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Gani Abdulla Since Deceased by His Legal Heirs and ors. Vs. Nennmal JaIn and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 14 of 1978
Judge
Reported in1984(2)BomCR738
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 14(1); Evidence Act, 1872 - Sections 3, 6, 9 and 102
AppellantGani Abdulla Since Deceased by His Legal Heirs and ors.
RespondentNennmal JaIn and anr.
Appellant AdvocateB.J. Rele, ;V.G. Madbhavi, ;and Usha V. Madbhavi, Advs.
Respondent AdvocateK.C. Nichani, Adv. for ;P.L. Nain, Adv. for respondent No. 1
Excerpt:
tenancy - eviction - sections 14 (1) of bombay rents, hotel and lodging house rates control act, 1947 and section 3, 6, 9 and 102 of evidence act, 1872 - suit premises was sublet to defendant lawfully - landlord filed petition against defendant for possession of suit premises on ground of trespass - section 14 provides that person to whom premises is lawfully sub-let deemed to be direct tenant of landlord - in present case defendant became direct tenant of landlord by virtue of section 14 - in view of position of law and facts defendant cannot be said trespasser - decree for possession of suit premises cannot be allowed. - maharashtra village police act (46 of 1967)sections 5, 6 & 15: [swatanter kumar, c.j., a.p. lavande & smt. vasanti a. naik, jj] powers of police patil held,.....sharad manohar, j.1. this first appeal is filed against the decree passed by the city civil court in the year 1977 decreeing the suit filed by the plaintiff in the year 1964 in that court. the facts to which the instant suit relates are even of much earlier period. at least from the year 1946, if not earliest still. the suit relates to the plaintiff's right to possession of one room and a kitchen in the suit premises, namely a tenement consisting of two rooms and a kitchen in a building called navnidhan bhuvan, 313, masjid bunder road, bombay. evidently, the suit premises have a great commercial value and that is the reason why it has become the subject matter of quite a spate of litigation.2. the facts which are relevant for the purpose of this appeal are the following :---(a) one.....
Judgment:

Sharad Manohar, J.

1. This first appeal is filed against the decree passed by the City Civil Court in the year 1977 decreeing the suit filed by the plaintiff in the year 1964 in that Court. The facts to which the instant suit relates are even of much earlier period. At least from the year 1946, if not earliest still. The suit relates to the plaintiff's right to possession of one room and a kitchen in the suit premises, namely a tenement consisting of two rooms and a kitchen in a building called Navnidhan Bhuvan, 313, Masjid Bunder Road, Bombay. Evidently, the suit premises have a great commercial value and that is the reason why it has become the subject matter of quite a spate of litigation.

2. The facts which are relevant for the purpose of this appeal are the following :---

(a) One Abraham Ayohanoff was a tenant in respect of one of the tenements on the first-floor of the building now known as Navnidhan Bhuvan. It appears that Ayohanoff was in occupation of the tenement from the year 1936. He was probably carrying on the business as a pearl merchant in the said tenement. It has been contended by the present appellant (who will hereinafter be mentioned as defendant No. 1) that one Abdulla, the father of the defendant No. 1, took a portion of the said tenement consisting of a room and a kitchen from the said Ayohanoff as a tenant on monthly rent of Rs. 20/-. Abdulla thus become the sub-tenant of Ayohanoff. There is difference in the version as to whether the sub-tenancy started from the year 1936 or from the year 1946-47. However, that question is not very much relevant for the purpose of this appeal. The point is that the very fact that any sub-tenancy was created by Ayohanoff in favour of Abdulla is not at all admitted by present respondent No. 1 (who will hereinafter be referred to as 'the plaintiff') and on the other hand the case of defendant No. 1 is that Abdulla become sub-tenant of Ayohanoff in respect of one room and kitchen in the tenement in question, in any event, before 1947, that is to say before the present Bombay Rent Act came into force. The fact that if he ever became sub-tenant of Ayohanoff, he must have become sub-tenant before 1947, is not disputed even by the plaintiff. The plaintiff's contention is that defendant No. 1 was never a sub-tenant in respect of the suit premises at any time and I shall have to examine that contention but at this stage I must state that the claim of defendant No. 1 is that he was sub-tenant in part of the tenement at least in the year 1947.

(b) According to defendant No. 1 original tenant Ayohanoff left the premises and a new tenancy was created by the owner of the building (who is defendant No. 3 in the instant suit) in favour of one Sobhagchand Jeshinglal Javeri (for short Sobhagchand). It has been contended that in fact a deed of assignment was executed by Ayohanoff in favour of the said Sobhagchand in respect of his business and it is also contended that Sobhagchand also took rent receipts personally in his name from the owner of the building. The transaction of assignment appears to have taken place on 6-6-1949. Original sub-tenant Abdulla died in 1950 and his son, defendant No. 1 stepped in his shoes. The contention of defendant No. 1, supported by Sobhagchand, is that after Sobhagchand became a tenant in respect of the premises, defendant No. 1 started paying him rent of Rs. 20/- per month as the sub tenant in respect of one room and the kitchen portion in the premises. According to defendant No. 1, this position continued till the year 1960.

(c) Thereafter on 31-8-1960 Sobhagchand removed himself from the premises and a new tenancy was created by the owner of the building in favour of A. Manoharlal & Co. It has been the contention of Sobhagchand in his evidence that in fact he executed a deed of assignment in favour of A. Manoharlal & Co. All the same, it is not disputed that he also surrendered the tenancy in favour of the owner of the building on 31-8-1960. Defendant No. 1's contention is that all the time when Sobhagchand was occupying the premises as a tenant, defendant No. 1 continued to occupy the particular portion of the same as a sub-tenant. His contention has been that he was paying rent to Sobhagchand. After the tenancy of Sobhagchand came to an end and when A. Manohalal & Co., were recognised by the owner of the building as the tenant in respect of the tenement, dispute started between A. Manoharlal & Co., and defendant No. 1. Although there was some dispute initially as to whether defendant No. 1 was in possession of the portion of the tenement (hereinafter referred to as 'the suit premises') or not, it was not very seriously disputed at least after the appeal was argued at length before me for some time, that defendant No. 1 was very much there in the suit premises when A. Manoharlal & Co., got possession of the same and he continued to be in possession even when A. Manoharlal & Co., went away making room for the present plaintiff.

(d) This happened in the year 1964. On 1-6-1964 the present respondent No. 1 (who will hereinafter be referred to as 'the plaintiff') became tenant in respect of the entire tenement by virtue of the tenancy created by the owner of the building in his favour. At the time when the plaintiff tried to get into possession of the entire tenement he received stiff resistance from defendant No. 1 so far as one room and kitchen portion of the tenement were concerned. The premises consist of two rooms and a kitchen. One of the two rooms is a bigger room and hence it is divided into two rooms by partition. This bigger room is in possession of the plaintiff and there is no dispute that he got possession of the same immediately when the tenancy was created in his favour by the owner of the building. The dispute originally pertained only to the other small room and the kitchen. I may state here that so far as the instant suit is concerned, the dispute does not relate even to the kitchen, it is confined only to the small room adjoining the kitchen. Although, however, the plaintiff had already become tenant in respect of the tenement with effect from 1-6-1964 it appears that so far as defendant No. 1 was concerned, he was not aware of this change and his disputes with A. Manoharlal & Co. were continuing and hence on 15-6-1964 Suit No. 2998 of 1964 was filed by him against A. Manoharlal & Co. for an injunction restraining said A. Manoharlal & Co. from interfering with his occupation of a particular portion of the present suit premises. It appears that the dispute in that suit related to a bath-room which was a part of the present suit premises and the suit was filed against A. Manoharlal & Co., by the present defendant No. 1 for asserting his right in respect of the said bathroom in his capacity as the sub-tenant in respect of the suit premises. In that suit an ex parte injunction was received by defendant No. 1 (plaintiff in that suit).

