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Abdul Jabbar and ors. Vs. Jumankhan S/O. Mohamed Hassan Khan - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 990 of 1979
Judge
Reported in1985(2)BomCR74
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 5(4A); Code of Civil Procedure (CPC) , 1908 - Order 14, Rule 7
AppellantAbdul Jabbar and ors.
RespondentJumankhan S/O. Mohamed Hassan Khan
Appellant AdvocateA.A. Sayed, Adv.
Respondent AdvocateV.O. Meghani, Adv.
Excerpt:
property - possession - section 5 (4a) of bombay rents, hotel and lodging house rates control act, 1947 and order 14 rule 7 of code of civil procedure, 1908 - a was tenant in respect of suit room situated in 'chawl' - room used by many persons for their residence - plaintiff was one of residents of suit room along with a - suit filed by plaintiff for removal of defendants from suit premises occupied jointly for considerable period - defendants did not have any right in suit premises - open for landlord to give tenancy to any person - fact that plaintiff was one of occupant was admitted by defendant - landlord created tenancy right in favour of plaintiff - tenancy held to be valid. - - despite this order, the defendants failed to come out with their case in this behalf and chose to.....sharad manohar, j.1. this appeal has been filed by the original defendants. suit was filed against them by the respondent (who will be referred to hereinafter as 'the plaintiff') in substance for removal of the defendants from the suit premises, meaning thereby for recovery of possession of the suit premises which they have been occupying jointly with the plaintiff for a considerable period. the trial court found that they have next to no defence to the suit and hence the suit has been decreed by the court. for the reasons which will be presently stated, i have found it impossible to find fault with its judgment in general and the conclusion arrived at be the trial court in particular, though i do feel sorry for the appellants.2. the facts are fully and carefully stated in the judgment of.....
Judgment:

Sharad Manohar, J.

1. This appeal has been filed by the original defendants. Suit was filed against them by the respondent (who will be referred to hereinafter as 'the plaintiff') in substance for removal of the defendants from the suit premises, meaning thereby for recovery of possession of the suit premises which they have been occupying jointly with the plaintiff for a considerable period. The trial Court found that they have next to no defence to the suit and hence the suit has been decreed by the Court. For the reasons which will be presently stated, I have found it impossible to find fault with its judgment in general and the conclusion arrived at be the trial Court in particular, though I do feel sorry for the appellants.

2. The facts are fully and carefully stated in the judgment of the trial Court and since I have found that no fault can be found with the said Judgment, it is un-necessary to state the facts elaborately once again. For the sake of discussing the points that arise, only the following facts need be stated briefly :-

The suit premises are situate at Kassim Haji Chawl at Gol-Darwaza, Duncan Road, Bombay. It is just one room in the said Chawl and the number of room is 140. Admittedly, one Rehamatali (who is described also at some places as Rehmatkhan) was the tenant in respect of the same. This chawl together with some other chawls belongs to 4 brothers. All these chawls together will be referred to hereafter as the 'property'. This property was purchased by one Gulam Hussein for and in the name of his 4 sons. The name of one of the son is Saifuddin. I will have occasion to make reference to this name. As is the usual practice in this city for the teeming millions, although the room is taken on rent by one person it is used for residence by a large number of persons. In this city it is a matter of common knowledge that men working in the mills and factories use such rooms just for their sleeping purpose. They keep their bedding there; their families live generally in the native place and the room is used for the sake of a few hours sojourn at it were, when the shift duties are over. It is not seriously disputed in this case that though Rehmatali was tenant in respect of the said Room No. 140 (Which will be hereafter referred to as the 'suit room') many persons were using the said room by way of their residence in the same manner as mentioned above. It is not disputed that the plaintiff was one of such residents of the suit room when Rehmatali was occupying the same as a tenant.

3. Now I come to the case of the respective parties. The plaintiff filed the suit for recovery of possession of the suit room from the 14 defendants with the contention that he was the tenant in respect of the said room and that the 14 defendants were his licensees in the said room. He contended that he had revoked their licence orally about 4 months before the date of the suit and had called upon them to vacate the premises and that since they had refused to vacate and had in fact filed complaints against him at the police station, he was filing the suit for their ejectment from this suit room. In the plaint itself there was no reference made to the position that Rehmatali was initially the tenant of the suit premises and that his tenancy came to an end by virtue of some process and that thereafter the tenancy was created in favour of the plaintiff by the landlords of the premises. The plaintiff's case simpliciter was that he was a tenant of the suit premises on the date of the suit, that the defendants had no right, title and interest in the same and the licence that was created in their favour by the plaintiff has been revoked with the result that the plaintiff became entitled to eject them from the suit premises.

4. The written statement was filed only by defendants 1 to 6 and 9 to 13. At the very outset in their written statement they denied that the plaintiff was a tenant in respect of the said room. Their contention was that they have been in lawful possession of the suit room . However, in the written statement they never mentioned as to from which date they have been in possession of the same. In para 3 of the written statement, they contended that they have been occupying the suit premises in their own independent right and not as the licensees of the plaintiff. In the written statement , as it was originally filed, there is no indication to be found as to by what right the defendants were in possession of this suit room. My attention was however, invited to three orders passed by the Court, firstly on 8th February, 1977, thereafter on 18th August, 1977 and lastly on 7th September, 1977.

