1. The present second appeal under section 100 of the Code of Civil Procedure has been preferred by the appellant herein – original defendant No.2 to quash and set aside the impugned judgment and decree dated 06/01/2000 passed by learned 1st Joint Civil Judge (J.D.) and JMFC, Amreli in Regular Civil Suit No.75 of 1995 as well as impugned judgement and order dated 30/07/2010 passed by learned Principal District Judge, Amreli in Regular Civil Appeal No.6 of 2000, by which, learned Appellate Court has dismissed the said appeal preferred by the original defendants confirming the judgement and decree passed by learned Trial Court decreeing the suit filed by the original plaintiffs.
2. That the respondent Nos.1 and 2 herein - original plaintiffs instituted Regular Civil Suit No.75 of 1995 against the appellant herein – original defendant and others for recovery of possession, declaration and permanent injunction with respect to suit property. It was the case on behalf of the original plaintiffs that as such the suit property was given on lease to one Karimdada and after his death, one Amnaben was residing in the suit premises as tenant and pursuant to the document exhibited at Exh.49, which was executed by Amnaben, possession of suit property was to be handed over to the original plaintiffs – landlords. Now it was the case on behalf of the original plaintiffs that the defendants have encroached upon the suit property after the death of Amnaben and, therefore, original plaintiffs instituted the aforesaid suit for the aforesaid reliefs. That the suit was resisted by original defendants by filing written statement contending inter alia that at the time of death of Amnaben, defendants were residing with the tenant Amnaben and, therefore, they were in occupation and possession of the suit property after death of Amnaben. It was the case on behalf of the original defendants that their status as tenants has been established in the earlier suits being Regular Civil Suit Nos.235/1975; 82/1966 of 83/1966 and even infact the original defendants were in possession of suit property, which came to be established by decisions of the aforesaid Regular Civil Suits and, therefore, it was denied that the defendants are in illegal and unauthorized possession of the suit property. Learned Trial Court decreed the suit vide judgement and decree dated 06/01/2000 and directed the original defendants to hand over peaceful and vacant possession of the suit premises i.e. one room and osari on first floor to the original plaintiffs and also directed the original defendants to pay mesne profit at the rate of Rs.4/- per month. Learned Trial Court also granted declaration that the original plaintiffs are in possession of front portion of the ground floor i.e. having 72 fts. and 6 fts. with southern side and that the defendants have only right of way to go to their rented premises, which is on the ground floor and which is in their possession. Learned Trial Court also granted permanent injunction as prayed for.
Being aggrieved by and dissatisfied with the judgement and decree dated 06/01/2000 passed by learned Trial Court in Regular Civil Suit No.75 of 1995, the appellants herein – original defendants have preferred Regular Civil Appeal No.6 of 2000 before learned Principal District Court, Amreli and learned Principal District Judge, Amreli vide judgement and order dated 30/07/2010 has dismissed the said appeal confirming the judgement and decree passed by learned Trial Court decreeing the suit.
Being aggrieved by and dissatisfied with the impugned judgement and orders passed by both the Courts below, the appellant herein – original defendant No.2 has preferred the present second appeal under section 100 of the Code of Civil Procedure.
3. Mr.M.B.Parikh, learned advocate appearing on behalf of the appellant herein – original defendant No.2 has vehemently submitted that both the Courts below have materially erred in passing decree for possession and directing the appellant herein – original defendant No.2 to hand over peaceful and vacant possession of the first floor of the suit premises to the original plaintiffs. It is submitted that as such the appellant herein – original defendant No.2 was in possession of the suit property at the time of death of Amnaben and, therefore, considering section 5(11)(c) of the Bombay Rent Act, the appellant herein can be said to be tenant as the appellant was in occupation and possession of the suit premises as tenant and both the Courts below have materially erred in passing decree for possession. Mr.Parikh, learned advocate appearing on behalf of the appellant herein – original defendant No.2 has further submitted that as such the appellant herein – original defendant No.2 was in possession of the suit property is established in the decisions of the earlier suits being Regular Civil Suit Nos.235/1975; 82/1966 of 83/1966 and, therefore, both the Courts below have materially erred in holding that the possession of the appellant herein is illegal and both the Courts below have materially erred in passing decree for possession.