Present defendant No. 1 became aware of the plaintiff's right in respect of the tenement after he filed the above mentioned suit against A. Manoharlal & Co. His grievance was that the present plaintiff was interfering with present defendant No. 1's possession in respect of the suit premises. Hence Suit No. 4630 of 1964 was filed by him in the City Civil Court against the present plaintiff. The owner of the building was also made a party in the said suit. In the suit present defendant No. 1 (plaintiff in that suit) prayed for a mandatory injunction restraining present defendant No. 1 from dealing with or parting with the possession of the suit premises or interfering with the peaceful enjoyment of the suit premises by present defendant No. 1 (plaintiff in that suit).

(e) Thereafter the instant suit was filed by the present plaintiff against the present defendant No. 1 and two others. This suit is filed on 7th December, 1964. Gani Abdulla, the son of the above mentioned Abdulla is defendant No. 1 in the suit. Rajmal C. Shah who is the Constituted Attorney of defendant No. 1 Gani Abdulla was impleaded as defendant No. 2 and the owner of the building M/s . Mirachand Sobhagchand Bros has been impleaded as defendant No. 3 therein. Original defendant No. 1 Gani Abdulle died during the pendency of the suit. The present appellants, defendant No. 1(a), 1(b) and 1(c) have been brought on record as his heirs and legal representatives. The contention of the plaintiff in the suit is that defendant No. 1 has no right whatsoever to occupy the suit premises and that the plaintiff is entitled to possession of every portion of the suit premises as the tenant of the owner of the building, M/s. Mirchand Sobhagchand & Bros., and that defendant No. 1 is in unlawful occupation of one room adjoining the kitchen in the tenement in question. The prayer is that defendant No. 1 should be ordered to remove himself from the said room in the said tenement. In the body of the plaint (vide para 3 therein) it is stated that the entire tenement has been let out by defendant No. 3 to the plaintiff on 1st June, 1962. It is stated in para 4 of the plaint that when the possession of the tenement was to be handed over to the plaintiff, defendant No. 1 was in possession in respect of the suit premises (i.e. to say one room near the kitchen). It is stated in para 4 that defendant No. 1 came to occupy the suit premises by virtue of the fact that he had got the same on leave and license from the original tenant M/s. A. Manoharlal & Co. and that after the determination of the tenancy of A. Manoharlal & Co. the license granted by A. Manoharlal & Co. to defendant No. 1 came to an end automatically with the result that he was none better than a trespasser in the suit premises. It is on this basis namely that defendant No. 1 was none other than a trespasser of the suit premises that the instant suit is filed by the plaintiff for recovery of possession of the suit premises from defendant No. 1

3. Defendant No. 1 filed his written statement and denied the plaintiff's right to recover possession of the suit premises. He stoutly denied the fact that he was ever a licensee of A. Manoharlal & Co. His contention has been that his father Abdulla was the sub-tenant in respect of the suit premises right from the time when Ayohanoff was the tenant of the same. He contended that his sub-tenancy continued even after Sobhagchand came to occupy the tenement as the tenant of the same and even thereafter when A. Manoharlal & Co. came to occupy the tenement as the tenant, he contended that he was the sub-tenant of the suit premises, namely one room near the kitchen in the tenement and as such was fully protected by the provisions of the Bombay Rent Act.

4. On these pleadings, issues were framed by the learned trial Judge and the parties went to trial. The evidence led by the plaintiff consisted mainly of his own evidence to prove his tenancy in respect of the entire tenement and his right to actual possession of the suit portion of the premises. I may state at this stage itself that beyond his own evidence, no other witness has been examined by the plaintiff. I shall have to consider as to whether it was necessary for the plaintiff to examine other witness or not. In the instant case, the burden of proving that defendant No. 1 was occupying the suit premises not as a trespasser but in his own right as a lawful sub-tenant of the same lay heavily upon defendant No. 1 himself. Probably this is the reason why no evidence was led by the plaintiff either to forestall the evidence of defendant No. 1 or to rebut his evidence.

5. The heavy onus lying upon the shoulder of defendant No. 1 to prove his right to occupy the suit premises as a lawful sub-tenant of the premises was sought to be discharged by defendant No. 1 not only by examining himself, but also some other important witnesses. By leading that evidence his attempt was to prove that Abraham Ayohanoff had in fact created the sub-tenancy in favour of Abdulla, father or defendant No. 1. Defendant No. 1 examined Haji Vali Mohamed Haji Gani Motiwala. The said witness purported to prove 4 receipts produced by defendant No. 1. Those 4 receipts purport to have been executed by none other than Abraham Ayohanoff himself. Both the signature as well as the handwriting of Ayohanoff was identified by the said witness. The 4 receipts which are issued by Ayohanoff in favour of Abdulla showing that he was sub-tenant in respect of the suit premises were thus duly proved by the said witness.

Defendant No. 1 also examined Sobhagchanmd to prove that after Sobhagchand came to occupy the tenement, as the tenant Abdulla, and after his death defendant No. 1, continued to occupy the same as the sub-tenant thereof. Sobhagchand also purported to prove 23 receipts executed by him in the name of Abdulla.

The next witness examined on behalf of defendant No. 1 was Jayantilal Mangalchand Shah, the maternal uncle of Sobhagchand. This witness deposed that defendant No. 1 had been in occupation of the suit premises as a sub tenant. This witness stated that Ayohanoff sold the suit premises to Sobhagchand at the witness's request, that at that time Abdulla, the father of defendant No. 1 was also in possession of a part of the suit premise as its sub-tenant.

The next witness examined by defendant No. 1 was Vadilal Khojalal Parikh. This witness was also examined only for the purpose of proving defendant No. 1's occupation in respect of the suit premises during the time when Sobhagchand and A. Manoharlal & Co. were in occupation of the remaining portion of the tenement.

6. In addition to the evidence of these witnesses, defendant No. 1 produced the above mentioned documentary evidence in the form of rent receipts executed by Ayohanoff in favour of Abdulla showing that Abdulla had been in occupation of the suit premises as a sub-tenant. At least 23 receipts were produced by defendant No. 1 to prove that even during the tenure of Sobhagchand defendant No. 1 continued to occupy the suit premises as sub-tenant, upon payment of monthly rent of Rs. 20/- to Sobhagchand.