By the order dated 2-8-1977, the Court had directed the defendants to disclose their case as to by what right they were residing in the suit premises. Despite this order, the defendants failed to come out with their case in this behalf and chose to remain as vague as they were in the written statement. The suit was adjourned from time to time; but the defendants were adamant in not disclosing their case to the Court. On behalf of the plaintiff, therefore, a Notice of Motion was taken out on 8-3-1977 for striking of their defence. The said Notice of Motion was on Board on 18-8-1977 . The learned Advocate appearing for the defendants asked for some more time for clarifying their case relating to their right to or in respect of the premises. The Court ultimately passed an order adjourning the suit to 7-9-1977 and directing the defendants to file an affidavit or a supplementary written statement on or before that date. The order clearly shows that the affidavit or supplementary written statement was to be filed only with a view that the defendants might disclose their case relating to their rights via-a-vis the suit premises.

The defendants filed affidavit on 7-9-1977. The affidavit was swooned by defendant No. 1 on behalf of himself and other defendants, 2, 6, 9 and 13. In the affidavit, for the first time, a case was made out that defendant No. 1 was a lawful sub-tenant of the suit premises and was, such, protected by the Bombay Rent Act from eviction. The learned Judge before whom the affidavit was filed was satisfied that this was an evasive pleading. It was not stated as to when the sub-tenancy was created in favour of defendant No. 1 and as to who had created the said sub-tenancy in his favour nor any terms of sub-tenancy were set out in the said affidavit. When asked for explanation in that behalf, the learned Advocate for the defendants submitted that he was a sub-tenant in respect of the premises meaning thereby that it was not incumbent upon him to show as to whose sub-tenant he was An order was, therefore, passed by the learned Judge once again calling upon the defendants to state as to-

1) When the sub-tenancy was created:

2) Whose sub-tenant he was:

3) What were the terms and conditions of the sub-tenancy.

The affidavit in that behalf was to be filed on or before 29-9-1977 to which day the suit was adjourned. However, even though this further time was given to the defendants to file their clarificatory affidavit on or before 29-7-1979, no affidavit was filed by the defendants till 9th of November, 1977 by coming out with any specific case as such. But later on, defendant No. 1 came out with a case that he had been residing in the suit premises from 1st March, 1945 under the sub-tenancy created by one Rehamatali by virtue of which he was put in the exclusive use and occupation of the said Room No. 140 upon payment of the same amount of rent to him as he was paying to the landlord. It was mentioned that sub-tenancy was for an indefinite period and that there was no other express terms of sub-tenancy.

This is the nature of the case with which the defendants have come before the Court by way of defence to the plaintiff's suit.

5. This was the state of pleadings when the issues came to be framed. The affidavits filed by the defendants were treated to be supplementary written statements and the issues were framed on that basis. Various issue were got framed; but all of them were not pressed. The main issues were issues Nos. 2, 3 and 4. They were as follows :---

(2) Whether the plaintiff proves that he is a tenant of the suit room?

(3) Whether the plaintiff proves that the defendants are living jointly with the plaintiff in the suit premises with the plaintiff's leave and licence which has been revoked orally about four months prior to the suit?

(4) Whether the defendants Nos. 1 to 6 and 9 to 13 prove that the suit room was sub-let by one Rehamatali to defendant No. 1 on or about 1st of March, 1945 and that the said sub-tenancy is subsisting ?

The evidence was led by the parties on this basis. The plaintiff examined himself and the landlord's Rent Collector, Kamalaprasad. Through these witnesses he tried to produce evidence which may be classified in three categories. Firstly, he produced Ex. A which was a writing purporting to have been executed by one Rehmatali, the original tenant of the suit premises. The writing was addressed to the landlord and the writing purported to state that he was unable to pay the rent of the suit premises and was hence desirous of surrendering his tenancy right to the landlord in favour of the present plaintiff. The writing is dated 19-12-1957. The second document in this first category of documents is the rent receipt Exhibit-B. The said rent receipt is signed by Kamalaprasad, the Rent Collector of the landlord. It bears the rubber stamp of the landlord and it shows that on 19-2-1957, the rent was accepted by the landlord from the plaintiff as a tenant in respect of the suit premises for the month of January 1957 to 31st January, 1957. It may be mentioned here that though the receipt is said to have been taken on 19-2-1957, the rent, which appears to have been paid by the plaintiff, is for the month of January 1957.

The second category of evidence consists, firstly of the four rent receipts for the subsequent period from February 1952 till May 1957. The further rent receipts in this second category of documents are the 171 rent receipts for the subsequent period till the date of the suit and even thereafter till the date of the evidence which was given in the year 1979. There are other 18 rent receipts which were sought to be produced by the plaintiff along with these 171 receipts but it appears that they remained to be proved and hence they were not taken on record.

The last category of the evidence led by the plaintiff relates to the fact that the plaintiff was recognised by the landlord to be the tenant of the suit premises even otherwise. For this purpose Kamalaprasad, the Rent Collector employed by the landlord, was examined by the plaintiff, incidentally, I may state here that in the category of evidence will also fall the evidence of the landlord Saifuddin Gulam Husein who was examined by me in this Court in the peculiar circumstances of the case. His evidence also goes to show that the plaintiff was recognised by their landlord to be the tenant in respect of the suit premises, if not from the period before 1972, at least from the month of January 1972. If the evidence falling in category Nos. 2 and 3 is believed, then it will have to be held that the plaintiff has made good the case with which he has come out in the plaint; but that aspect of the appeal will be dealt with by me a little later.

