2008(3) ALL MR 237
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

J.H. BHATIA, J.

Dattatraya Krishnaji Asalekar Vs. Shri. Shravana Dhonu More (Deceased Through L.Rs.)

Civil Revision Application No.440 of 2001

27th February, 2008

Petitioner Counsel: Mr. VISHWANATH TALKATE
Respondent Counsel: Ms. SUHASINI MUTALIK

Bombay Rents, Hotel and Lodging House Rates (Control) Act (1947), Ss.13-A(1), 31-J - Application for eviction and possession - Suit property a joint family property - Bonafide requirement of applicant of the suit premises for occupation by himself and other members of his family proved - Partition not yet taken place - However, held the applicant alone can claim eviction and possession under S.13-A(1) of Bombay Rent Act. 1999(2) Mh.L.J. 330 and 1998 Bom.R.C. 226 - Ref. to. (Paras 8 & 9)

Cases Cited:
John A. R. Deans Vs. Anil Kumar Mitra, 1999(2) Mh.L.J. 330 [Para 8]
Kanta Udharam Jagasia (Miss.) Vs. C.K.S. Rao, 1998 Bom.R.C. 226 [Para 8]


JUDGMENT

JUDGMENT :- This Revision Application is filed by the original applicant against the dismissal of the application for eviction and possession under Section 13-A(1) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the "Bombay Rent Act").

2. The respondent is a tenant in the suit premises, which is part of House No.272, situated at Raviwar Peth, Phaltan, District Satara. According to the applicant, the house is his ancestral property. The respondent was inducted as a tenant in the same. The applicant was in service of the Indian Armed Forces and he retired from the service of Army on 1.8.1987 and he started a shop in a small place at Phaltan. Taking into consideration the size of his family, the accommodation in his possession was too small for his business and residence. Therefore, the applicant bonafide required the disputed premises for occupation of the respondent's residence as well as business. A notice dated 3.11.1987 was served terminating the tenancy of the respondent but as the respondent did not vacate, the applicant filed Application No.19 of 1988 before the Competent Authority, Pune Division, Pune, under Section 13-A(1) of the Bombay Rent Act against the respondent for eviction and possession. It may be noted that similar Application Nos.17 of 1988 and 18/88 were also filed against two other tenants in the same building.

3. The respondent contested the application. It was contended by him that he was inducted as tenant by the father of the present applicant. The applicant is not the exclusive owner of the suit property as there has been no partition between the applicant and the said members of his family. Therefore, he cannot be treated as landlord. It was contended that in view of this, the applicant cannot claim eviction and possession of the suit premises for his residence and business and it was also contended that the applicant had some other house at Phaltan and therefore he did not require the suit premises bonafide for residence of himself and the members of his family.

4. Certain issues were framed by the Competent Authority and after hearing the parties, the Competent Authority came to the conclusion that there exists relationship of landlord and tenant between the applicant and the respondent. He also held that the applicant bonafide required the suit premises for occupation by himself and other members of his family, but the Competent Authority rejected the application only on the ground that the property is a joint family property of the applicant and the other members of the family and there was no evidence to show that the partition had taken place. In view of this, it was held that the applicant alone could not claim eviction and possession under Section 13-A(1) of the Bombay Rent act.

5. The impugned order was passed on 29.12.1988. Initially, a writ petition was filed challenging that order. Later on, the Writ Petition was converted into this Revision Application.

6. Heard learned Counsel for the applicant and perused the impugned order as well as other relevant material which was placed before the Competent Authority. It may be noted that the respondent had died pending the Revision Application and after his death, his L.Rs. are brought on record, but none has appeared on behalf of them today, when the matter is taken up for final hearing.

