendant has produce a certificate of vaccination at
exh- It reveals that father of defendant no.2 was resided
in the suit premises since long time. The plaintiffs have
purchased said property by sale deed in year 2007 with
sitting tenant of the premises. The plaintiff has
produced sale deed of the property purchased by the
sons of defendant no.1 at exh-27, on perusing said sale
deed property consist ground floor and first floor. The
sons of defendant no.1 are resides in said : property
with their family as the plaintiff himself admitted that
both the sons are married. The plaintiff has not
produced any cogent evidence to prove that the
defendants have contributed to purchase said property.
The plaintiff has to prove that, the defendants have
dominant over the acquire property and they have legal
right to reside in that property. No doubt, it is moral
duties of the sons of defendant no.1 to take care and
provide shelter to their father, but from that facts court
can not draw presumption of acquisition of
accommodation by the defendant. The defendant no.1 in
his cross examination stated that his sons doing their
own business and work separately since last five years,
evidence of the defendant no.1 was recorded in year
2012, it means from 2007 sons of defendant are doing
their business. The suitable accommodation acquire by
sons of the defendant no.1 in year 2009,i.e on 23-11-
2009. The defendant no.1 has produce a document of
income return of his one of son, this document is not
exhibited but from this document this court may take
judicial note that ½ (half) amount of sale consideration
paid by one of son.”
10. In the above findings, the learned trial Court has also held
that general presumption cannot be drawn that acquisition of
the alternative premises by son of the tenant necessarily be out
of the funds provided by the father – defendant No.1. Thus, it
could be noticed that even while negating the case of the
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landlord about acquisition of the alternative suitable
accommodation, the learned trial Court believed that sons of the
defendant No.1 have another premises for accommodation.
11. The learned appellate Court in appeal, has examined the
family tree of the tenant while examining point No.2 as stated
herein above. Relevant observations of the learned appellate
Court are thus:-
“While referring written statement at exh.14, it
transpires that defendants have specifically denied the
abovesaid contentions of plaintiff in para-8 and averred
that the suit premises was originally rented to their
great grand father Rahemanbhai Dosumohmad Shaikh
before almost 52 years ago at monthly rent of Rs.10/-.
It is also averred by the defendant that the plaintiff has
not produced a single document to prove that he
defendant has acquired suitable accommodation.
However, considering the documentary evidences
produced by plaintiff, it transpires that plaintiff has
produced the certified copy of the sale deed of the
premises which is alleged alternative suitable
accommodation at exh.27. In said document, it reveals
that one Mr. Mahebubmiya Kasamali Saiyed has
executed the registered sale deed in favour of (1)
Abdulsamad Abdulrafiq Shaikh and (2) Mohmadsadiq
Abdulrafiq Shaikh. Looking to the description of the
said property, it reveals that the alleged suitable
accommodation consist of ground floor and first floor of
the property for the residential purpose. Considering
the cross-examination of defendant no.1 namely,
Rafiqbhai Ganibhai Shahikh at exh.51, it is stated by
the said witness that his grand father Rahemanbhai
Dosumohmad Shaikh was original tenant of the suit
premises and after demise of Rahemanbhai
Dosumohmad Shaikh and his wife, deceased father of
the defendant no.1 Ganibhai Rahemanbhai and
deceased father of defendant no.2 AbdulrasulPage 10 of 23
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Rahemanbhai became statutory tenant of the suit
premises. Father of defendant no.1 Ganibhai
Rahemanbhai expired on dated 03.09.1985 and since
from the birth of defendant no.1, he is residing in the
suit premises. Perusing cross-examination of DW-1, it
transpires that the defendant has admitted that the
suit premises is situated on ground floor and having
three room, kitchen and bathroom therein. It is also
stated by the said witness that after demise of said
Ganibhai, DW-1 and Abdulbhai Kadarbhai are natural
heirs and Abdulkadar has left the suit premises in the
year of 1984 ie before the death of their father Ganibhai
Rahemanbhai and therefore, after demise of Ganibhai
Rahemanbhai only Rafiqbhai Ganibhai became
statutory tenant of the suit premises. It is admitted by
the said witness that the heirs of Ganibhai
Rahemanbhai are having tenancy right in the suit
premises and all heirs of the deceased Ganibhai
Rahemanbhai are residing jointly in suit premises
except Abdulbhai Kadarbhai who left the suit premises
in 1984. It is admitted by the said witness that
Dostmohmad Abdulyusuf Shaikh is nephew of DW-1. It
is stated by the said witness that he is having two son.