6. On behalf of the defendants, the main evidence led was that of defendant No. 1 only . There is another witness examined by the defendants. But that was almost a suicidal act on their part because by the said evidence in fact the case of the plaintiff against the defendants came to be reinforced. However, it can be said that the defendants tried to support their case on the strength of the evidence of defendant No. 1. The result was that Mr. Sayed frankly stated his inability to rely upon that piece of evidence.

7. The learned Judge examined the entire evidence and was satisfied-

(a) that the plaintiff had sufficiently established his case relating to the tenancy in respect of the suit premises:

(b) that the defendants were only the plaintiff's licensee and that the case of the 1st defendant that he was a sub-tenant in respect of the suit premises was wholly unestablished.

The Court held that the defendants were only the plaintiff's licensee and that the licences having been revoked, the defendants were under legal obligation to vacate the suit premises. The plaintiff's suit for possession against the defendants was, therefore decreed by the learned Judge.

8. When the appeal came up for final hearing before me I had a great sympathy for the defendants as such because I could see that they have been residing in the suit premises for quite some time. I could see that even on the plaintiff's own showing the defendants were given permission by him to reside in the suit premises along with himself; they even shared rent with him. I had suspicion in my mind, which incidentally has remained a suspicion only, that some of the defendants might have been there in these premises even before 1957. I could see that these persons have been residing in the premises as per the normal practice followed in this city where one man is tenant in respect of the room and the room is used by several persons in a kind of floating manner. One person comes, stays there for some time, brings some other person, that other person also resides; in the meantime the first person goes back to his native place or dies. This floating residence goes on for years together. Many a time the original tenant dies but the rent bill continues to be in his name and the rent is paid by the occupants by sharing the same amongst themselves. I had a lurking suspicion that the present plaintiff had taken advantage of the fact that the other occupants of the premises had not objected to the rent bill being transferred to his own name. I had got an impression that the plaintiff had persuaded Rehmatali some how or the other to make statement before the landlord or to persuade the land-lord to transfer the rent bill in the plaintiff's name and thus got into himself the tenancy rights in respect of the suit premises. I thought it to be a possibility that the others occupied the suit premises in the same manner in which they earlier occupying it when Rehamataliwas tenant in respect of the same. But the point is that one could not escape the confusion that the defendants became plaintiff's licensees with the result that the plaintiff would no doubt get a legal right to terminate the licence of the said other occupants and to ask them to vacate the suit premises. But legal though the strategy was I could not persuade myself to hold that was fair play on the part of the plaintiff. With the general judgment of the learned judge, I was in broad agreement; but all the same I could not help feeling that the defendants had received raw deal from the plaintiff.

9. I tried to do my best to help the defendants by promising them to give maximum time possible to vacate the suit premises. However, they could not be persuaded to have any negotiations on the basis of giving of time to them for vacating the suit premises.

10. The main question in this case is as to whether the landlord at any time had validly recognised the plaintiff's tenancy in respect of the suit premises. Mr. Sayed, the learned Advocate appearing for the appellants, strenuously contended that the evidence of Kamalaprasad was not sufficient for the purpose of establishing the fact that the landlords of the premises had and have recognised the plaintiff to be their tenant. The entire evidence of the plaintiff and Kamalaprasad was examined and about the defendants were scrutinised; but Mr. Sayed was unable to satisfy me that the plaintiffs' tenancy was not recognised by the landlord. However, to resolve all doubts, in my jurisdiction under Order 14, Rule 7 of the Civil Procedure Code, I decided to examine the landlord who was looking after the property in question in this Court. Speaking order in that behalf was passed by me, more or less by consent of the learned Counsel on 10th August, 1984 and in pursuance of the said order summonsed was issued to Saffuddin Gulam Husein, one of the four co-owners of the suit premises, to remain present in this Court to give evidence in this appeal.

11. In pursuance of the said summons Saifuddin Gulam Husein, one of the four co-owners of the suit premises and the person looking after the property at present, attended this Court. His evidence was recorded by me. He was duly examined by Mr. Meghani and duly cross-examined by Mr. Sayed for the appellants. As will be presently pointed out, after carefully examining the evidence I was satisfied that in any event the fact that the present plaintiff was there in the suit premises as the tenant thereof stood proved by virtue of the evidence on record. I was also satisfied that the fact that the landlord of the suit premises had in fact recognised the plaintiff to be the tenant in respect of the suit premises was fully established.

The question then arose was whether in spite of all this evidence, it could still be said that the plaintiff must be non-suited for some reasons or the other.