Defendant No. 1 had also produced certain correspondence addressed to him on the address of the suit premises. Defendant No. 1 also produced a passport taken by him in the year 1954 in which his address was mentioned to be the suit premises. Assessment orders passed in the year 1962 onwards were produced to show that before the Income-tax authorities defendant No. 1 had mentioned the suit premises to be his address.

7. The learned trial Judge took the view that though some of the receipt sought to be proved by Sobhagchand were duly proved, still some other receipts produced by the defendant were of suspicious character. On this ground, he proceeded to disbelieve and discard the evidence of Sopbhagchand totally. The learned Judge has not applied his mind to the question as to whether the four receipts executed by Ayohanoff in favour of Abdulla were proved or not. Likewise the learned Judge did not take into account any other circumstances such as the description of defendant No. 1's address on the pass-book as early as in the year 1954 and the correspondent received by defendant No. 1 on the address of the suit premises at the crucial time even before 1954. The learned Judge held that the 23 receipts alleged to have been executed by Sobhagchand could not be having any evidentiary value and that, hence, the evidence of Sobhagchand had to be discarded. Having thus come to this conclusion, the learned trial Judge proceeded to hold that if Sobhagchand's evidence is not accepted, defendant No. 1 must be deemed to have failed to establish his entire case of lawful sub-tenancy in respect of the suit premises. This is how he proceeded to hold that defendant No. 1 had not made good his case of lawful sub-tenancy in respect of the suit premises. A decree in favour of the plaintiff in terms of prayer (a) in the plaint was, therefore, passed by him.

8. Though the appeal was argued at length on various points before me, I find that the entire appeal is capable of being disposed of on a very narrow question. I find that the appeal has got to be allowed and the plaintiff's suit for possession of the suit premises has got to be allowed and the plaintiff's suit for possession of the suit premises has got to be dismissed because defendant No. 1 must be held to have succeeded in establishing his claim that :

(a) lawful sub-tenancy in respect of the suit premises was created in his favour by Abraham Ayohanoff at least in the year 1944, if not earlier.

(b) Even assuming that the rent receipts produced by defendant No. 1 and proved by Sobhagchand could not be relied upon for some reason or the other, still the fact remains that defendant No. 1 had been in continuous occupation of the suit premises even after the termination of the tenancy of Ayohanoff and that the occupation continued right till the date of the suit in spite of the change in the ownership of the tenancy rights which, took place twice thereafter, meaning thereby that defendant No. 1 continued to occupy the suit premises after the year 1949 when Ayohanoff's tenancy was determined. His occupation continued during the entire tenure of Sobhagchand; further occupation continued even after Sobhagchand's tenancy was determined and A. Manoharlal & Co. became tenant in respects of the suit premises.

(c) Defendant No. 1's sub-tenancy being lawful sub-tenancy it was protected by the provisions of the Bombay Rent Act and hence the plaintiff got no right whatsoever to claim possession of the suit premises from him.

(d) In fact it could be said that Abdulla had become the direct tenant of the owners of the building (present defendant No. 3) immediately after the determination of the tenancy of Ayohanoff. If defendant No. 1 had admitted the title of Sobhagchand as his landlord in ignorance of the provisions of section 14 of the Rent Act and if defendant No. 1 did pay any rent to Sobhagchand as is deposed to by Sobhagchand himself, defendant No. 1 would become at the most sub-tenant of Sobhagchand right form the year 1949, by virtue of implicit acquiescence both by the owner defendant No. 3 and by defendant No. 1. Upon the determination of the tenancy of Sobhagchand in the year l960, defendant No. 1 once again became the direct tenant of the owner of the building (defendant No. 3) by virtue of the provisions of section 14 of the Bombay Rent Act. Even if, therefore, Sobhagchand's successor A. Manoharlal & Co. refused to recognise defendant No. 1 as their sub-tenant, that fact had no legal effect of making defendant No. 1 a trespasser on the premises. This position did not change in any manner whatsoever by virtue of the subsequent creation of tenancy in favour of the present plaintiff by the owner of the building. So far as the suit premises are concerned, defendant No. 1 must be deemed to have become the direct tenant of the owner of the building (defendant No. 3) by virtue of the inexorable provisions of section 14 of the Bombay Rent Act and hence the plaintiff has not right, title and interest in the suit portion of the premises. This being so, the plaintiff's present suit which is virtually for possession of the suit portion of the premises cannot be decreed and the decree passed by the lower Court in favour of the plaintiff has got to be set aside.

9. As stated at the outset, though this is a suit by the plaintiff for recovery of possession of the suit premises from the defendant on title, still the onus of proving that defendant No. 1 has got a tenant's title in respect of the suit premises lies on defendant No. 1 only. This is so, because the title of defendant No. 3 as the owner of the said tenement is not denied by any of the parties. If defendant No. 3, therefore, let out the said tenement to the plaintiff, in normal circumstances the tenancy would be perfectly lawful tenancy. But the position that arises in this case is that even defendant No. 3 could have no right to create a tenancy in favour of any person if defendant No. 1 was already a tenant in respect of the suit portion of the premises. It may be that defendant No. 3 could have created a tenancy in respect of the remaining portion of the said tenement even if it was proved that defendant No. 1 had been in occupation of the suit portion of the premises as a lawful sub-tenant thereof. But even the owner of the building (defendant No. 3), could have no right and power to let out the suit portion of the premises, which form part of the said tenement, to anyone else. This legal position flows directly from the provisions of section 14 of the Bombay Rent Act which runs as follows :

'14(1) when the interest of a tenant of any premises is determined for any reason, any sub-tenant to whom the premises or any part thereof have been lawfully sub-let before the commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Ordinance, 1959 shall, subject to the provisions of this Act, be deemed to become the tenant of the landlord on the same terms and conditions as he would have held from the tenant if the tenancy and continued.'

In view of this provision, it must follow that if defendant No. 1 succeeds in establishing his status as a lawful sub-tenant of the suit premises from a point of time prior to time prior to 13-2-1948 when the present Bombay Rent Act came into force, then it must follow that he was a lawful sub-tenant in respect of the suit premises. If his occupation of the suit premises continued thereafter, the lawful character of his sub-tenancy will be deemed to have been continued thereafter. It may be that by virtue of the provisions of the said section 14 of the Bombay Rent Act, instead of being a mere subtenant, he would be in fact entitled to claim direct tenancy from the owners of the building; but in no event defendant No. 1 could be regarded as a trespasser on the suit premises merely because Ayohanoff ceased to be the tenant.

10. I will first deal with the question as to whether the initial creation of sub-tenancy in favour of Abdulla, the father of defendant No. 1, is established by defendant No. 1 or not. The most important evident in this connection are the 4 receipts executed by Ayohanoff in favour of Abdulla. They form part of Exh. 10 which contains the bunch of the rent receipts and a letter relied upon by defendant No. 1. For reasons which are somewhat unintelligible for me, all these rent receipts have been thus clubbed and stringed together by the learned Judge in a bunch of receipts which entire bunch has been marked as 'Exhibit 10' although they are executed by different persons, and although they relate to different periods.

