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Ramkali Rambharaose Katiyar (Smt.) and ors. Vs. Ramdulare Shivprasad Katiyar by His Heirs - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 66 of 1978
Judge
Reported in1985(1)BomCR709
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 5(4) and 5(11); Code of Civil Procedure (CPC) , 1908 - Sections 100 - Order 6, Rule 1; ;Evidence Act, 1872 - Sections 3
AppellantRamkali Rambharaose Katiyar (Smt.) and ors.
RespondentRamdulare Shivprasad Katiyar by His Heirs
Appellant AdvocateH.A. Solkar and ;M.H. Solkar, Advs.
Respondent AdvocateA.C. Agarwal and ;Anita Agarwal, Adv.
DispositionAppeal allowed
Excerpt:
tenancy - possession - sections 5 (4) and 5 (11) of bombay rents, hotel and lodging house rates control act, 1947 and section 100 and rule 1 order 6 of code of civil procedure, 1908 - whether defendant has rights over residential premises - defendant had not set up any plea of joint tenancy in respect to residential premises - landlord had not been examined to lead evidence in such matter - no evidence to prove that tenancy had been transferred in favour of defendant - residential premises were standing in name of appellants - until contrary proved suit premises presumed to be in name of appellant and his legal heirs - defendant can have no right over said premises - defendant had not pleaded ouster in context of plea of limitation - held, defendant failed to establish his right in.....sharad manohar, j.1. though this is a second appeal filed by the plaintiff against the concurrent decrees passed by both the courts below, the appeal has got to be allowed firstly because the main question that fell for determination of the court has not been addressed to by either of them and secondly because the view taken by both the courts below is unsupportable in law.2. normally, facts can be and are stated in a judgement in second appeal on the basis of the facts that are either found or admitted. but in the instant case, many of the facts have been properly adjudicated upon at all and there is a dispute about practically every factual position. hence, i will set out the facts by referring, mostly to the contentions of each of the parties, the plaintiffs and the defendant, in their.....
Judgment:

Sharad Manohar, J.

1. Though this is a second appeal filed by the plaintiff against the concurrent decrees passed by both the courts below, the appeal has got to be allowed firstly because the main question that fell for determination of the Court has not been addressed to by either of them and secondly because the view taken by both the courts below is unsupportable in law.

2. Normally, facts can be and are stated in a judgement in Second Appeal on the basis of the facts that are either found or admitted. But in the instant case, many of the facts have been properly adjudicated upon at all and there is a dispute about practically every factual position. Hence, I will set out the facts by referring, mostly to the contentions of each of the parties, the plaintiffs and the defendant, in their pleadings.

(a) The four appellants, who are the original plaintiffs (who will be referred to hereinafter as the 'plaintiffs') are the heirs of one Rambharose Katiyar. Plaintiff No. 1 is the widow and plaintiff Nos. 2 to 4 are the sons of said Rambharose. Admittedly, Rambharose and his family belonged to Sikandarpur, Taluka Shahabad District Hardol in Uttar Pradesh. Rambharose came to Kalyan in or about the year 1938. The fact that he came in the year 1938 is not in dispute. There is some dispute on the question as to whether even the respondent (who will be referred to hereinafter as the 'defendant') had come along with him to Kalyan. After coming to Kalyan, Rambharose started a Pan Beedi Shop in a Gala in House No. 61 of Lane No. 51. This shop was started by him initially in partnership with one Tikaram. But so far as the premises were concerned, the premises were taken on rent in the name of Rambharose only. Tikaram has never claimed any right in the tenancy in respect of the said Gala in House No. 61.