12. The contention of Mr. Sayed, the learned Advocate appearing for the appellants was that the plaintiff had filed a suit on his title and his vigorous contention was that the plaintiff has failed to prove his title as tenant of the suit premises. The burden of his song was that the plaintiff had admitted Rehamatalioriginally to be the tenant in respect of the suit premises and the line of his argument was that their is nothing on record to show that Rahimatali's tenancy has come to an end by virtue of any eventuality; argument proceeds that if Rehamatalicontinues to be the tenant, the landlords had or have no legal power to create tenancy in favour of the plaintiff in the year 1957 or even at any time thereafter so long as Rahamatali's tenancy did not stand terminated by virtue of any eventuality. I will presently mention why the plaintiff's plea relating to the termination of Rahmatali's tenancy cannot be accepted by this Court. But at this stage I may mention the basis of his contention. He heavily relied upon the judgment of the Supreme Court in the of Hiralal Vallabhram v. Sheth Kasturbhai Lalbhai and others, : [1967]3SCR343 . He particularly relied upon the following observations of the Supreme Court in para 7 of the said judgment :

'The interest of a tenant who for purposes of section, 14 is a contractual tenant comes to an end completely only when he is not only no longer a contractual tenant but also when he has lost the rights to remain in possession which section 12 has given to him and is no longer even a statutory tenant. In other words section 14 would come into play in favour of the subtenant only after the tenancy of the contractual tenants has been determined by notice and the contractual tenant has been ordered to be ejected under section 28 on any of the grounds in section 12 or section 13'.

But while relying upon these observations of the Supreme Court the learned Counsel overlooked the immediately next observation of the Supreme Court which is as follows :---

'Till the event happens or till he gives up the tenancy himself the Interest of a tenant who may be a contractual tenant for purposes of section 14 cannot be said to have determined i.e. come to an end completely in order to give rise to a tenancy between the pre-existing sub-tenant and the landlord. In the present case we have already indicated that the interest of the tenants-in-chief does not seem to have come to an end by their eviction nor the Appellate Court does not seem to have ordered their eviction, nor have they given up the tenancy themselves. In that view the sub tenant namely, the present appellant, cannot be deemed to be tenant-in-chief of the landlord.'

I will presently refer to the significance of the said further observation of the Supreme Court. At this stage it can be said by relying conveniently upon the observations of the Supreme Court, viz. that until tenant's tenancy is terminated meaning thereby until not only the contractual tenancy but even the statutory tenancy stands terminated, the provisions of section 14 of the Rent Act do not come into operation. Mr. Sayed contended that in the instant case there is nothing on record to show that in fact the tenancy of Rahmatali came to an end at any time. The contention was that there is nothing on record to show that the landlord had given any notice of termination to him nor is there anything on record to show that assuming that Rahmatali was only a statutory tenant even his statutory tenancy was terminated by any of the process contemplated by the Rent Act. He contended that the only method by which the tenancy is alleged to be terminated is the writing Exhibit-A, allegedly executed by Rahamatali in favour of the landlord of the premises The writing is dated 19-2-1957. By that writing Rahamatali has stated to the landlord that he was not in a position to pay rent of the premises and that he was desirous that the present plaintiff should be given the premises. He stated that from that date i.e. 19-2-1957, the present plaintiff would be the owner of the Room No. 140 meaning thereby that it would be he who would be having tenancy rights in respect of the same which until that date were held by Rahamatali himself. He mentioned that from that date he had no right whatsoever to the room and he stated that the present plaintiff was at liberty to do whatever he liked with the room.

The document is in Hindi in the Devnagri script. As per the evidence of Kamalaprasad, he himself is the scribe of the said document. He has stated that at the time when the writing was executed. Gulam Husein father of the present landlords, who was looking after the property, was very much present. He stated that Rahamatali had put his thumb mark on the document in his presence. The document which is produced is no doubt torn out at its bottom portion; but the thumb impression still exists. Mr. Sayed, however, vigorously challenged the genuineness of these documents. The first part of his challenge to the document was that, that document was not referred to in the plaint anywhere nor was it disclosed in the first affidavit of documents filed by the plaintiff. He pointed out that the said document saw the light of the day in the Court only when supplementary document was filed by the plaintiff in the year 1977. He, therefore, contended that this document must have been fabricated after the filing of the suit.

The second line of attack on this document is that though the bottom portion of the document and particularly right hand corner of the bottom of the document is torn up, still there exists some scribbling followed by one word 'the'. The Urdu words are Khan Bhakalame Khud. Mr. Sayed's contention is that this purports to be the signature of Rahamatali. According to him, he was not Rahamatali but Rahamatali Khan. But realising that Rahamatali Khan was an illiterate person somebody else has put the thumb mark posing that it was the thumb mark of Rahamatali. The contention is that the entire document has been cooked up long after the date of the suit. Initially I was of the opinion that there might be some substance in this contention; but only because of the doubt expressed in connection with the above mentioned Urdu endorsement or rather by the remnant of the Urdu endorsement finding place on the right hand corner of the document. But all these doubts are removed when one looks at the stamp paper itself. The stamp paper is in the name of Rahamatali. The documents start by saying that it was being executed by Rahamatali not by Rahamatali Khan. The stamp is issued as early as on 15-2-1957, just four days before the execution of the same. Moreover, Kamalaprasad was minutely cross-examined in connection with this document; but so far as this circumstance namely the torn urdu endorsement mentioned above is concerned, there is not as much as a whisper of cross-examination of Kamlaprasad on this point. As pointed out by Mr. Meghani, through the entire evidence, Rahamatali has been described as Rahamatali, not as Rahamatali Khan. Even the defendant's own witness has referred him at various places as Rahamatali. In the evidence of Kamlaprasad also he has been referred to as Rahamatali only. As a matter of fact at one place Kamlaprasad had mentioned the name of the said earlier tenant as Rahamatali; the Court typist took. It down as Rahamat Khan, but the word 'Khan' has been scored out and the word 'All' is written in that place. The further contention that Rahamatali was not Rehamatali simplicitor but was Rehamatali Khan is a contention which is being put before the Court for the first time in the appeal. I see no basis for it in evidence. The very basis for the contention that the word 'Khan' finding place in the Urdu endorsement on the right hand corner purported to refer to the name of Rahamatali is, therefore, devoid of any substance. I do not find any justification to accept this part of Mr. Sayed's argument regarding the said document Exhibit-A.