Out of the 4 receipts executed by Ayohanoff, the first is a Kachha receipt dated 6-6-1949. It is for the sum of Rs. 103/-. The receipt mentions that this is the sum received from Abdulla Ayub, being the rent for five months from January to May 1949. The rent for five months should have been Rs. 100/- but it mentions that it is inclusive of something else. The receipt states that pucca receipt is to follow. Evidently, the amount of Rs. 103/- includes certain other charges such as electricity charges. No argument was even advanced before me that the receipt is not duly proved or that the absence of any word after the word 'inclusive' in any way falsifies the receipt. The second receipt purports to have been executed by Ayohanoff on his own letter-head. It is dated 7th January, 1949. The third receipt in the bunch Exh. 10 is dated 7th January, 1949. It is signed by Ayohanoff. It is a receipt for the sum of Rs. 385/-. The receipt mentions that this is the amount of rent for the room and kitchen in Dadina building. The period mentioned is from May 1947 till the end of December 1948, being the rent for about 18 1/2 months. The tenant's name mentioned is Mr. Abdul Ayub. The fourth receipt in the bunch Exh. 10 is dated 12-5-1947. The receipt is for the sum of Rs. 710/- being the rent for the last 37 months. The receipt mentions that the rent for the first 6 months is at Rs. 16/- p.m. and for the remaining 31 months the rent is Rs. 20/- p.m. The rent is received from Abdulla. The rent receipt though it is executed by none other than Abraham Ayohanoff is in fact written on the letter-head of Haji Wali Mohamed Haji Gani Motiwala who himself gave evidence in this suit as D.W. No. 2 and who has proved all the said receipt executed by Abraham Ayohanoff. The next document in the bunch Exh. 10 is dated 14th February, 1947. This is not a receipt for rent. In fact it is a letter written by Ayohanoff addressed to Abdul Ayub demanding arrears of rent and requesting Abdul Ayub to send at least Rs. 1000/-, on account, towards the rent. The relevance of the letter is only this much, viz. that the fact that Abdul Ayub Gani was his sub-tenant is recognised by Ayohanoff by the said letter. If the said 5 documents are proved, no room can be left for doubt that Abdul Ayub Gani was the sub-tenant in respect of the suit premises and was paying Rs. 20/- p.m. for the same as rent till 12-5-1947.

11. The only question would then be whether these receipts have been proved. One has only to pursue the evidence of Haji Vali Mohamed Haji Gani Motiwala to be satisfied that these 5 documents are genuine documents and they have been duly proved by the evidence of the said witness. The witness is 72 year's old. The witness has stated that he was himself a partner in the business of Abdul Ayub and that they lived in a room of Dadina building at Yusuf Meherali Road. I will presently point out that there is evidence on record to the effect that Dadina Building is none other than the present Navnidhan Bhuvan. The witness has stated that sometimes he himself used to pay rent on behalf of the father of original defendant No. 1 when the latter happened to have gone to his native place. The four documents referred to above were signed by Ayohanoff in his presence. The witness has identified the handwriting and the signature of Ayohanoff on the said documents.

The authenticity of the evidence of this witness can be gathered from the fact that one of the receipts is executed by Abraham Ayohanoff on the letter-head of this very witness. The receipt shows that it is executed on the letter-head of Haji Vali Mohamed Haji Gani Motiwala. Ayohanoff's signature on this document is identical as the signature on the other four documents. There is thus the indication of the authenticity of the evidence of this witness. All the four receipts are thus duly proved.

Nothing has come out of the cross examination of this witness which would falsify his evidence in the slightest possible manner. It is true that he has not been able to produce the record showing his partnership with Abdul Ayub; but from the very nature of things the transactions are of the period nearly 30 years before he gave evidence in the Court. He was 72 years of age in the year 1977. It can not be expected that he would get all the record after all these years. It is not as if the business is continuing. His partnership with Abdul Ayub had come to an end long before the date of the suit.

The witness deposed not only to the receipt but also to the occupation by defendant No. 1 of the suit premises. Nothing is brought in his cross-examination by virtue of which his evidence can be said to have been rendered incredible or unreliable. Even assuming that his direct oral evidence relating to the sub-tenancy of Abdul Ayub could not be taken into consideration for the present, the fact remains that the four documents proved by him go a long way to prove the sub-tenancy of Abdul Ayub because it corroborates his own evidence.

12. Mysteriously enough the learned trial Judge who has proceeded not only to disbelieve the evidence of defendant No. 1 in general but has chosen to disregard the evidence of this witness in particular has, strangely enough done in a somewhat bizarre manner. What he has done is that the entire evidence of this witness is ignored by him, and along with that evidence even the 4 documents which form part of the bunch Exh. 10 have been totally ignored and disregarded by him. I repeatedly asked the learned Counsel for the plaintiff appearing before me as to what was the explanation for ignoring this evidence. The learned Counsel was fair enough to state that explanation for this she had none.The next witness of defendant No. 1 Sobhagchand. The rent receipt given by Sobhagchand to defendant No. 1 which proved his sub-tenancy in respect of the suit premises have been disbelieved and discredited by the learned Judge; there may perhaps exist some justification for that view, at least prima facie. I will presently discuss that aspect of the evidence. But I am at loss to understand as to what was the justification for the learned Judge to ignore the said 4 rent receipts, which form the under-pinning of the case of defendant No. 1, and to ignore the evidence of D.W. 1 Rajmal Shah whose evidence as I see is irreproachable. To my mind, the judgment of the learned Judge has become very much vulnerable by virtue of this fact alone.

13. Let me now proceed to the other documentary evidence led by defendant No. 1 to prove his lawful sub-tenancy in respect of the suit premises. There are other 23 rent receipts produced by defendant No. 1. They were exhibited by the learned Judge in wholesale manner by stringing all of them together along with the other 4 earlier documents executed by Ayohanoff as Exh. 10. The original receipts were produced by defendant No. 1. Along with original receipts even carbon copies of the same were also produced. All of them were allowed by the learned Judge to go on the record in an omnibus manner. Now these rent receipts purport to have been executed by Sobhagchand, D.W. 3. This Sobhagchand is the person who claims to have taken the assignment of the business of Ayohanoff. Simultaneously with the assignment, he also get the rent bill in respect of the said tenement transferred to his name by the owner of the building. The evidence of this witness goes to show that since Abdul Ayub was already the sub-tenant in respect of the suit premises, witness Sobhagchand had no other alternative but to accept him as his own sub-tenant also. The witness state that he received rent and other charges from defendant No. 1 on various times and that he executed receipts in favour of defendant No. 1 in that behalf in the name of Abdulla. Since the receipts are in his handwriting and since he has admitted his handwriting as well as signature, it must be held that the receipts are duly proved. Apart from proving the said receipts, the witness has deposed to the fact that defendant No. 1 had been occupying the suit premises during all the time that he was in occupation of the remaining portion of the tenement as a tenant of the same.