It is further submitted by Mr.Parikh, learned advocate appearing on behalf of the appellant herein – original defendant No.2 that both the Courts below are not justified in passing judgement and decree in favour of the original plaintiffs. It is further submitted by Mr.Parikh, learned advocate appearing on behalf of the appellant herein – original defendant No.2 that even otherwise, both the Courts below have not properly appreciated the evidence on record more particularly Exh.42, 66, 67, 68, etc. in proper perspective.
By making above submissions, it is requested to allow/ admit the present second appeal.
4. Heard learned advocate appearing on behalf of appellant herein – original defendant No.2 and considered the impugned judgement and orders passed by both the Courts below as well as evidence on record from the records and proceedings received from the learned Trial Court. It is not in dispute that so far as appellant herein – original defendant No.2 is concerned, he is tenant on the ground floor. It is also not in dispute that one room and osari was in occupation and possession of one Karimdada as tenant. It is not in dispute that after the death of the said Karimdada, his widow Amnaben was residing in the suit property as tenant. However, after demise of Amnaben, the appellant herein – original defendant No.2, who is tenant on the ground floor has occupied the suit property and is claiming to be tenant by submitting that at the time of death of Amnaben, he and his family members were residing in the suit property and, therefore, he can be said to be tenant u/s.5(11)(c) of the Bombay Rent Act. However, it has come on record that as such earlier suit being Regular Civil Suit No.108 of 1992 was filed by original plaintiffs against Bai Amnaben - widow of Karimdada and even against the appellant herein in the Court of Civil Judge (S.D.), Amreli for recovery of possession and eviction decree on the ground that original tenant Amnaben has sub-letted the suit premises to original defendant No.2 and in that suit, it was specific case on behalf of the appellant herein – original defendant No.2 that Bai Amnaben is in exclusive possession of the suit property and there is no sub- letting by Bai Amnaben as alleged and accepting the same, learned Civil Court dismissed the said suit. It appears that the appellant herein – original defendant No.2 claimed to be in possession as tenant and in occupation and possession as tenant relying upon decisions rendered in earlier suits being Regular Civil Suit Nos.235/1975; 82/1966 of 83/1966. However, considering the decision of the learned Civil Judge (S.D.), Amreli passed in Regular Civil Suit No.108 of 1992 produced at Exh.49, it appears that the appellant herein - original defendant No.2 did not claim that he is tenant of the suit property and on the contrary he denied and it was his specific case that Amnaben is in exclusive possession of the suit property.
5. Now so far as contention on behalf of the appellant herein – original defendant No.2 that as the appellant herein and his family members were residing in the suit property at the time of death of Amnaben and, therefore, he can be said to be tenant under section 5(11)(c) of the Bombay Rent Act is concerned, it is required to be noted that it was specific case on behalf of the appellant herein that he and his family members are taking care of Bai Amnaben, who was all alone and one of the family members was going to sleep in the said premises at night. Considering the above, it cannot be said that on the death of Amnaben, the appellant herein – original defendant No.2 has become tenant under section 5(11)(c) of the Bombay Rent Act. Merely because the appellant herein being a neighbour residing in the ground floor was taking care of Amnaben and frequently visiting and going for sleeping at night, the appellant herein cannot become tenant under section 5(11)(c) of the Bombay Rent Act. Under the circumstances, even if the document produced at Exh.42 under which, the plaintiff claimed that Bai Amnaben had handed over possession to the plaintiffs is not accepted, in that case also, considering the fact that Amnaben was tenant, who died intested and without leaving any heirs and for the reasons stated hereinabove, the appellant herein – original defendant No.2 cannot be said to be tenant under Section 5(11)(c) of the Bombay Rent Act, no illegality has been committed by both the Courts below in passing decree for possession and granting mesne profit. As no submissions have been made by Mr.Parikh, learned advocate appearing on behalf of the appellant herein with respect to second part of the declaration with respect to front portion of the ground floor and permanent injunction granted, this Court is not further considering the same.
6. In view of the above and for the reasons stated hereinabove, no illegality has been committed by learned Trial Court in directing the appellant herein – original defendant No.2 to hand over peaceful and vacant possession to the original plaintiffs and granting permanent injunction and the same is rightly confirmed by the learned Appellate Court, which is not required to be interfered with by this Court in exercise of powers under section 100 of the Code of Civil Procedure.
7. In view of the above and for the reasons stated hereinabove, the present second appeal fails and the same deserves to be dismissed and is accordingly dismissed.
8. In view of the dismissal of the main second appeal, Civil Application No.4458 of 2012 also deserves to be dismissed and is accordingly dismissed. No costs.
[M.R.SHAH,J] *dipti