13. The learned Advocate appearing for the plaintiff has given very good reason why the document Ex. A was not referred to in the plaint and the learned trial Judge has discussed the argument and given very good reasons of his own why he was inclined to accept the same. The argument has been examined by the learned Judge in para 10 of his judgment. It is unnecessary for me to refer to the entire reasoning because I fully agree with the same. Moreover, I may state that the plaintiff's suit is not based upon this document as document of title at all. In no sense this document is a document of title. It is only a piece of evidence for the purpose of proving as to how the plaintiff became entitled to get tenant's title in respect of the suit premises. A piece of evidence is not required to be pleaded. Moreover, the plaintiff's suit is very simple. He has pleaded his tenancy at the time of the suit and he contended that the defendants were only his licensees and that he had revoked their licences, with the result that he had become entitled to eviction. The plaintiff had in fact no occasion to mention the beginning of the tenancy in the year 1957. It follows that he had no occasion to refer to the writing Ex. A by virtue of which the landlord became legally competent to create a tenancy in favour of the plaintiff in the year 1957. The appellants challenge to the said document has been rejected by the trial Court and I find no reason to disagree either with his reasoning or with his conclusion.

14. But Mr. Sayed also very seriously called in question the genuineness of the receipt Exhibit-B executed by Kamlaprasad in favour of the plaintiff. His first challenge to the receipt was based upon the fact that the receipt appears not to be an old paper. The receipt which is made for the new rent bill makes out comparatively fresh appearance. In this connection he pointed out that the other 171 rent bills cum receipts have become yellowish by the lapse of time; but the first receipt dated 19-2-1957 Exhibit-B has a white appearance of freshness.

15. Thirdly Mr. Sayed pointed out that the number of the bill 2329 has been almost in the middle of the upper portion of the receipt and not immediately after the words below the number on the left hand corner. Fourthly he pointed out that so far as the landlord was concerned he did not put his signature on the same at all; but the receipts bear only the rubber stamp of the landlord. Nextly he pointed out that by the said receipt rent is received not for the month of February, but for the month of January 1957. Lastly, he pointed out that initially on the bill cum receipt the name of Rehamatali was written but that name was scored off and the name of the present plaintiff is written on the same.

16. I will deal with each of the challenges in detail. So far as the rubber stamp of the landlord is concerned, there existed some doubt in my mind and that was one of the reasons why I decided to take additional evidence in this Court and examined one of the landlords of the premises who was managing the property on behalf of himself and others. The said landlord, Saifuddin Gulam Husein has stated in so many words and quite in unequivocal manner that all the rent bills which subsequently became the rent receipts bear only the rubber stamp of the landlord and none of them bear the signature of any of the landlords. He has stated that this was the practice at the time when his father was looking after the property and that this is the practice which is being followed even till today. On the said plea of the landlord there was no cross-examination by Mr. Sayed. This position is, therefore, accepted by the learned Counsel that both the rent bills became the rent receipt when the rent was received by the Rent Collector and when he signed the same in token of the receipt of the rent. The further accepted position is that the rent bill-sum-receipts bear only rubber stamp of the landlord and the mere fact that the landlord's signature found no place on the rent bill-cum-receipts did not mean that the rent bills-cum-receipts were in any way of spurious character. It may be mentioned here that there are as many as 175 additional rent bills-cum-receipts on record which bear only the rubber stamp of the landlord. The landlord had stated that even after 1972 and even till this date and even to all other tenants of the property the bills-cum-receipts are issued only with the rubber stamp of the landlord and not with the signature on any of them. The second challenge, therefore, does not survive.

17. The third challenge and fourth challenge may be considered together. The contention was that though the new tenancy of Jumankhan started from 19-2-1957 still the rent that he had paid was for the month of January 1957 and initially the name of Rahamatali was written but the same has been scored off and in its place the name of Jumankhan, the present plaintiffs is written.

Now to my mind these facts really vouch for the genuineness of the documents, not for their spuriousness. It has come on record and also in the evidence of the present landlord Saifuddin and the evidence stands to reason that the Mehta of the building prepared the bills for each of the tenants at the beginning of the month for each month and the name of each of the tenants used to be written in the beginning of the month. It was only when the tenant actually paid the rent to the Rent Collector that the Rent Collector put his signature on the rent bill in favour of the tenant in question and it was only then that the rent bill became the rent receipts executed on the date mentioned by the Rent Collector. In the instant case, therefore, it is obvious that the Mehta of the building had prepared that particular rent bill for the month of January 1957, Exhibit-B, in the beginning of January of the year 1957. The rent for the month of January 1957 was evidently not paid in that month. Naturally at that time the name written on the rent bill was of the original tenant Rahamatali. It bore the stamp of the landlord. It was only when Rahamatali came to the landlord with Kamlaprasad with the request that the rent bill be transferred to the name of the present plaintiff Jumankhan and executed the writing Exhibit-A in his favour on that day that the plaintiff paid rent for the month of January to the landlord and that the rent bill standing in the name of Rehmatali was converted into the rent receipt. Naturally the name of Rehamatali was scored off and in its place the name of Jumankhan Mohamed Hussein Khan was put above the name of Rehmatali. These facts really show the genuineness of the documents. If such a document is to be fabricated on a later date these particulars could never have been born in mind and could not have been present to the mind of the person who was the author of the fabrication. All these facts indicate the genuineness of the documents.