Out of these two sons, one Abdulsamad Rafiq Shaikh is
doing labour work at Punjab Honda, Gurukul,
Ahmedabad and Mohmadsadiq is also doing labour
work since last more than five years. It is also stated
that they were residing jointly in suit premises.
However, due to spoil relationship with Abdulsamad he
shifted at Shahpur, Julaiwada in his own property.
DW-1 has referred exh.27, the certified copy of the sale
deed produced by the plaintiff and stated that he is
having no knowledge about the consideration of the
said premises. Thus, it can be ascertained that one of
the son of defendant Abdulsamad Rafiq Shaikh has
acquired suitable residential property at the address
which is mentioned in exh.27 and that confirms the
pleadings of the plaintiff that one of the joint tenant has
already acquired suitable accommodation in
Ahmedabad. Further, looking to the written statement
of the defendants and the affidavit of evidence at
exh.51, the defendant has not raised the issue
regarding the suitability of the alternatively acquiredPage 11 of 23
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accommodation. Therefore, the aspect of suitability is
not in the issue in the present case. Further, on the one
hand defendant had took plea that his both sons are
doing labour work and DW-1 being a father of
Abdulsamad and Mohmadsadiq is not in knowledge
from where the both sons have accumulated the
consideration amount of Rs.6,45,000/- in the year of
2009. Considering exh.27, it can be ascertained that
both sons of Rafiqbhai Ganibhai have jointly purchased
the said alleged alternative suitable accommodation at
Shahpur, Ahmedabad. It is pertinent to note here that
the said fact remains uncontroverted by the defendant
rather during the cross-examination, defendant has
admitted the fact of the execution of the sale deed in
favour of his both sons. It is required to note here that
the said alleged suitable accommodation admeasuriong
about 49.01 sq. yds. of ground floor which is also
having first floor and terrace.”
12. Presumption of the tenancy has been noticed by the
learned appellate Court to believe that tenants have joint
tenancy. [See list of events at page A]. Even, it is not the case of
the tenants that they have no joint tenancy. The learned
appellate Court thus, believed that since one of the joint tenants
has acquired alternative suitable accommodation, the other
tenants are liable to vacate the premises.
13. In Navinchandra Nathalal Doshi (supra), this Court held
that in absence of any independent evidence to the contrary by
the tenant to show that the alternative accommodation was not
acquired solely by his sons, eviction on the ground of such
alternative accommodation is valid. Para 13 of the judgment is
relevant, which reads as under:-
“13. In my view, there is no substance in this revision
application. So far as acquisition of alternativePage 12 of 23
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accommodation is concerned, it has come in evidence of
the defendant himself that for the purpose of his
business, he requires telephone connection and in the
rented premises, the telephone connection was already
disconnected about five years back. His explanation is
that the Company which had provided telephone
connection, got the same disconnected. It has come in
evidence that, in the so-called rented premises, which is
known as “Kruti Apartments” (there are two flats in
question), there are already two telephone connections,
one in the name of the wife of the present petitioner-
defendant and the other in the name of the son of the
defendant. The tenant has stated in his evidence that in
the rented premises, he as well as his sons are residing
together. Even that stand is taken in the written
statement. The tenant has also stated in his evidence
that for his business, he requires telephone connection.
The defendant has not stated anything as to in which
manner his wife was able to purchase the flat in
question. As against that, the defendant, as per his
evidence, is doing civil construction work and,
accordingly, he is in the building construction activity.
The aforesaid aspect of the evidence is appreciated by
both the courts below and they have, ultimately,
reached the conclusion that the plaintiff has proved his
case for getting possession on the ground of acquisition
of suitable alternative accommodation on the part of the
tenant. It is required to be noted that so far as aforesaid
two flats situated in Kruti Apartments are concerned,
there is no partition wall and measurement of both the
flats have also been given by the tenant in his evidence,
which is sufficient to accommodate all the family
members. Apart from the aforesaid aspect of the matter,
it is required to be noted that the tenant has not even
examined any independent witness in order to
substantiate his say that the sale consideration was
paid independently by his wife and his son.”