The fact that these receipts are duly proved in the eyes of law is not disputed before me by the learned Counsel for the plaintiff Miss Nichani, though the learned trial Judge was sceptical even about the fact. However, she strenuously contended that the evidentiary value of the receipts was nil because those receipts could as well have been fabricated later on and must have been fabricated some time after 1964. She contended that the evidence of the witness Sobhagchand as a whole was so much full of contradictions that it was impossible to rely upon his evidence and to hold that the case of defendant No. 1 relating to his sub-tenancy or occupation of the suit premises was proved by his evidence.

For this contention she was no doubt fully supported by the judgment of the learned trial Judge. I will, therefore, firstly deal with that part of the judgment of the learned Judge dealing with these receipts in particular and the evidence of Sobhagchand in general.

14. The first reason why the receipts were condemned as fabricated receipts was that according to the learned Advocate for the plaintiff in the lower Court, these receipts saw the light of the day only after the year 1964. Contention was that in the earlier two suits filed by defendant No. 1 these receipts were never produced by defendant No. 1 (plaintiff in those suits). Contention further was that these receipts would have formed the gravamen of the plaintiff's evidence in that suit and keeping those receipts back from that Court was something unintelligible unless the factual position was that the receipts were not fabricated till that time but came to be fabricated some time later.

This contention which was re-agitated before me by Miss Nichani has been rejected even by the learned Judge who has gone to quite some length to hold otherwise in favour of the plaintiff even ignoring the important evidence of defendant No. 1 as mentioned above and rightly so. In the first place, this contention is wholly misplaced and is factually incorrect. Even a cursory glance at the list of documents annexed to the plaint filed by defendant No. 1 against A. Manoharlal & Co., (Suit No. 2998/64) is enough to show that on 15th June, 1964 when that suit was filed these receipts were very much referred to by the plaintiff as the documents which he intended to rely upon in the suit. The contention that these rent receipts saw the light of the day for the first time after the year 1964 is, therefore, manifestly a baseless contention. The reason why this contention was urged is that there is an order passed by the learned Judge Shri Vimadalal (as he then was) on a Notice of Motion in the suit in which order he has directed that Receiver should be appointed in respect of the suit property and that present defendant No. 1 be appointed as the Receiver's agent The entire contention, based upon this order, is that if these rent receipts were produced by the plaintiff in that suit such an order would not have been passed by the learned Judge. I, for one, completely fail to understand as to how such an argument can even be advanced. The contention has just got to be stated to be rejected and to my mind, the learned Judge was very much right in rejecting the same.

15. The second reason urged before me and accepted by the learned Judge for disbelieving the rent receipts and for holding that possibly they were fabricated documents is that though the rent receipts as such are duly proved, what was produced in the Court were not merely the rent receipts but also the carbon copies of some of them, some of which carbon copies have even been signed on a revenue stamp. The learned Judge has analysed as to which of the original receipts have been filed along with the carbon copies and which of the carbon copies have been signed either with or without the revenue stamp. It is unnecessary for me to refer to the analysis of these various receipts. It is not disputed before me by the learned Counsel for the appellant that factually this position is correct and the bunch of the receipts marked at Exhibit 10 does include, along with original receipts, the carbon copies of some of them, some of which are signed either on a revenue stamp or without revenue stamp. But the question is; can it be said that on this account the original receipts which have been produced and duly proved by Sobhagchand are fabricated receipts ?

To answer this question, it is necessary in the first instance as to see whether any explanation was called for from Sobhagchand as regards the production of these carbon copies by defendant No. 1. Amazingly enough, not only Sobhagchand but even defendant No. 1 has not been asked a single question upon the apparent anomaly that defendant No. 1, who claims to have received those receipts from Sobhagchand, produced not only the receipts which would have been in his custody but also the carbon copies which normally should have been in the custody of Sobhagchand. Now it is not inconceivable that on occasions a person giving receipt for a payment may also part with the carbon copies of the receipt. It is not difficult to conceive of circumstances in which such eventuality becomes possible. As I put across to Miss Nichani, in a given circumstance it might so happen that although the original receipt was signed and even sent by Sobhagchand to defendant No. 1, defendant No. 1 initially did not receive the same and he enquired from Sobhagchand about the receipt. In such a case, a person like Sobhagchand who is required to give the receipt for the rent might sign the carbon copy by putting a revenue stamp upon the carbon copy and signing upon the same and may pass it on to the recipient as a duplicate receipt because the first receipt was presumably misplaced. Afterwards it might so happen that the original receipt in fact came to be delivered to the tenant subsequently in which case the tenant would be having two receipts for the same payment and both of them may lie in his custody. I mentioned this as only one of the many circumstances which could be thought of and conceived of as to why even a signed carbon copy of the receipt of rent might have been delivered to the tenant by the landlord. It is no doubt an imaginary situation for which no evidence exists; but it does not purport to be the real circumstance in the present case. It is mentioned only as an illustration of a circumstance in which a carbon copy of the receipt may be signed and delivered by the landlord to the tenant as a duplicate receipt. It will depend upon the facts and evidence in each case as to why such a signed carbon copy of the receipt came to be parted with by the landlord in favour of the tenant. Point is that if the plaintiff wanted to rely upon this circumstance, which no doubt is an anomalous circumstance, it was absolutely necessary for the plaintiff to cross-examine not only the defendant but also Sobhagchand with a view to elicit the truth and reality from which this anomaly stemmed. Astonishingly enough, neither defendant No. 1 nor defendant No. 2 nor Sobhagchand has been asked a single question on this point and this circumstance is being placed before the Court only by way of argument. This is no doubt allowing unfairness being practiced by one party upon the other and I see no justification why the learned Judge should have fallen a prey to such unfairness.

In this connection, it is significant to note that the cross-examination of Sobhagchand in particular has been carried out more poignantly and frequently and at a greater length by the learned Judge himself rather than by the learned Advocate for the plaintiff. I find that the cross-examination by the learned Advocate of the plaintiff of the witness Sobhagchand is much shorter that the examination by the Court of the said witness, most of which examination smacks of nothing less than cross-examination. I do not wish to blame the learned Judge for subjecting the witness to a grueling cross-examination himself. Whatever may be the general law on this point under the Evidence Act, and under the Civil Procedure Code, I, for one, wholly welcome such efforts on the part of the Court to see to it that truth is elicited from the witness. I, for one, subscribe to the opinion that the days when the courts were required to do the passive duty of determining between the two parties as to who is telling the lesser of the lies have gone by. Those were the days when courts used to subscribe to the theory that everyone should be for himself and may devil look after the hindmost. Such a belief stems more from the laissez-fair philosophy. The time has changed and ought to change I do not, in the least, object to the learned Judge embarking upon the job of eliciting truth from the witness if the learned Judge finds that the Counsel for the particular party is unequal to that task. But the point that I am stressing is that even though the learned Judge has taken special efforts to elicit as much of truth from the witness as is possible, I find the efforts to have been restricted to eliciting the truth in favour of the plaintiff and not against the plaintiff. If these receipts are to be discredited because the carbon copies of the same are also produced on record, it was necessary for the learned Judge to subject the witness concerned to cross-examination on this point if the Advocate concerned has filed in his duty in this behalf. But to condemn the witness and his evidence merely because no explanation is given by him on this phenomenon without his being given the opportunity to give the explanation is unfairness and I believe that there should be no difference of opinion from any quarters that in the ultimate analysis justice and fairness must permeate through every stage and part of judicial process.