The next arguments is that the paper appears to be of fresh origin in comparison with the subsequent rent receipts which have become old and yellowish and the argument is that the number of the bill is not immediately after the words 'bill number'. In the first place there is no cross-examination of Kamlaprasad on this point. It is he who has signed the particular bill-cum-rent receipt dated 19-2-1957. No question has been asked even to the plaintiff in this behalf. The fact that the number finds place some what in the middle of the upper portion and not immediately after the bill number is really quite explicable. These numbers are not printed numbers. They are put by rubber stamps subsequently. Really speaking if the rubber stamp of the number was not put later on by way of fabrication, care would have been taken that the number was put immediately after the words bill number. The appearance of the paper can be explained by the fact that this document was lying separately from other documents. That was the precise reason why the document was not produced for quite some time because the plaintiff was not able to trace it. Evidently, therefore, it was lying in a safe place with the result that its appearance did not become yellowish in colour. Moreover, all these arguments are without any basis when one finds that the witness who produced the same and proved the same has been asked no question in that behalf. Further still, Exhibit C, the bunch of documents are for the months of February, March, April and May 1957. The only objection to this document was that they bore not the signature but the rubber stamp of the landlord. Once that argument is negatived as mentioned above and once it is noticed that it could not be pressed by the appellants learned Counsel himself, it follows that the genuineness of the entire chain of original evidence stands fully established. The plaintiff had paid the rent for the month of January on 19-2-1957 and hence he was given rent receipt with the consent of Rahamatali for the month of January 1957, although the receipt itself was executed on 19-2-1957. He subsequently paid rent for the months of March, April, May and June and the receipts executed in his favour have been duly produced and proved in these proceedings. It is true that the receipts for the month of February 1957 is not produced. But it is easily understandable that after such a long lapse of time, one receipt for the month of February 1957 may not be traceable.

Similar is the position of the other rent receipts for the subsequent period. These receipts are 171 in number. Each one of them has been duly proved by Kamlaprasad and there is nothing from which any inference of spuriousness can be even remotely raised. If this is the position, then it is futile to contend that the plaintiff has not proved his title in respect of the suit premises right from the year 1957 itself.

18. I may state here that the burden of Mr. Sayed's song was regarding the spurious character of these writings Exhibit-A and the bill-cum-receipt Exhibit-B. If his arguments on these points failed he had no other arguments to advance against the plaintiff's title to the suit premises. But as mentioned earlier the plaintiff's cases need not rest there. The point is that the defendants have no title to the suit premises whatsoever. It was not defendant's contention at any late stage that he was the sub-tenant in respect of the suit premises. He was himself not sure as to whose sub-tenant he was. In the law relating transfer of property, the tenant's title is of peculiar character. The very concept of tenant postulates existence of a landlord. If a person claims to be a tenant he must be able to state as to whose tenant he is. Likewise if he claims to be a sub-tenant he must state as to whose sub-tenant he is. Defendant No. 1's learned Advocate came out with a spacious plea in this Court that defendant No. 1 was a tenant of the premises, not of a particular person. There is no substance in the contention. In the context of our property Jurisprudence, it is meaningless. I have frequently noticed such arguments or contentions being airily and conveniently raised and it is better the meaningless plea is scotched by a judicial pronouncement in no uncertain words. It may be that a person may become a sub-tenant against the wishes of a particular tenant or of a particular landlord. There are laws relating to the agricultural tenancy as per which the tenancy is in fact foisted upon an unwilling tenant by virtue of operation of law. Even as per our present Rent Act the tenancy of a sub-tenant is foisted upon the landlord under section 14 of the Rent Act whether he likes it or not; but that does not mean that a sub-tenant can be a sub-tenant without there being anybody of whom he has to be a sub-tenant. The property relationship such as tenancy or mortgage are peculiar concepts. They have no existence in the absence of the corresponding concepts of landlord or mortgagor. Any particular person being a tenant without some other particular person being a landlord is inconceivable. When the defendant is unable to say as to whose subtenant he was, evidently it shows that he himself was not sure about his own claim. In the written statement a spacious plea was taken that the defendants were in occupation of their room in their own rights, they did not state as to what their right was. They refused to state so repeatedly and came out with some kind of plea of sub-tenancy only after a specific order was passed by the Court in that behalf. But the important fact is that after pleading the sub-tenancy of Rahmatali, no evidence whatsoever is led by defendant No. 1 to prove that fact. The plaintiff's contention has been that defendant No. 1 was inducted by himself as his own licensee in the suit premises. But so far as defendant No. 1 concerned his plea that he was Rahamatali's sub-tenant that was not only an incorrect but was an evidently incredible plea, incredible to his own knowledge. In other words it was a blatantly false plea. I may state here that even Mr. Sayed was not able to justify the said plea; he candidly stated before the Court that there was no evidence on record by which he could support or justify the said plea. If that is the position then the fact remains that when Rahamatali had given up his right the title and interest in the suit premises as early as on 19-2-1957, the landlord was at liberty to give the premises on rent to anybody he liked. It is true that so long as there existed a tenant or sub-tenant in the suit premises, the landlord was not competent as per the Rent Act to let out the premises to any one else and if he lets them out to any other person other than a sub-tenant, the tenancy in favour of such other person would be wholly void and illegal being of no legal consequence whatsoever. There can be no quarrel about this legal position. But the point in this case is that as from 19-2-1957, there existed no person as tenant on the suit premises and hence the landlords were at complete liberty to let out the premises to any person of their choice and accordingly the landlord had let out the premises to the present plaintiff. The plaintiff's evidence is, therefore, perfectly valid. The plea that the plaintiff has not proved his tenancy title vis-a-vis the suit premises is, therefore, wholly untenable.