(b) Thereafter some time in the year 1942 or so, Tikaram withdrew himself from the partnership and the contention of the plaintiffs has been that from the year 1942 onwards Rambharose had been carrying on the Pan Beedi business in the said shop as the sole proprietor of the same and that the said position continued even till Rambharose left Kalyan in the year 1955. The plaintiff's case further is that some time after starting the Pan Beedi Shop in House No. 61, Lane No. 51, Rambharose got another residential room. Room No. 31, in another House No. 53 in the same Lane No. 51. The landlord of House No. 61 was one Ganpat Kumbhar, whereas the landlord of the residential premises in House No. 53 was one Yashwant Shankarrao Zunjarrao at the time of the commencement of the tenant. There is no dispute that the present landlord of the said room. Room No. 33, is one Ghanshyan Dashrath Zunjarrao. The fact that Rambharose has been conducting the shop in said House No. 61 and that he was residing in said Room No. 31 in House No. 53 and that this position continued at least till the year 1955 is not in dispute; the only bone of contention has been as to whether even the defendant was carrying on the business in said Pan Beedi shop along with Rambharose and as to whether he was also residing in said Room No. 31 along with him.

(c) The plaintiff's case is that from the year 1942 till about February 1955, Rambharose had been personally looking after the management of the shop in House No. 61. Thereafter he got afflicted by cancer. He, therefore, left for the native place in U.P. Even his wife and children went along with him. Rambharose died at Sikandarpur in U.P. on 14-5-1955.

The plaintiff's case further is that a few years after Rambharose came to Kalyan the defendant who is his brother came there with a view to find some occupation. He started doing his own business in Kalyan but used to live with Rambharose and sometimes used to look even after Rambharose's shop. When Rambharose went to his native place along with his family, the defendant was requested to look after his business. After his death plaintiff No. 1 requested to look after his business because she herself was an illiterate lady and the children were very young and minors. She also allowed the defendant to use the tenanted premises. One of the contentions of the plaintiff in the plaint is that the defendant had been looking after the property as the agent of Rambharose in the first instances and after his death of the plaintiffs. The grievance of the plaintiff is that finding that the plaintiffs were ignorant, uneducated and helpless and were unable to look after their business and property, the defendant started claiming the business and property to be his own and he got entries made in the Municipal and other Government Records showing himself to be the owner of the same. Likewise, he misled the landlord and got the rent receipts transferred to his name.

(d) According to the plaintiff, they came to Kalyan in the year 1965. Plaintiff No. 2 got a job there and started making enquiries when he found that the defendant had been asserting his title to the shop premises and the residential premises. In view of their relations with the defendant, the plaintiffs tried to settle the matter amicably. But when the defendant was found to be adamant, a Notice dated 14-1-1969 was given by the plaintiff asking for possession of the shop premises and the residential premises and the Pan Beedi business.

In para 6 of the plaint, it was contended by the plaintiffs that the defendant was the plaintiff's agent and that his Vahivat and possession of the shop was in that capacity.

In para 7 of the plaint, it is contended, in the alternative, that the defendant was in possession of the shop premises and the residential premises as a Trustee of the plaintiffs. They contended that the trusteeship was put to an end and hence they were entitled to possession of the premises as the real beneficiaries.

(e) The prayer clause is somewhat significant. In para (a) of the plaint, a declaration is prayed for that the defendant is the plaintiffs' agent. It is also prayed, alternatively that the defendant be declared to be the trustee of the plaintiffs in the eyes of law and that he was looking after the plaintiff's property in that capacity.

In prayer (b), it is prayed that possession of the shop premises and the residential premises may be given to the plaintiffs from the defendant and that it may be declared that the plaintiff are the tenants in respect of the said premises.

In prayer (c), it is prayed that accounts in respect of the business of the shop and all other accounts may be ordered to be given by the defendant to the plaintiffs.

3. As against this claim of the plaintiffs, the defendant's contention in the written statement consisted of general denial of the plaintiff's claim and the setting up of some positive case of his own. The positive case set-up by the defendant was that Rambharose and the defendant were brothers and that they were residing in the Chawl belonging to Zunjarrao jointly from the very beginning. Contention was that both of them came from their native place together and were carrying on the business of Pan Beedi shop together in partnership with one Tikaram. The categorical plea of the defendant was that the said shop was of the joint ownership of Rambharose and the defendant and that it had been acquired by them from Tikaram for both of them. The defendant contended that Rambharose being the elder brother, naturally his name alone was shown in the Government Records, but that all the same the business belonged to both of them and they were carrying on the same jointly and that were also staying together.

