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Shantabai Hari Chavhan Vs. Satyawatibai Alias Chandrabai Raghunath Acharekar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 1374 of 1980
Judge
Reported in1983(1)BomCR139
ActsPresidency Small Cause Courts Act, 1882 - Sections 41
AppellantShantabai Hari Chavhan
RespondentSatyawatibai Alias Chandrabai Raghunath Acharekar
Appellant AdvocateK.J. Abhyankar, Adv.
Respondent AdvocateV.V. Divakar, Adv.
Excerpt:
- - the defence of the present was that the respondent was not the exclusive tenant in respect of the suit premises but that both the petitioner as well as the respondent were the joint tenants of the same......respondent. in other words the contention was that she was given leave and licence to stay in the suit premises along with the respondent. it was further contended that the licence was revoked and since the petitioner refused to vacate inspite of revocation of the license, the suit for recovery of possession was filed under said section 41 of the act.the defence of the present was that the respondent was not the exclusive tenant in respect of the suit premises but that both the petitioner as well as the respondent were the joint tenants of the same. the contention therefore, was that no question of revocation of licence would arise and hence no question of the petitioner vacating the suit premises at the instance of the respondent would arise.3. it will be thus seen that before the.....
Judgment:

Sharad Manohar, J.

1. This petition is entirely devoid of any merits.

2. This petition is filed by the original opponent against whom an application under section 41 of the Presidency Small Causes Act, 1882 was filed by the respondent. The contention of the respondent was that in the suit premises which consist of a mere one room in a chawl and which are held by the respondent as a tenant, the present petitioner was allowed to stay along with the respondent. In other words the contention was that she was given leave and licence to stay in the suit premises along with the respondent. It was further contended that the licence was revoked and since the petitioner refused to vacate inspite of revocation of the license, the suit for recovery of possession was filed under said section 41 of the Act.

The defence of the present was that the respondent was not the exclusive tenant in respect of the suit premises but that both the petitioner as well as the respondent were the joint tenants of the same. The contention therefore, was that no question of revocation of licence would arise and hence no question of the petitioner vacating the suit premises at the instance of the respondent would arise.

3. It will be thus seen that before the Court below the right of the respondent to be in possession of the suit premises was never in dispute. The only question was that as to whether the present petitioner had proved her co-tenancy or joint tenancy with the respondent in respect of the suit premises. On this question the parties led evidence and upon examination of the said evidence the trial Court found that the premises were taken on lease by the respondent from the owner of the chawl as early as in the year 1942. The Court found that the petitioner had started residing in the suit premises suit some time after the premises were taken by the respondent on rent from the owner of the chawl. These circumstances read in conjunction with the other circumstances on record showing that there never existed any direct relationship of landlord and tenant between the petitioner and the owner of the premises at all, the learned Judge came to the conclusion that the petitioner's plea relating to tenancy rights in respect of the suit premises was wholly unacceptable. Since no other defence was available for the petitioner the Court passed an eviction order against the present petitioner.

4. In this petition Mr. Abhyanker the learned Advocate appearing for the petitioner tried to invite my attention to the fact that the petitioner had been residing in the suit premises almost from the year 1942. He, therefore contended that in these circumstances an inference could be drawn that the petitioner was a tenant jointly with the respondent of the premises. I am afraid this contention cannot be accepted. If the suit premises consisted of two rooms and if the petitioner resided in the suit premises for a long time having got in her exclusive possession one of the rooms an inference could have been legitimately raised that the she was a sub tenant in respect of the suit room in her exclusive possession. An inference of tenancy by the sub tenant can be legitimately raised in the context of such a state of facts. But it is inconceivable that another person can become a tenant of the original landlord along with the original tenant after the lapse of appreciable time. Mr. Abhyankar was not able to satisfy me from the evidence on record that the present petitioner came to reside in the suit premises simultaneously with the respondent. He was not able to challenge the finding that the petitioner came to reside in the suit premises along with her own son a few months after premises were taken on rent by the respondent from landlord. The relationship of landlord and tenant is not only the relationship of property; it is also personal relationship. No person can be foisted upon a landlord as tenant and there cannot arise a tenancy between a landlord and tenant unless it postulates an agreement between a landlord and tenant of tenancy between two definite persons. It may be that in a given case a person may be a benamidar for some other person and benamidar may take the premises on lease from the landlord. It do not wish to experts any opinion in this question as to whether a benami transaction would exist in the case of a transaction of tenancy. But even assuming that such benami transaction can be conceived of, in the first place it is not the case of the present petitioner that the respondent was her benami nor is it her case that the respondent had taken the suit premises on rent form the landlord for himself and as benamidar of the petitioner. In fact the case of benami transaction does not seem to have been made out at all. Assuming that the case could be made out or is deemed to have been made out, the fact that the petitioner came to reside in the suit premises a few months after the tenancy started rules out any such inference of benami transaction. Moreover, as inference of petitioner being made a tenant by virtue of a benami transaction would result in an anamolous situations viz. that the landlord of the chawl will be deemed to have taken a tenant with whom he never had any agreement of tenancy and of whom probably he was never even aware. It is, therefore, inconceivable that in the context of the facts established on record in this case an inference of petitioner's co-tenancy in respect of the suit premises together with the tenancy of the respondent could be conceived of. The ultimate conclusion arrived at by the Lower Court, therefore, cannot be found fault with.

5. The petitioner, therefore, fails. The rule earlier issued stands discharged.

However, in the circumstances of the case there shall be no order as to costs.


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