14. In the present case also, the tenant has not examined any
independent evidence to establish that he has not contributed in
the purchase of accommodation in which his sons are living. It
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becomes significant as the fact establishes on the record that
sons of the defendant No.1 have no affluent profession and they
are doing labour work as well as working garage. The principle
of reverse burden indicates that the tenant has to establish that
sons have purchased the accommodation on their own and not
with the contribution of the father.
15. It is undeniable aspect that the sons have acquired
alternative suitable accommodation. It is to understand that
words “landlord and tenant” have been given larger meaning
under the Rent Act. It could be envision from the definition of
tenant given u/s 5(11)(c) of the Act, which reads as under:-
“[“5(11) “tenant” means any person by whom or on
whose account rent is payable for. any premises and
includes-
(a) xxxxxx
(b) xxxxx
(bb) xxxxx
(c)
[(i) in relation to premises let for residence any
member of the tenant’s family residing with the
tenant at the time of, or within three months
immediately preceding, the death of the tenant as
may be decided in default of agreement by the
Court, and]
[(ii) in relation to premises let for business, trade
or storage, any member of the tenant’s family
carrying on business, trade or storage with the
tenant in the said premises at the time of the
death of the tenant as may continue after his
death, to carry on the business, trade or storage,Page 14 of 23
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as the case may be, in the said premises and as
may be decided in default of agreement by the
Court;”]
16. Section 5(11)(c) exposes that if premises are let out for
residence, then any member of the tenant’s family residing ” with
the” tenant at the time of, or within three months immediately
parceling the death of the tenant would be the tenant of the said
premises.
17. In case of Hasmukhlal Raichand Shah Versus Arvindbhai
Mohanlal Kapadia reported in 1988 (2) GLR 1442, this Court
after referring to the judgment of the Bombay High Court in case
of Jayantilal Muljibhai Parikh V/s. Och-havlal Vithaldas Parikh,
Civil Revision Application No. 751 of 1950 decided on Nov. 23,
1950, held as under:-
“If there is evidence on record that tenant and his
family members are living together, one of them has
acquired suitable residential accommodation and if
there is no evidence to the effect that they had not been
looking upon themselves as one unit or when the
members of the family live together, mess together,
then, acquisition of suitable residential accommodation
by one of them would be considered to be the
acquisition of suitable residential accommodation by
the tenant. The position might be different in some
cases. In the cases where the husband and wife are
staying separately because of the dispute or for some
other reason or where the son is staying in other
premises because of the dispute or because after
marriage he might consider that he should reside
separately and acquires other suitable residential
accommodation, then in those cases it can be said that
the tenant has not acquired suitable residential
accommodation. But while considering this questionPage 15 of 23
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one cannot miss sight of the normal conditions
obtaining in the Indian society where husband and wife
with their children reside together as one unit and mess
together. In my view, if Sec. 13(1)(L) is interpreted Only
to mean that the tenant himself must have acquired
suitable residential accommodation, then the said
provision can be defeated by the tenant easily.”
18. Thus, the word “acquisition’ should not be restricted to the
cases of title but it must be interpreted in a wider sense that the
tenant has a roof over his head, may the acquisition in law is
done in favour of any member of the family, living and messing
together as one unit with the tenant. This would be more
applicable when the sons of tenants have purchased or acquired
vacant possession – suitable residence and living there. Thus,
undoubtedly, the acquisition has to be given wider meaning.
Once in a case of joint tenancy, one of the joint tenant acquired
alternative suitable accommodation, it is to be treated as tenant,
has acquired alternative suitable accommodation within the
operation of section 13(1)(l) of the Act.
19. Referring to the judgment of Hasmukhlal Raichand Shah
(supra), again in case of Shantaben Naranbhai Dalvadi (supra),
in para 5.4, this Court held as under:-
“5.4 Thus, once it is found that the original tenant, his
wife and at least some of his sons were living together
as a family unit and messing together, then the
acquisition of suitable residential accommodation by
the wife would be considered to be acquisition of
suitable residential occupation by the husband-tenant.”
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The evidence on record does not indicate that sons of the
defendant, who were living together at earlier point of time, were
not messing together or not dinning together or were not living
as a family unit. The sons started living separately on
acquisition of alternative suitable accommodation. The title of
the property may lie with the sons, the father possibly could not
lay any legal claim to the property owned by his sons, but so far
as the tenanted property or suit property was used by him, are
to be vacated on more importantly, as the other residential
house is available for the benefit of the entire family. In this
situation, it is to be held that the tenant has acquired alternative
suitable accommodation.