In view of this positive case made by the defendant, the contrary case set up by the plaintiff was denied by the defendant. The plea of agency or trusteeship was denied.

It may be, however, mentioned here that significantly enough though the defendant has laid claim to the business in the shop in House No. 61 and he has incidentally claimed also interest in the tenancy right in respect of the same by stating that so far as the Pan Beedi Shop was concerned it was jointly the property of Rambharose and the defendant, no such plea is raised by the defendant so far as the residential premises in Room No. 31 are concerned. No reason is given by the defendant for contending as to why the rent receipt even in respect of Room No. 31 in House No. 53 was in the name of the plaintiff. It is stated by the defendant that he and Rambharose were staying together, but it is nowhere contended by the defendant in the written statement that the defendant had any kind of interest in the residential premises in Room No. 31 in House No. 53. This aspect of the pleading has got bearing upon the question as to whether the lower courts has properly addressed themselves to the real question which fell for their determination.

4. These were, therefore, the pleadings and on these pleadings issues were framed by the learned trial Judge.

Issue No. 1 was as to whether the plaintiff proved that defendant was in possession of residential tenement and was conducting the business of the Pan Shop as the agent or trustee of the plaintiff since 14th May.

Issue No. 2 was as to whether the plaintiff was entitled to possession of the said premises.

Issue No. 3 was as to whether the plaintiff was entitled to accounts as prayed for by him in the plaint.

An additional issue was subsequently framed on the question as to whether the suit was barred by limitation as contended in para 5 of the written statement.

On these issues, evidence was led by the parties and after examination of the said evidence the finding record by the trial Court was that the plaintiff had failed to prove that the defendant was in possession of the premises in question as the plaintiff's agent trustee.

As an answer to Issue No. 2 the learned Judge held that the plaintiff was not entitled to possession of the premises.

Issue No. 3 as regards the plaintiffs' claim for accounts was decided against the plaintiff.

On the question of limitation, however, a finding was recorded by the learned Judge that the suit was not barred by limitation. However, in view of the finding on the first issue, the plaintiffs' suit was dismissed by the trial Court.

5. In appeal, the learned Asstt. Judge was of the view that the points for his consideration were only the following :

'1. Whether the appellants-plaintiffs prove that respondent-defendant is in possession of residential tenement bearing House No. 53 belonging to the Zunjarrao as agent or trustee of the plaintiff since 14th May, 1955 ?

2. Whether the appellants-plaintiffs prove that the defendant is in management of the business of pan shop in the same capacity on behalf of the plaintiffs since 14th May, 1955 ?

3. Whether suit is barred by limitation ?

4. Whether the appellants-plaintiffs are entitled to possession and also the accounts of the business ?'

The learned Asstt. Judge examined the evidence in his own way and came to the conclusion that the plaintiffs had failed to prove that the defendant was in possession of the residential premises as the plaintiffs' agent or that he was in management of the business of the Pan Shop in the capacity of the plaintiffs' agent or trustee. The learned Judge also held that the plaintiffs' suit was barred by limitation and that the plaintiffs were not entitled either to the possession of the premises or for the accounts of the business.

In this view of the conclusion arrived at by him, the plaintiffs' appeal was dismissed by the learned Assistant Judge.