19. Mr. Sayed nextly contended although there existed rent bills for period from 1957 to 1972 in the form and shape of the various rent receipts which form part of Exhibit-D still the counter foils of the said rent receipts are not produced either by the landlord or by Kamlaprasad and, therefore, these rent receipts must have been brought into existence by Kamlaprasad only after the date of the suit. The argument is untenable on the face of it. One has merely to have a look at these 171 documents to satisfy himself that these documents could not have been brought into existence unless the fabricator was gifted with some super natural power. All the documents are genuine on the face of them. They have come from proper custody. A suggestion was thrown to the Rent Collector that the rent was paid in fact by defendant No. 1 in the name of Rahamatali till the year 1973 and that he received the rent receipts from Rent Collector but that all these rent receipts were stolen by the plaintiff himself and thereafter the present rent receipts, Exhibits B, C and D have been manufactured.

In the first place these receipts have been referred to by the plaintiff itself. The contention that they were brought into existence after the filling of the suit is therefore meaningless. The inspection of all these rent receipts was given without any delay. It is true that the plaintiff initially filed on 18 rent receipts along with the affidavit. But as rightly pointed out by Mr. Meghani, in the beginning there was no necessity of producing all the rent receipt and, therefore, only 18 rent receipts relating to the relevant period were produced. Later on it was found by the plaintiff that the production of all the rent receipts was necessary and hence those additional 171 receipts were produced by the plaintiff. Out of the 18 rent receipts, only 4 have been exhibited. The remaining 14 remained un-exhibited although they are part of Exhibit 1 which is very much there on record. It was not found necessary to exhibit them in the trial Court. I also have not found it necessary to exhibit them in the appeal. But the point is that these receipts which are exhibited themselves go a long way to show that the plaintiff was recognised by the landlords as the tenant.

But even assessing that the writing Exhibit-A is not proved as a genuine document, still the fact remains that the landlord has accepted the plaintiff as a tenant from the year 1957 till the year 1972. The position from 1972 is of different nature and I will refer to that aspect presently. The period between 1957 and 1972, is a period in which the plaintiff's tenancy is recognised by the landlords. Defendant No. 1 has admitted in so many words in his cross-examination as follows :

'Since Rahamatali had left the suit room in the year 1957, and left Bombay permanently, I have not paid any rent. Rehamatali met me in the suit room before he left Bombay permanently. I was also staying in the suit room on that day. Rahamatali had left the suit room permanently for his native place with all his belongings. Rehmatali was also staying in the suit room. I did not tell Rahamatali to transfer the rent bill from his name to my name before he finally left the suit room.'

It is thus clear that from the year 1957 when the rent bill was transferred in the name of the plaintiff, Rahamatali had removed himself from the room. Thus this is a clear indication of the fact that Rahamatali had given up his tenancy himself, the eventuality contemplated by the Supreme Court, when it made observations in para 7 of its judgment, as extracted above. This is a clear of relinquishment of tenancy by the tenant. I make it clear that the fact that the tenant had surrendered his tenancy is duly proved by the writing Exhibit-A itself, but even assuming that the said writing was for any reason, insufficient for putting an end to Rahamatali's original tenancy the relinquishment of tenancy on his part is established by the evidence on record. viz the deposition of defendant No. 1 himself and by the fact that right from the year 1957 till this date Rehamatali has not moved his small finger to question the creation of tenancy in favour of the present plaintiff, All these rent receipts, argued Mr. Meghani, unmistakably prove that there is a valid creation of title of tenancy in favour of the plaintiff. Mr. Sayed argued that the receipts do not constitute a title. There need be no quarrel with that proposition. It is nobody's contention that there receipts, they may be 170 or they may be 171 in number, are documents of title but the point is that they are evidence of title validly existing. It may be that in given circumstances there may exist no title and still receipts may have been given in favour of a person having no title of tenancy. In such a case the receipts will not create a tenancy which never existed. But normally, in the absence of evidence to the contrary, the receipts will form a strong piece of evidence for proving a pre-existing tenancy.

20. In this connection one of the circumstances which falsifies the contention of defendant No. 1 may be stated. His contention was that he was himself paying rent on behalf of Rahamatali till the year 1975; but that rent receipts were stolen by the plaintiff before filing of the suit. However beyond his bare word there is no evidence about this fact at all. On the other hand there is intrinsic evidence on record to establish that the statement is a false statement. His contention was that till the year 1973, he paid rent for the suit premises on behalf of Rehamatali. Saifuddin Gulam Hussein who was examined in this Court has produced the Register for the year 1972. The register clearly shows that for the month of January 1972. It has been the plaintiff and no one else who has been the tenant in respect of the suit Room No. 140. It is not even argued that the Register was not genuine. This evidence thus inevitably falsifies defendant No. 1's plea that he paid rent till 1973 in the name of Rahamatali. No further comment is necessary as regards this spacious plea of the defendant.