20. This Court in Aziz Fazlehusein Karaka (supra), in para 14
to 17 held as under:-
“14. Thus, the core issue, which requires deliberation in
the present revision application is whether the
defendant nos.2 and 4, i.e. the applicants can be
ordered to be evicted by resorting to the provision of
section 13(1)(l) of the Rent Act on the ground that other
three joint tenants have acquired alternative
accommodation. Section 13(1)(l) of the Act reads as
under:
“SECTION 13 : When landlord may recover
possession (1) Notwithstanding anything
contained in this Act [but subject to the
provisions of section 15], a landlord shall be
entitled to recover possession of any premises if
the Court is satisfied.-
(l) that the tenant after the coming into operation
of this Act has built, acquired vacant possession
of or been allotted a suitable residence.”
15. This Court in the case of Pranjivandas Khushaldas
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(supra) in an analogous issue has held thus:
“8. The requirement of Section 13 (i)(1) is that, the
landlord shall be entitled to recover possession of
any premises if the Court is satisfied that the
tenant, after coming into operation of this Act, has
built or acquired vacant possession of or has been
allotted a suitable residence. It is under this
ground that eviction of the tenants was sought by
seeking amendment in the plaint. It may be
mentioned that this ground was not there in the
plaint initially. It is only when the landlord came
to know that the tenant has constructed
alternative accommodation that this plea was
raised in the plaint. Shri M. B. Parikh for the
revisionist has, however, contended that the
tenants have not only built alternative
accommodation suitable for their residence but
have also shifted in that accommodation.
However, there was no evidence that the tenants
have shifted in that accommodation and that
finding was recorded by the Trial Court, which
was confirmed by the Appellate Court. Shifting to
the alternative accommodation is not the
requirement of Section 13(i)(1) of the Act. There
are three situations contemplated under this
Section. One is that the tenant is rendered liable
for eviction if he has built a suitable
accommodation. The second is that the tenant
acquires vacant possession of a suitable
residence. The third is that he has been allotted a
suitable residence. The requirement of possession
is only in the second category when the tenant
actually acquires vacant possession of a suitable
residence. Acquisition of possession is not
necessary when the tenant has built an
accommodation for himself or for herself.
Likewise, if an alternative accommodation has
been allotted for the residence of the tenant then
also, it is not the requirement of the law that the
tenant must have shifted to the alternative
accommodation, so allotted to him or to her. In
this case, the Trial Court has recorded categorical
finding that it is an admitted fact that thePage 18 of 23
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defendant No. 1(a) Dhanuben purchased land in
Wadi of Ichchha Doshi and had built a building,
consisting of three floors, namely ground floor,
first floor and second floor. The plan of the
building was also filed vide Ex. 81. If a three
storeyed building was constructed and nowhere it
was alleged by the tenants that the
accommodation in this three storeyed building
was not sufficient for accommodating the tenants
after demise of the tenant-in-chief, it cannot be
said that the claim of the landlord was liable to be
rejected. The Trial Court, as well as, the Appellate
Court have rejected the claim of the landlord
mainly on two grounds. The first is that all the
tenants have not built suitable accommodation for
their residence. It may be mentioned that the
tenant-in-chief was Devchandbhai and,
Dhanuben is his widow. After the death of
Devchandbhai, during the pendency of the suit,
eight legal representatives inherited tenancy
rights as has been found by the two courts below.
On the other hand, if any one of the tenants
builds a suitable accommodation to accommodate
all the tenants, that is sufficient for the landlord
for getting a decree for eviction. Unnecessary time
and energy has been wasted by the Appellate
Court in examining as to who has constructed the
house and what was the fund raised for the
purpose and who contributed to the fund for
completion of the house. Consequently, this
ground is not sustainable that all the tenants in
common or joint tenants should have built their
own houses separately. There is no whisper from
the tenants that the accommodation in three
storeyed building is insufficient to accommodate
the eight legal representatives of the deceased
tenant. If that is so then, it can be said that that
accommodation constructed by Dhanuben is
sufficient for the residence of all the tenants in
common or joint tenants.”
16. In the case of Suresh Kumar Kohli (supra), the
Supreme Court has explicated the concept of joint
tenancy and tenancy in common and has held thus:
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“Conclusion:-
” 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.”