6. After the appeal was argued before me at length, some positions were established beyond controversy. The first position was that although the defendant had made a tall claim in the written statement that the business carried on by Rambharose was the joint business belonging to himself and the defendant, practically no evidence was led by him to prove his interest either in the business or in the premises at the time when Rambharose was residing at Kalyan. I have stated that practically no evidence was led by him because certain circumstances which have been brought on record have been sought to be construed by Mr. Agarwal, the learned Advocate for defendant, before me as evidence of the joint interest of Rambharose and the defendant in the business. I will presently refer to the said contention. But at this stage itself I may mention that such a contention was not raised in the lower Court. In the lower Court, the consistent contention was the one mentioned in the written statement namely that the business was the joint business of Rambharose and the defendant. So far as the tenancy was concerned there was not even one murmur in the written statement or even in the evidence that the tenancy was the joint tenancy belonging to both of them and that Rambharose was a benamider for both of them. So far as the premises in House No. 61 are concerned, by stretching the averments made in the written statement it could be perhaps contended at the most that a claim of joint tenancy in respect of the business premises in House No. 61 was made by the defendant. Whether that claim is proved or not is a different question. But the fact that it was made could be perhaps inferred by some stretch of logic, because it is contended in the written statement that because Rambharose was the elder brother his name was shown as the owner of the business in all the Government records. It is not stated that Rambharose's name was shown because he was the elder brother. But such a contention could at the most be deduced from the earlier statement. But so far as the residential premises were concerned, not even any contention of such a character was made in the written statement.

This was the position of the pleadings. But when one came to the evidence, the position was still worse. Not one statement was made by the defendant in his evidence as to why the tenancy in respect of the residential premises (as also in respect of the shop premises) was taken right from the beginning in the name of Rambharose only. It would, thus, follow that at least so far as the residential premises in Room No. 31 were concerned, the defendant had not even feigned to prove his title to the same. Apart from the fact that the defendant had managed to get the rent receipts of the shop premises transferred to his name, by a receipt dated 12-1-1958, there is no evidence on record whatsoever to show that he was having interest at any time in either of the premises. So far as the residential premises were concerned it is not even contended that the present rent bills stand in the defendant's name. In any event, it is not brought on record as to on which date the rent receipt of the residential premises in Room No. 31 was transferred in the name of defendant, although it is admitted fact that at least from the year 1942 the rent receipt in respect of the residential premises had been in the exclusive name of Rambharose.

7. The other position that came out in evidence was that when Rambharose left for his native place in the year 1955, the landlord of the shop premises in House No. 61 owed him a sum of about Rs. 2400/-. This money was owed in the year 1950. The rent of the premises was about Rs. 25/- per month. The amount was to be repaid by the landlord to Rambharose by adjusting the same towards his rent. This meant that the he had to repay and had repaid Rs. 300/- every year to Rambharose. It has come on record undisputedly that it was only after the entire amount stood repaid through rent that the landlord changed the receipt from the name of Rambharose to the name of the defendant. This means that even though Rambharose had left for his native place in February 1955 and though he died in May 1955 he or his successors went on paying rent at least for 3 years more. It has come on record that on 12-1-1958, for the first time, a rent receipt has been executed by the landlord in favour of the present defendant. The landlord has been examined and he stated that as per the instructions from Rambharose he had been adjusting the rent towards the money he owed to Rambharose. This fact clearly means that the landlord was recognising the tenancy of Rambharose and no one else till the year 1958. What he had stated tallies exactly with the accounting part of the episode also. He was repaying Rs. 300/- per year. The amount was borrowed in the year 1950. Naturally the amount was fully repaid by 1958 and that is the reason why on 12-1-1958 he executed the rent receipt in a different manner and till that time he continued to recognise Rambharose as his tenant. Therefore, the position that clearly emerges is that till the year 1958, or to be precise, till 12-1-1958. Rambharose or his heirs were recognised by the landlord to be his tenants in respect of the shop premises.

There is yet another clinching circumstance belying the case of the defendant. Though it is an admitted fact that Rambharose was the person in whose name the present receipt in respect of the shop premises was standing right from the year 1938, still the year 1951. When the sum of Rs. 3000/- was advanced by Rambharose to the landlord, a Rent Note came to be executed by him in respect of the same premises. It was executed on 1-1-1952 and the period of it was of seven years from 1952. The period expired by the end of 1959. It is, thus, clear that even by virtue of the Rent Note the tenancy of Rambharose had to continue till the year 1959 under the general law. By virtue of the Rent Act, however, it would continue until it was validly terminated or was relinquished. It is nobody's case that either of the eventualities took place.