16. However, it was argued before me that the evidence of Sobhagchand has got to be disbelieved also for some other reasons.

The first of these reasons was the statement of Sobhagachand in his evidence to the effect that he had never seen Abdula Ayub. He further stated that Abdula Ayub never paid him any rent. The learned Counsel for the plaintiff rightly pointed out to me that if this was the evidence of Sobhagchand, that evidence is falsified not only by its inherent probabilities but also by the evidence of the other defence witnesses. Reference in this connection is made to the evidence of Jayantilal Shah who was working with Haji Ali Abdul Ayub and 25 other persons. Admittedly Sobhagchand is his sister's son. In reply to a question asked (by the Court) the said witness has stated that when Sobhagchand was a tenant in respect of the suit tenement, Abdul Ayub did stay in the premises. If this is the position, it is certainly an incongruous statement to be made by Sobhagchand that he head never as much as seen Abdul Ayub or that he never paid rent to him.

The difficulty about this argument, however, is that Sobhagchand has not stated unequivocally that he did not receive rent from Abdula Ayub. After having made such a statement in the first place, in another place the witness had gone on record to state voluntarily that Abdul Gani always paid rent and that he, the witness, used to issue rent receipt to Abdulla. If the later statement is correct, then his earlier statement to the effect that he had never seen Abdulla or that he never received rent from Abdulla has got to be held to be a mistaken statement.

17. The next ground on which Sobhagchand's evidence is sought to be discreded is that he has failed to produce before the Court the Deed of Assignment by which he took over the business of Ayohanoff or even a copy of the Deed of Assignment by which he assigned his own business to A. Manoharlal & Co. Contention was that this deed of assignment must have been with Sobhagchand and the fact that he was not producing the same spelt that there must have some averments in the deed of assignment which were inconvenient to defendant No. 1.

As regards this argument, the view taken by the learned Judge is somewhat curious. The learned Judge has not failed to notice that in the plaint filed by defendant No. 1 against A. Manoharlal & Co., a copy of the deed of assignment executed by Ayohanoff in favour of Sobhagchand is annexed as Exhibit B. The entire plaint along with the annexure thereto has been exhibited in this suit as Exhibit 5. The learned Judge has taken the view that the said plaint was used by the learned Advocate for the plaintiff in the trial Court for the purpose of cross-examination of defendant No. 1 and his witnesses. Further, according to the learned Judge, the entire plaint in the said suit (Suit No. 2998/64) along with the documents annexed to the same as exhibits have gone on record by common consent in this suit. It was, therefore, contended that it was not open for the plaintiff to contend that the copy of deed of assignment executed by Ayohanoff in favour of Sobhagchand should not be looked into by the Court. In the said deed of assignment, a copy of which is produced before the Court in the manner mentioned above, there is an un-equivocal averment that the suit premises were in possession of Abdulla as a sub-tenant and that Abdulla was paying monthly rent of Rs. 20/- for the same. But surprisingly enough, after having held that the copy of the deed of assignment was admissible in evidence, the learned Judge refused to look at it. If the averments in the deed of assignment are evidence in the suit, then it goes without saying that they serve as the strongest piece of evidence for defendant No. 1 to prove that Abdulla was a sub-tenant of the suit premises from a point of time much prior to 1948. Moreover, that evidence will go a long way to corroborate and substantiate the oral evidence of the various defence witnesses including Sobhagchand.

18. But I may mention this circumstance only with a view to high light the amazing manner in which the learned Judge has dealt with and approached this entire case and the evidence therein. I have my doubts as to whether the deed of assignment which is produced as annexure to defendant No. 1's plaint in the earlier suit against A. Manoharlal & Co., could be read as evidence in the present suit at all. In the first place, the learned Judge is not right in observing that the plaintiff has made use of this copy of the deed of assignment at the time of cross-examination of defendant No. 1 or any of his witnesses. I repeatedly asked the learned Counsel for the defendant as to from where the learned Judge got this information that the copy of the said deed of assignment was used by the plaintiff for the purpose of cross-examination of defendant No. 1 or his witnesses. The learned Counsel as well as the learned Advocate for the defendant was fair and frank enough to concede that this was not the correct position. It is true that the plaint in the earlier suit against A. Manoharlal & Co., was used by the plaintiff for the purpose of cross-examination of defendant's witnesses. But the deed of assignment which was only an annexure to the plaint as such was not used for such cross-examination. Further, I have my own doubt as to whether merely because the entire plaint is allowed to go in evidence by consent, the averments made in one of the annexures to the plaint should be held as proved.

19. Moreover, I generally agree with Miss Nichani when she argued that deed of assignment and a copy of the deed of assignment must have been there with Sobhagchand. To this extent, I agree with her. But Sobhagchand has given the reason that at that time when he gave the evidence in the Court, the two deeds of assignment were not with him. Now it is difficult to believe as to why the witness must be held to be a liar because he says so. The witness has not stated that he did not have the deed of assignment with him. The various reasons advanced by the learned Counsel for contending that the deeds must be with him need not be examined at all. The witness says that the deeds were lying with his brother and some-how or the other he could not lay his hand upon them at the particular point of time. So far as the earlier deed executed by Ayahonoff was concerned. His contention need not be disbelieved at all because that was executed away back in the year 1949 and when Sobhagchand has washed his hands of the entire business and the premises in question, it is understandable that after such lapse of nearly 28 years he had not bothered to keep the said document safely and tightly in his custody. But even in respect of the subsequent document which is of the year 1960, the position would not be much different. The evidence was recorded in the year 1977 and the document was of the year 1960 at the latest. If this was the position and if the witness did not care to bother about the document after the lapse of 17 years his act could not be said to be un-understandable.

But what needs be noted in this case, further is that it is not defendant No. 1 who is refraining from production of the document. If there is a failure for non-production of document, the failure is on the part of Sobhagchand. I have my own doubt as to how far defendant No. 1 can be blamed for want of co-operation on the part of his witness Sobhagchand in the matter of production of the said document.