17. The conspectus of the aforenoted observations of
this Court and the Apex Court will propose that the
requirement of Section 13 (1)(1) of the Rent Act is that,
the landlord shall be entitled to recover possession of
any premises if the Court is satisfied that the tenant,
after coming into operation of this Act, has built or
acquired vacant possession of or been allotted a
suitable residence and 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. If these
persons become tenants in common or joint tenants, it
is not the requirement of the law that all the tenants
should have built accommodation for their residence. In
the present case, the joint tenancy has been inherited
by the defendants from their fathers who were living
jointly and upon their demise, the defendants have
continued to occupy the demise property jointly.
Defendant no.1 is residing in the property purchased in
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his wife’s name and defendant no.3 has purchased the
property in his own name. Defendant no.5 is residing
with his wife at Astodia in a flat. Neither the defendants
no.2 and 4 nor the other defendants have adduced any
evidence that they could not have been accommodated
in the alternative accommodations. The report of the
Court Commissioner, Exh.11 indicates that except
defendant no.4, no one was found present in the
demise property. Hence, when three defendants have
been found to have been residing separately and
defendant nos.1 and 3 are residing in the property
owned by them, the defendant nos.2 and 4 cannot
insist upon occupying the demise property. Thus, even
if no evidence has emerged that the defendant nos.2
and 4 have not acquired any property, their eviction
from the demise property can be ordered in wake of the
established evidence that other joint tenants have
acquired their property and are living residing
separately.”
21. In judgment of Soni Jagjivan Narsi (supra) relied upon by
learned advocate Mr. Samir Afzalkhan, the Coordinate Bench of
this Court has remanded the matter back to the learned trial
Court since there was no finding with regard to suitable
residence within the meaning of section 13(1)(l) of the Act. The
Coordinate Bench of this Court has presumed the real test,
which is to be applied, is that whether the alternative
accommodation, which the tenant has acquired, is sufficient to
accommodate him and/or his dependents or not.
22. In the present case, it is elaborately discussed by the
learned appellate Court to believe that the accommodation,
which is alternatively acquired by the tenant is sufficient enough
to accommodate.
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23. In case of Anandi D. Jadhav (supra) and in case of B.R.
Mehta (supra), there was an issue that heirs or sons of the
tenant, who are tenants of the demised premises, if acquired
accommodation, can be treated as tenant in case of father being
the sole tenant. The case of Anandi D. Jadhav (supra) is also
referred in case of heirs of Jayantilal Kanjibhai (supra). In that
case, the tenancy was a person centric. In the present case, the
tenancy is joint tenancy. The issue of joint tenancy was not
under scrutiny in those cases. In view of this, the judgments
relied upon by learned advocate Mr. Samir Afzalkhan would not
help the case of the petitioners.
24. One more argument was canvassed by learned advocate
Mr. Samir Afzalkhan that tenants had filed suit seeking relief
that they may not be dispossessed without following procedure
of law. This suit was decreed, which indicates that the
petitioners are statutory tenants. This submission has no avail
to the issue on hand. In a decision, if plea about acquisition of
alternative accommodation, decree in the suit not evict the
tenant without following the provision of law is not helpful.
25. Finally, I may take note of the judgment of the Hon’ble
Apex Court in case of Helper Girdharbhai (supra) in context of
exercise of powers by the High Court u/s 29(2) of the Act. The
Hon’ble Apex Court held thus:-
“We must, however, guard ourselves against permitting
in the guise of revision substitution of one view wherePage 22 of 23
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two views are possible and the Court of Small Causes
has taken a particular view. If a possible view has been
taken, the High Court would be exceeding its
jurisdiction to substitute its own view with that of the
courts below because it considers it to be a better view.
The fact that the High Court would have taken a
different view is wholly irrelevant. Judged by that
standard, we are of the opinion that the High Court in
this case had exceeded its jurisdiction.”
26. Thus, as stated and held by the Hon’ble Apex Court, this
Court can exercise revisional jurisdiction u/s 29(2) of the
Bombay Rent Act for the limited purpose with a view to satisfy
itself that the decision of the courts below was according to law
or not. The High Court cannot substitute its own finding for the
one reached by the courts below on reappraisal of evidence.
Thus, the revision failed to clear test of legal scrutiny.
27. For the foregoing reasons, the CRA fails and stands
dismissed, in limine, at admissions stage.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
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