Question then arises is as to by what law or logic the defendant started being a tenant in respect of the shop premises from 12-1-1958. If it was open for the landlord to transfer the rent receipt from the name of Rambharose to the name of the defendant without the consent of Rambharose or his heirs, the transfer of the rent receipts in the name of the defendant would certainly have clothed him with the tenancy rights in respect of the shop premises. But that is not the law so far as this state is concerned. Under the Bombay Rent Act, a contractual tenancy continues even after the death of the tenant and the heirs become the contractual tenants of the landlord. The landlord has no power of right to give the premises on rent to anybody else without the consent of the tenant or his heirs. The position would be different if the original tenant has either relinguished or abandoned the tendency in respect of the shop premises. But as seen above, that is not the position here. Here, the position is that till the year 1958 Rambharose was paying rent in respect of the suit premises although neither he nor his family was physically present in Kalyan and were staying far away there in U.P. It may be that if a tenant does not occupy the premises for a period exceeding 6 months, the landlord would get a right to file a suit against him for recovery of possession of the premises; but the fact that he is allowed to recover the possession of the suit premises does not mean that he has already recovered such possession. No valid title of a tenant can be passed by the landlord to a fresh tenant merely because the original tenant has not been residing in the suit premises.

Probably this was the precise reason why no case of relinquishment or abandonment by the plaintiffs has been even made out or suggested by the defendant in the written statement. But if this is the position, then it has got to be held that the defendant has no right in respect of the shop premises, because the tenancy right in respect of the shop premises, continued with the plaintiff in spite of the fact that they were not in occupation of the same for a considerable period after 1955.

8. When we turn for a question of residential premises, the position is even worse. The defendant has not as much as feigned to set-up any plea of joint tenancy in respect of the residential premises. The landlord of the premises Zunjarrao has not been examined. No evidence is lead to show that the tenancy in respect of those premises has been transferred to the name of the defendant. Admittedly the residential premises were standing in the name of Rambharose till the year 1955. Until the contrary is proved, it will be presumed that Rambharose or his heirs continue to be the tenants in respect of the residential premises and it will be also presumed that the Rent Bill continues to stand in their name. If this is the position, then the defendant can have no right to the same. A plea of limitation might perhaps, have been helpful to the defendant, provided he has pleaded ouster. The position was that Rambharose and the defendant were the brothers. A position of ouster cannot, therefore, be lightly Inferred, there shall have to be a specific plea and evidence for providing the ouster. In the instant case, one finds neither.

In this view of matter, it is difficult to see as to how the defendant can be said to have established his right in respect of the residential premises in Room No. 31.

9. This brings me to the question of limitation I may state here that the question of limitation has got to be considered. In the instant case at two levels :

(A) On the question of accounts in respect of the business; and

(B) In respect of possession of the premises.

It is no doubt the plaintiffs contention that the business of Rambharose continued even though he had left for his native place. There is satisfactory evidence on record, as discussed above, to show that Rambharose had not given up his interest in the premises. Once it is established that the business belonged exclusively to Rambharose and once it is found that the defendant's plea that Rambharose had wound up the business before leaving for the native place is not proved, it will have to be assumed that the business continued and that the defendant was in-charge of the said business of Rambharose. This Inference is to a quite some extent supported by the fact that even though Rambharose left for his native place along with his family, the amount which the landlord owed to him was allowed by Rambharose to be recovered by the defendant. The defendant was allowed to carry on the business, but the rent for the premises continued to be paid by Rambharose till the year 1958 as explained above. This fact thus indicates that Rambharose had his Intention to retain his interest in the premises.

But, all the same, the question remains as to whether the plaintiff is entitled to file a suit for accounts in respect of the business after the period of nearly 14 years. The starting point of limitation, so far as the suit for accounts is concerned would be 1955 itself. The suit filed nearly after 14 years would, therefore, be barred by limitation at least in respect of the years which are beyond 3 years before the data of the suit.