21. But I am prepared to go a step further and assume that the plaintiff's tenancy started for the first time in the year 1972 when the present landlord took over the management of the property in question. The landlord, Saifuddin has stated before this Court that his father died sometime in the year 1972, that till that time it was he who was managing the suit property and that after his death the management was taken over by the witness himself. In fact there was no challenge to this part of the witness's evidence at all. The landlord has stated in so many words in his evidence that although he does not know the plaintiff personally still he knows from the record that the plaintiffs has been a tenant in respect of the suit premises. He has stated that he has been a tenant not only from 1972 but even from the earlier period. I myself specifically asked him the question as question from the Court as to whether he had recognised the plaintiff as the tenant in respect of the suit premises. In answer to this question he stated that as the record shows that the plaintiff's tenant of the suit premises he has recognised him as a tenant. From his evidence it is clear that the plaintiff has been a tenant in respect of the suit premises at least from the year 1972 for which period the relevant register has been produced. If this is the position, the plaintiff must be held to be the tenant of the suit premises at least from the year, 1972. Once it is held that none of the defendants was having any rightly, title and interest in the suit premises whatsoever, it was open for the landlords to give the tenancy to anyone else even if the person was not occupant of the suit premises. The landlord has given it to one of the occupants. The fact that the plaintiff was one of the occupants is implicitly admitted by the defendants in their written statement and this position was conceded by Mr. Sayed also. If this Court assumes that the landlord created a tenancy right in favour of the plaintiff even as late as in the year 1972 the tenancy must be held to be a valid tenancy. I may repeat that the plaintiff has come out with a case in the plaint of his tenancy only at the time of the suit. Even if, therefore, his tenancy is proved from the year 1972, that fact is enough for the purpose of the decree in his favour. Whatsoever is the case with which the plaintiff has come out in the plaint, he has proved the same by his evidence.

The defendant's appeal must, therefore fail.

22. I, however, cannot part with the judgment without observing that though I am dismissing the appeal, I am really sorry for the defendants. I have mentioned above the usual practice obtaining in this city of fluctuating population occupying premises particularly in the working class localities. It appears that the present defendants have been residing in the suit premises for a sustained period. The plaintiff appears to have played the role of a Smart Aleck; I do not blame him for that. Whatever he did was perfectly legal but still I do feel that it was a raw deal. He seems to have stolen a march over the other occupants and obtained for him the legal right vis-a-vis the suit premises. Although, therefore, I am dismissing the appeal I am not inclined to pass any order as to costs. Since I am dismissing the appeal, I am helpless in the matter of order of costs passed by the trial Court. But so far as this appeal is concerned, there shall be no order as to costs.

23. Similarly, if appears that the defendants have been in occupation admittedly of the suit premises for the limited purpose of their residence for a long period, some of them must have been there at least from the year 1957. This means that for about 25 years they are very much there. The decree no doubt will require them to find out their shelter elsewhere. But upon the application of Mr. Sayed for allowing time to the defendants to vacate the suit premises on or before 1st October, 1985 and upon their making their affidavits of the nature which is being indicated presently. I allow them time to vacate the suit premises upto 1st October, 1985.

In the affidavit they shall state that apart from the persons who will be named by the plaintiff as the lawful occupants of the suit premises on his behalf, only they themselves, that is to say only appellants Nos. 1 to 11 are in possession of the suit premises and that no one else is in occupation of the same. The affidavit shall particularly state that Jalilkhan s/o. Mustafa Khan, whose name is mentioned by the respondent in his affidavit dated 23rd August, 1984 is not in occupation of the suit premises. The affidavit shall also state that Subhan Khan s/o. Lal Mohammed, whose name shall be mentioned in the affidavit as the lawful occupant of the suit premises, is none other than the present appellant No. 11. In the affidavit an undertaking shall be given by all the appellants that on or before 1st October, 1985 all the appellants shall vacate the suit premises. This shall be, however, without prejudice to their right to file appeal against this judgment and to obtain stay from the appropriate Court and if and when the stay granted by the appropriate Court, the undertakings will be deemed to be vacated so far as the date 1st October, 1985 is concerned. However, they shall undertake that if their appeal is ultimately dismissed and decree against them becomes final, the undertaking to vacate the suit premises shall become effective forthwith. The appellants shall also give an undertaking in their affidavit that they will not require the plaintiff to report to the remedy of execution of the decree and possession of the premises will be handed over by the appellants to the plaintiff by way of compliance with the undertaking. The affidavit shall also contain an undertaking that at no time the appellant shall induct any other person in the suit premises.

Mr. Sayed for the appellants states that out of the appellants, appellants Nos. 1, 4, 6 and 11 are in Bombay at present. These appellants are directed to file the above mentioned affidavit within one week from today. The remaining appellants are directed to file their affidavit within 4 weeks from today. If the affidavits are not filed within the said time the appellants shall not be entitled to continue residing in the suit premises and they shall vacate the suit premises even without the execution of the decree subject of course to their right to file appeal against the decree to obtain stay from the Appellate Court.


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