20. But even that apart, it is not as if that in the instant case there is any affirmative or position evidence to show that deeds of assignment in question contained any averment to the effect that present defendant No. 1 or his father Abdulla was mere licensee or even a trespasser in the suit premises. If the contention was that right from the year 1949 when Ayohanoff assigned the suit tenement to Sobhagchand, Abdulla was in possession of the suit premises and it was mentioned in the deed of assignment that he was in possession of the same as a trespasser and it was further mentioned in the deed of assignment executed in favour of A. Manoharlal & Co. that the occupation of defendant No. 1 in the suit premises was that of a trespasser, then obviously in those 28 years defendant No. 1 had acquired title to the suit premises by an adverse possession. From the nature of things, therefore, it is inconceivable that any such averment would find place in the deed of assignment. If the averment in the deed of assignment was to the effect that Abdulla or defendant No. 1 was only a licensee in the suit premises, such an averment, would no doubt be an important piece of evidence for the plaintiff. But what is to be noted is that it is not as if that plaintiff himself could not have got hold of the deed of assignment. He could as well got the information from A. Manoharlal & Co., as regards the contents of the deed of assignment. The plaintiff has stated in Para 10 of his evidence that he had met the previous tenant Ayashiram, owner of A. Manoharlal & Co., and that the latter had told him that present defendant No. 1 was not vacating the room. Suggestion, therefore, is that present defendant No. 1 was, according to A Manoharalal & Co., a trespasser in the suit premises. If this was the position, then there is no reason why A. Manoharlal & Co., should not have been examined by the plaintiff at least for production of the deed of assignment if the deed of assignment contained an averment to the effect that present defendant No. 1 was nothing but a licensee or a tenant in the suit premises. I make it clear that in this connection I am not trying to put the burden of proving the want of title of defendant No. 1 upon the plaintiff. I am of the firm belief that the onus in this connection lies and continues to lie upon defendant No. 1 only. I am only on the question of adverse inference which is sought to be raised by the plaintiff merely because the defendant's witness has failed to produce the deed of assignment. If any adverse inference has got to be raised, it would become very much weaker if the Court finds that the document which could have been produced by the defendant could have been produced by the plaintiff as well. What is to be noted is that defendant No. 1 had dispute not only with the present plaintiff but also with A. Manoharlal & Co. It is not as if, therefore, that there was any difficulty in the way of the plaintiff in requiring A. Manoharlal & Co. to produce the said deed of assignment.

21. That apart, question remains as to whether if any adverse inference has to be raised, what should be the nature of the adverse inference. In case Sobhagchand was telling lies when he stated that he could not lay his hand over the particular deed of assignment, the failure on his part to produce the said document may have stemmed from variety of reasons. No positive evidence is led by the plaintiff to prove that any such averment, as would be in favour of the plaintiff, did find place in the said deed of assignment. The Court will, therefore, have to see as to what would be the nature of the adverse inference that could be justifiably raised against the witness, and against defendant No. 1 ultimately, on account of the failure on the part of the witness to produce the document. The argument relating to adverse inference remains an argument in the air.

22. Incidentally, I may refer to another interesting aspect of the argument advanced by Miss Nichani on behalf of defendant No. 1. Her initial line of argument had been that Sobhagchand must not have been a tenant of these premises at all. In support of this line argument; she had pointed out that Sobhagchand did not even know the name of the building at present or in the year 1949. She referred to the evidence of the other defence witness Rajmal Chathurbhai Shah (defendant No. 2) who has stated that in or about the year 1951-52, the suit premises were in the building which was known as 'Dadina Building'. Miss Nichani contended that there is no evidence led by the plaintiff to show that the present building which is known as 'Navnidhan Bhuvan' is the same as Dadina Building referred to by defendant No. 2. The rent receipts given by Ayohanoff and subsequently by Sobhagchand all refer to Dadina Building. Contention, therefore, was that defendant No. 1 must have been occupation of some other premises and that he has been fastening his talons on the suit premises by practising fraud upon the Court. I must state that this argument was subsequently given up by Miss Nichani herself when it was pointed out that there was abundant evidence on record to show that Dadina Building and the present Navnidhan Bhuvan is one and the same building. The other witnesses have referred to this position in the Examination-in-Chief and they have not been cross examined on this point. Even the rent receipts given by the custodian of the evacuee property in favour of Sobhagchand are in respect of Dadina Building and the number of the House as mentioned therein tallies exactly with the number of the House of Navnidhan Bhuvan. I mentioned to Miss Nichani that this was certainly a case where the plaintiff was trying to take advantage of apparent loop-holes in the evidence and if she insisted with her said argument about the identity of the premises, I would go to the extent of taking fresh evidence in this appeal on this question as to whether Dadina Building and present Navnidhan Bhuvan were one and the same building or not. Miss Nichani frankly stated that all that was unnecessary because the evidence on record clearly proves that the earlier name of Navnidhan Bhuvan was Dadina Building.

23. The next line of argument of Miss Nichani was that since the rent receipt was transferred by the owner of the building in favour of Sobhagchand after Ayohanoff surrendered the premises to him and likewise since the fresh rent bill was given to A Manoharlal & Co., after Sobhagchand surrendered the premises to the landlord the deed of assignment must not have been executed at all. Contention was that if the rent bills were transferred by the landlord to the new tenant, then a fresh tenancy must have been created by the landlord. If that was the position, then execution of the deed of assignment was futile

The argument is, in the first place, based upon over looking of realities. What was transferred by Ayohanoff to Sobhagchand was his business. When such business is transferred, the transferee gets right to the business and the goodwill. He also gets the tenancy right as incidental transfer. But so far as the premises are concerned, in the eyes of law, he becomes only a statutory tenant and if the transferee wants to transfer the business later on along with the tenancy right, he would not be able to do so under the Rent Act, as it then stood and as it continues to stand even today. What can be transferred by the owner of a running business is the contractual tenancy. The tenancy which is known in legal parlance as statutory tenancy cannot be transferred even by reference to the notification issued by the State Government under section 15 of the Rent Act. It is with a view to get over this difficulty that the transferees generally persuade the landlord to transfer the rent bill in their own name. It is, therefore, readily understandable that Ayohanoff executed the deed of assignment in favour of Sobhagchand and all the same Sobhachand persuaded the landlord to transfer the rent bill in his own name. Likewise, it is readily understandable that Sobhagchand executed a deed of assignment in favour of A. Manoharlal & Co., as deposed to by him, in his evidence but all the same, A. Manoharlal & Co., persuaded the landlord (present defendant No. 3) to transfer the rent bill to the name of A. Manoharlal & Co. The fact that the landlord of the building transferred the rent bill to the name of the transferee does not mean that there existed no deed of assignment executed by the assignor or the assignee.

The argument that there must not have been any deed of assignment was made by Miss Nichani with a view to persuade me to take a view that the evidence of Sobhagchand was nothing but tissues of lies. But she did not realise the fact that this argument cuts both ways. If it is held that there existed no need of assignment, her argument that adverse inference should be drawn against defendant No. 1 for non-production of the deed of assignment is an incongruous argument.

For all these reasons, I must state that the arguments aiming at proving that everything stated by Sobhagchand must be false have not made much of a headway. I am of the opinion that the evidence of Sobhagchand need not be totally discarded on this ground.

24. All the same, I am prepared to take the view that on account of certain discrepancies and contradictions in the evidence of Sobhagchand, his evidence should not be strongly relied upon in favour of defendant No. 1. I am prepared to go even to the extent of holding, for the sake of argument, that his evidence should be totally kept aside while considering the evidence of defendant No. 1. Fact, however, remains that there is more than abundant evidence in record to show that :

(a) defendant No. 1's father had been inducted by Ayohanoff in the suit premises as sub-tenant on the same for the monthly rental of Rs. 20/-; and

(b) he continued to be the sub-tenant even after Ayohanoff left the premises.

For this position, there is the evidence of defendant No. 2 Rajmal Shah as also Haji Vali Mohamed Haji Gani Motiwala (D.W. 2), the evidence of Jayantilal Mangalchand Shah (D.W. 4) and also the evidence of Vadilal Khojalal Parikh (D.W. 6).