10. Mr. Solkar for the plaintiffs contended that in the instant case the entire evidence on the record shows :

(a) that the business of Pan Beedi Shop in House No. 61 belonged to Rambharose exclusively; and

(b) that it was only after the death of Rambharose that licences in respect of the business were transferred from Rambharose's name to defendant Ramdulare's name by the Municipality.

On the basis of this he wants to contend that the same business which belonged to Rambharose continued even after his death and what the defendant was carrying on was the same business which originally belonged to Rambharose. He, therefore, contends that not only the tenancy right in respect of the shop premises in House No. 61 but even the business in the said premises continued to belong to Rambharose's heirs. In this connection, he pointed out that till Rambharose left for his native place, defendant Ramdulare was in fact caring on business in partnership with one Tikaram. But that was entirely a different business at entirely different premises. In this connection, he produced a licence taken by the deferent in respect of the business which he carried on with one Tikaram. That document is produced at Exhibit 45. It was received in pursuance of an application dated 1-3-1951 made by defendant Ramdulare. It was nobody's case that defendant Ramdulare was carrying on business in the suit premises in House No. 61 only with Tikaram. This means that this licence (Exhibit 45) is in respect of business carried on by the present defendant elsewhere with Tikaram. It will be, thus, seen that there is evidence to show that till the year 1955 the defendant was carrying on business elsewhere and he started occupying the suit shop only after Ramdulare left for his native place.

From all this, Mr. Solkar wants to contend that the business continued to be carried on by defendant Ramdulare, but that the business belonged to Rambharose and after his death to his heirs. Argument was that if Ramdulare carried on the business belonging to the plaintiff, he must give accounts in respect of the same.

11. Mr. Solkar contended that a suit for accounts would be barred for the period beyond 3 years before the date of the suit, but the suit for accounts atleast for the period of 3 years immediately before the date of the suit would be within limitation. He thus assailed the finding of both the courts below even on his ground. I have my own doubt as to whether this contention is correct. Mr. Solkar contended that the suit for accounts was in nature of the suit for recovery of rent. No doubt just as landlord can file a suit for rent, but only for the period within limitation, likewise the suit for accounts can be filed for the years which are within limitation provided, of course, the accountability continues. Mr. Solkar may be right on this point. But I may state here that the question is not without some difficulty. However, I need not examine this question further because Mr. Solkar made a statement before the Court that he has advised his client not to press his claim for accounts and that he is giving up his claim for accounts in respect of the business.

12. The question whether the suit for accounts is within limitation or not therefore, need not be considered by this court. But the question as regards the limitation for suit for possession stands on an entirely different footing. So far as the shop premises are concerned, the plaintiffs continued to be the tenants, even according to the landlord, till the year 1958. Mr. Solkar invited my attention to the rent note which is produced on record which shows that on 1-1-1952 the landlord had executed a registered rent note in favour of the plaintiff leasing the shop premises to Rambharose for a period of 7 years from 1-1-1952. Mr. Solkar took me through the evidence of the landlord and pointed out that this rent note must have been executed by the landlord, because he owed a sum of Rs. 2400/- to Rambharose and the amount of the loan was to be repaid from the monthly rent payable by Rambharose to the landlord at the rate of Rs. 25/- per month. The rent note clearly shows that the amount of rent was Rs. 25/-. If the rent note is taken into account. It will be impossible to hold that Rambharose or his successors did not continue to be the tenants even after the death of Rambharose. The transfer of rent receipt by the landlord in favour of Ramdulare on 12-1-1958, is therefore clearly illegal. The landlord has stated in the evidence that he did so at the instance of Tikaram. It will be noticed that Tikaram was admittedly the uncle of Rambharose and Ramdulare. It appears that he was for some time the partner of the defendant in some other business. It is obvious that both of them colluded with each other and have persuaded the landlord to transfer the rent receipt in favour of the defendant. In this connection, plaintiff No. 1 has stated in her evidence that in the dispute with her brother-in -law Ramdulare, she had wanted Tikaram to intervene, but that Tikaram refused to intervene and advised her that she should take recourse to the suit and that he was unable to intervene.

