Present Civil Revision Application under section 29(2) of the Bombay Rent Act has been preferred by the petitioner herein - original defendant to quash and set aside the impugned judgement and decree dtd.31/3/1990 passed by the learned Civil Judge (J.D.), Rajpipla in Regular Civil Suit No.27 of 1986, confirmed by the learned appellate court by the impugned Judgement and Order dtd.24/6/1996 passed by the learned Assistant Judge, Bharuch in Regular Civil Appeal No. 37 of 1990, by which the learned trial court has decreed the eviction suit mainly on the ground that the original defendant had disputed the title of the original plaintiff as owner / landlord.
It appears that it was the case on behalf of the respondent that as such he is the owner of the disputed land in question, which he has purchased. However, the learned trial court refused to consider the title and/or ownership of the defendant as owner on the ground that the rent court has no such jurisdiction. However, in the appeal preferred by the petitioner herein
- original defendant, learned appellate court has also given finding with respect to transaction in favour of the petitioner - original defendant observing that the transaction / sale deed in favour of the defendant is void. However, it is required to be noted and it is not in dispute that the main dispute with respect to ownership of the petitioner herein - original defendant is pending before the Civil Court. Even otherwise, it is submitted that the rent court has no such jurisdiction to decide the dispute with respect to title and/or ownership and as such the learned trial court has rightly did not decide such an issue.
Today when the present Civil Revision Application is taken up for final hearing Mr.Jitendra Patel, learned advocate appearing on behalf of the petitioner - original defendant has stated at the bar that he is restricting the present Civil Revision Application with respect to the finding given by the learned appellate court with respect to transaction of the petitioner - original defendant by which the learned appellate court has given finding that the transaction against the petitioner is void.
Mr.Jitendra Patel, learned advocate appearing on behalf of the petitioner has further stated at the bar that he does not challenge the Judgement and Orders / decrees passed by both the courts below so far as passing of the eviction decree is concerned, however, has submitted that such decree would be subject to the ultimate outcome of the suit which has been filed by the petitioner - original defendant of Regular Civil Suit No.16 of 1997 pending in the Court of learned Civil Judge (J.D.), Rajpipla.
Mr.Jitendra Patel, learned advocate appearing on behalf of the petitioner has further submitted that as possession of the petitioner was protected in the present Civil Revision Application, liberty may be reserved in favour of the petitioner herein to submit an appropriate application for injunction in the pending suit, otherwise, the suit itself would become infructuous and if ultimately the suit filed by the petitioner herein - original defendant is decreed and he is held to be owner of the suit property, in that case, the decree passed by both the courts below, cannot be executed and the same would be mere a paper decree.
Mr.Anal Shah, learned advocate appearing on behalf of the respondents (now heirs and legal representatives of the original plaintiff) has submitted that as such the learned trial court did not decide the issue with respect to the title of the petitioner
- original defendant. However, he has submitted that the same has been considered by both the courts below as defence of the petitioner, however, he is not in a position to dispute that the learned appellate court / learned rent court has no jurisdiction to decide the dispute with respect to the title and/or transaction in favour of the petitioner - original defendant.
Mr.Anal Shah, learned advocate appearing on behalf of the respondents has further submitted that no liberty to be reserved in favour of the petitioner, as requested to submit appropriate application for injunction in the pending suit, as the eviction decree which is being confirmed by this Court is required to be executed.
Heard the learned advocates appearing on behalf of the respective parties at length.
At the outset, it is required to be noted that Mr.Patel, learned advocate appearing on behalf of the petitioner is not questioning the legality and validity of the judgement and decree passed by the learned trial court confirmed by the learned appellate court in passing the eviction decree. However, he has challenged the finding of the learned appellate court dismissing the appeal and confirming the judgement and decree passed by the learned trial court in holding the transaction in favour of the petitioner - original defendant as void. When the learned appellate court comes to the conclusion that the rent court has no jurisdiction to decide the dispute with respect to title and therefore, the learned appellate court could not have considered the legality and validity of the transaction of the petitioner. The aforesaid has substance.
It is required to be noted that a substantive suit is pending between the parties, filed by the petitioner - original defendant with respect to the title / ownership of the property in question and/or with respect to transaction in favour of the petitioner
- original defendant. Therefore, while confirming the judgement and decree passed by the learned trial court, confirming the finding given by the learned trial court in favour of the petitioner - original defendant holding that such a transaction is void, is hereby quashed and set aside, as the same is to be decided by the Civil Court in the pending suit, in accordance with law and on merits and on the basis of the evidence led, for which this Court has not expressed any opinion on merits.
Now, so far as the request made by Mr.Patel, learned advocate appearing on behalf of the petitioner to submit appropriate application for injunction in the pending suit to protect the possession of the petitioner and/or to observe that the decree passed by the learned trial court confirmed by this Court will be subject to the ultimate outcome of the suit is concerned, as such no such relief can be granted. However, it is observed that as and when any such application is made, the same be considered in accordance with law and on merits, if permissible under the law. It goes without saying that if ultimately the petitioner succeeds in the suit and he is held to be owner, then the consequences shall follow in accordance with law.
With these, present Civil Revision Application is allowed in part to the aforesaid extent only and rest of the judgement and decree passed by the learned trial court confirmed by the learned appellate court is hereby confirmed, as stated hereinabove. Rule is made absolute to the aforesaid extent. In the facts and circumstances of the case, there shall be no order as to costs.
[M.R.
SHAH, J.] rafik Top