It is unnecessary for me to examine their evidence in detail, because nothing was brought to my notice by virtue of which it could be said that the evidence given by them in the Examination-in-Chief to prove that defendant No. 1 had been occupying the suit premises as a sub-tenant has been set at naught by anything stated by them in the cross-examination.

25. But the more important thing is that evidence of all these witnesses stands strongly corroborated by three documents which go to show that defendant No. 1 had been at least occupying the suit premises after the year 1949. The first document is the Passport (Exh. 1) held by defendant No. 1. The Passport was issued in the year 1954. The Passport mentions the address of defendant No. 1 and the address is Dadina Building. Dhanji Street, Bombay. As mentioned above, it is admitted that Dadina Building is none other than the building now known as Navnidhan Bhuvan. The second set of documents are the six assessment orders passed by the Income tax authorities. The assessment year in respect of the first order is 1963-64. This means that the accounting year must have been 1962-63. The assessee therein is defendant No. 1 and the address of defendant No. 1 shown therein is 313, M.B. Road, Bombay (i.e. Masjid Bunder Road, Bombay). There is no dispute that 313, M.B. Road is the number of the suit premises. It is, thus, clear that at least in the year 1962-63 defendant No. 1 was in occupation of the suit premises. Similar is the position of the subsequent assessment orders.

26. Very strong objection was taken by Miss Nichani to the above inference arising out of the Passport and the assessment orders. She contended that the endorsement on the Passport regarding the address of defendant No. 1 and the address of defendant No. 1 mentioned in the assessment order would not prove that defendant No. 1 was a sub-tenant of the suit premises. I fail to understand as to why such an argument is even made by the learned Counsel. It is nobody's contention that the fact that the said address was mentioned on the passport or on the assessment order proved that defendant No. 1 was a sub-tenant of the suit premises. Point is that those pieces of evidence go a long way to prove that defendant No. 1 was at least in occupation of the suit premises in the year 1954 and in the year 1962-63.

But the further point is that the fact that defendant No. 1 has been in occupation of the suit premises from 1960 onwards cannot be disputed by the plaintiff at all. In fact it is the plaintiff's own case that defendant No. 1 had been in occupation of the suit premises in the teeth of the opposition of A. Manoharlal & Co. The plaintiff has stated in so many words that the owner of A Manoharlal & Co., had informed this fact to the plaintiff. I will presently deal with the question as to whether it was not necessary for the plaintiff to examine the Proprietor of A. Manoharlal & Co., or for the matter of that, even defendant No. 3. But the point that needs be noted at this stage is that it was because defendant No. 1 had been in occupation of the suit premises even when A. Manoharlala & Co., took the assignment of Sobhagchand that the dispute started between A. Manoharlal & Co. and defendant No. 1. That was the reason why defendant No. 1 was required to file a suit the plaintiff against A. Manoharlala & Co. No doubt when the present suit was filed by the plaintiff against defendant No. 1, defendant No. 1 found it unnecessary to prosecute the said suit and I am informed that the said suit has been withdrawn. But the very averments made in the plaint in the said suit by the plaintiff and the evidence given by him for the reasons why he had filed the said suit against the defendant shows that it is not disputed by the plaintiff that defendant No. 1 has been in occupation of the premises at least from the time when A. Manoharlal & Co., went into occupation of the tenement.

27. What then is the total picture ?

The comprehensive picture is :

(1) The suit tenement was lawfully occupied by the father of defendant No. 1 Abdulla Ayub at least from the year 1944 as a sub-tenant of Ayohanoff;

(2) His sub-tenancy or occupation of the suit premises continued even after Ayohanoff made exit from the scene and Sobhagchand stepped in;

(3) Even discarding the evidence of Sobhagchand it must be held to have been satisfactorily established that after the death of Abdula, defendant No. 1 continued to stay in the suit premises as sub-tenant, in all probability of Sobhagchand, paying rent to him at the rate of Rs. 20/- per month. In any event he continued to occupy the premises till the year 1960 when A. Manoharlala & Co., stepped in the premises.

(4) His occupation continued even till the date of the suit.

If this is the total picture, the legal inference is irresistible that defendant No. 1 has been occupying the suit premises in his own rights as sub-tenant in respect of the suit premise. I agree with Mr. Rele, the learned Counsel for defendant No. 1, that immediately upon the determination of tenancy of Ayohanoff, Abdula who was the sub-tenant of Ayohanoff, in occupation of the suit premises became the direct tenant of the owners of the building by virtue of the provision of section 14 of the Rent Act. There are however, clear indications on record to show that none of the parties were aware of this legal position and in fact instead of choosing direct tenancy of the landlord of the building, defendant No. 1 chose to become or was reconciled to becoming the sub-tenant of Sobhagchand and was paying rent to him in his capacity as his sub-tenant.

When Sobhagchand's tenancy came to an end, once again defendant No. 1 became the direct tenant of the landlord, present defendant No. 3 once again by virtue of the self same section 14. At this time, however, A. Manoharlal & Co., appeared to have refused to recognise his sub-tenancy. It appears to be his case that defendant No. 1 was only a licensee of Sobhagchand; but even defendant No. 1 refused to submit to A. Manoharlal & Company's convenient belief that he was only a licensee in respect of the suit premises. Since defendant No. 1 did not agree to remain only as a licensee of the suit premises and since A. Manoharlal & Co., never accepted him to be its sub-tenant, it follows that provision of section 14 of the Rent Act must come into play inexorably. The position, therefore, is that present defendant No. 1 never became the sub-tenant of A. Manoharlal & Co. Immediately upon the termination of the tenancy of Sobhagchand, defendant No. 1 became a direct tenant of the owner of the building, present defendant No. 3. The present plaintiff, therefore, has no right whatsoever to call upon defendant No. 1 to hand over possession of the suit premises to him. The decree passed by the learned Judge in favour of the plaintiff which purports to be one for mandatory injunction but which is, in reality a decree for possession, cannot, therefore, be sustained.

Differing from the view taken by the learned Judge, I am of the opinion that plaintiff's suit must fail.

28. The appeal is, therefore, allowed. The decree passed by the learned Judge is set aside and the plaintiff's suit against defendant No. 1 is hereby dismissed with costs throughout.

The Court receiver appointed by the Court in the suit stands discharged without passing of account. The costs, charges and expenses incurred by the receiver to be paid out of the amounts in the hands of the Receiver and if any balance of the amounts remains, the same to be paid over to the defendants. If any money has been paid by the plaintiff to the Receiver, by and under the direction of the Court, the plaintiff shall be entitled to recover back the said amount from the Receiver as also the balance amount of the deposits made after meeting of the costs, charges and expenses, but not the deposits made by the plaintiff for costs, charges and expenses of the Receiver.

The Security deposit given by defendant No. 1 to be refunded to him.

The defendants state through their learned Counsel Shri Rele that the defendants shall not part with possession of the suit premises nor shall he induct any other person in the suit premises within a period of two months from today. This is without prejudice to the contentions of either of the parties that under the Rent Act, it is not open for the defendants to do any of the above acts.


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