It, is, thus clear that the rent receipt was transferred by the landlord of the premises in favour of the defendant Ramdulare without the consent or even without the knowledge of the plaintiffs. The said act on his part cannot be said to be binding upon the plaintiff at all. Unless therefore, there was any difficulty by virtue of law of limitation, the plaintiff would always be entitled to contend that the tenancy continued in their favour and as tenants they are entitled to get possession of the suit premises. This could be the position not only of the shop premises but also of the residential premises.

The only question therefore, requires to be decided is as to whether there is any bar against the defendant arising out of the Law of limitation in getting possession of the suit premises, their right to which stands established. The present suit is not against the landlord. The present suit is against the defendant who has unlawfully occupied the premises. It may be that the plaintiffs are not able to show that defendant was appointed as agent of the plaintiffs so far as the business was concerned. But there is no question of agency so far as the premises are concerned.

The theory of trusteeship, however is quite a valid and legitimate theory. If Rambharose was the owner of the tenancy rights and if after his death the ignorant plaintiff No. 1 and her ignorant minor children allowed the premises to remain with the defendant, an inference of constructive trust can be readily drawn, I fail to see as to why the lower courts were not inclined to raise such an inference of constructive trust. If there is a constructive trust, the period of limitation against the trustee would start when the trustee denied the title of the beneficiaries. In any event, in the instant case the plaintiff's title cannot be said to have been denied by the defendant till 12-1-1958 on which he got the rent receipt transferred in his name. Till that date he was recognising the plaintiff's title when he took the rent receipt from Rambharose and when he allowed Rambharose and his successors to pay rent in the manner mentioned above. So far as the shop premises are concerned, at the earliest, the period of limitation would start from 12-1-1958. The suit filed within 12 years thereafter would be perfect within limitation.

13. So far as the residential premises are concerned, the question of limitation probably might not even arise. It was common ground before me that all the tenements in house No. 53 including the residential Room No. 33, have been sold by owner of chawl. In question to the tenants/occupants Mr. Agrawal, the learned Advocate for the defendant, pointed out to me that the defendant has paid a sum of Rs. 4000/- to the landlord and had purchased sold Room No. 33, from him in his capacity as the tenant of the premises. If that is the position, then it may be stated that he asserted his title against the heirs of Rambharose on the date when he purchased those premises in his individual capacity. The limitation would start from the date when he actually purchased the promises from the landlord on the basis of his alleged tenancy. No evidence was brought to my notice on the strength of which it could be said that the tenancy in respect of the said residential premises in Room No. 33 was transferred by the landlord Zunjarrao in the name of the defendants at any prier time. Admittedly, the residential premises have been purchased by the defendants just a few years ago, in any event admittedly during the tendency of the suit. There is therefore, no question of bar of limitation so far as the residential premises are concerned. The plaintiffs are, therefore, entitled to recover possession of the said residential room as well.

However, I make it clear that since the defendants has purchased the said room from the original tenant, he will be entitled to be reimbursed of the purchased money that he has paid to the owner of the building. A near relationship of constructive trust arises in this case. The defendants will no doubt be a constructive trustee for the plaintiff, because it was on the basis of the plaintiff tenancy that the defendant succeeded in purchasing the room from the original owner. However, before taking possession of the room in question, the plaintiff's shall have to reimburse the defendants of the amount of the purchase price paid by the defendant to the owner of the building. The wife of the original defendants Ramdulare, Rajarani, has stated in her evidence that a sum of Rs. 4000/- was paid by her to the landlord for the purpose of purchase of the said room. The plaintiff shall have to pay a sum of Rs. 4000/- to the defendant before taking possession of the said residential premises. The plaintiff shall deposit the said amount of Rs. 4000/- in the Court before executing the decree for possession of the said residential premises.

14. The appeal is, therefore, allowed. The decree passed by the trail Court and confirmed by the Appeal Court is hereby set aside and the plaintiff suit for possession of the shop premises as well as of the residential premises is hereby decreed. The plaintiff suit for accounts is, however, dismissed. The plaintiff shall be entitled to proportionate cost throughout.


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