7. After going through the pleadings of the parties and the evidence led before the Competent Authority, there is no dispute that the disputed premises, being part of House No.272, are the ancestral property of the present applicant. Admittedly, the father of the applicant had inducted the respondent as a tenant in the suit premises. There is no dispute that his father is no more alive. The applicant clearly deposed that because he was in the Indian Army since 1959 till 1.8.1987, in his absence his brother used to collect rent of the disputed premises from the respondent on his behalf and also used to issue the rent receipts to the tenants. He produced counter-foils of the rent receipts issued on his behalf. He also examined his brother Ramesh, who explained that they were four brothers including the applicant Dattatraya, Ramesh, Chandrakant and Devdas. Ramesh clearly deposed that he himself had no right, title or interest in the suit house. He also deposed that Chandrakant and Devdas also did not have any right, title or interest in the suit house and, according to him, the applicant alone is the owner of the House No.272. He also deposed that he used to collect rent from the tenants in the House No.272 on behalf of the applicant. This part of the evidence was not seriously challenged in the cross-examination of the applicant and his brother. Only in the cross-examination of his brother Ramesh, he was asked as to whether partition had taken place, to which Ramesh replied that no partition had taken place among the brothers. On the basis of this statement that partition had not taken place, the Competent Authority held that the present applicant alone cannot maintain the application for eviction and possession because he is only a co-owner.

8. The learned Counsel for the applicant vehemently contended that even one of the co-owners can commence proceeding under Section 13-A(1) of the Bombay Rent act if all the requirements of that Section are fulfilled and if the other co-owners have not seriously disputed the claim of the applicant. He is fully supported in this respect by an authority of this High Court in John A. R. Deans and others Vs. Anil Kumar Mitra, 1999(2) Mh.L.J. 330 as well as the Supreme Court authority in Kanta Udharam Jagasia (Miss.) Vs. C.K.S. Rao, 1998 Bom.R.C. 226. In both the cases, the proceedings were commenced under Section 13-A(1) of the Bombay Rent Act by the member of Armed Forces who was also one of the co-owners of the property. In para 22 of the Judgment in Jagasia Kanta Udharam Jagasia, Their Lordships of the Supreme Court observed as follows :-

"...We do not think it is necessary to reiterate that a co-owner, in the absence of any objection from other co-owners, can maintain a petition for eviction against a tenant as it was not seriously disputed before us. We find that the question does not strictly arise for consideration on the facts of this case as the legal heirs had settled among themselves regarding allotment of distinct and different shares to each one of them, which was accepted by the Housing Society. We have also seen that the tenant was paying rents to the appellant."

The legal position stated by the Supreme Court is aptly applicable to the facts of the present case. In this case, not only the applicant examined himself, but he also examined his brother who was one of the co-owners and who was collecting rent on behalf of the applicant. From their evidence, it appears that even though no partition had taken place strictly, the brothers of the applicant did not claim any right, title or interest in the suit premises and they had admitted that the applicant alone was the owner of the house and on his behalf, the rent was being collected from the tenants by Ramesh. In such circumstances, I find that the Competent Authority has committed error in holding that merely because partition had not taken place, the applicant could not maintain the application. Assuming that partition was not effected and his brothers continued to be the co-owners having interest in the property, the applicant could maintain the application if they did not seriously dispute the claim of the applicant alone to have eviction and possession of the house for himself and his family members.

9. The Competent Authority has observed that in view of Section 31-J of the Bombay Rent Act, the applicant alone cannot obtain possession of the premises. In fact, this observation is also totally erroneous. If the decree is passed and the respondent is evicted but the applicant does not occupy the premises or re-lets either the whole or any part of the premises within two years, the Competent Authority can pass the appropriate order under Section 31-J on the application of the tenant for restoration of possession to him. I find no difficulty in passing an order under Section 13-A(1) in favour of the applicant because of this provision. Therefore, taking into consideration the facts and circumstances, the applicant was entitled to get order of eviction and possession under Section 13-A(1) of the Bombay Rent Act.

10. For the aforesaid reasons, the Revision Application is hereby allowed. The impugned order is set aside and the Application No.19/88 before the Competent Authority is hereby allowed. The respondent shall be evicted from the suit premises and the applicant shall be put in possession of the same.

Revision Application allowed