1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.4700 OF 1992 Ismail Izak Shaikh ...Petitioner vs. 1 Smt.Jaibonisa Sayyed Sikandar (since deceased through L.Rs.) 1A Sayyed Sikandar Yakub 1B Sayyad Zamin Sikandar 1C Sayyad Shakil Sikandar 2 Smt.Subrabai Ahmed Shaikh 3 Shaikh Mohammed Ishak (since deceased through L.Rs) 3A Smt.Subrad Ahmad Shaikh 3B Smt.Shabana Yunus Shaikh 3C Kum.Rizwa Yunus Shaikh 3D Master Irphan Yunus Shaikh 3E Kum.Alia Shaikh 3F Baby Akela Yunus Shaikh 3G Mrs.Surbi Yunus Shaikh 3H Smt.Rahima Iqbal Shaikh 3I Sabha Yusuf Iqbal Shaikh 3J Naushad Iqbal Shaikh 3K Neha Iqbal Shaikh 3L Shri Shenaz Raffique Shaikh 3M Kum.Wahida Issq Shaikh 3N Kum.Kanisa Issq Shaikh 3O Yusuf Issq Shaikh 4 Yunus Izak Shaikh (since deceased through L.Rs) 4A Shabana Yunus Shaikh 4B Kum Rizwa Yunus Shaikh 4C Master Irphan Yunus Shaikh 4D Kum. Alia Shaikh 4E Baby Akela Yunus Shaikh 4F Mrs.Surbi Yunus Shaikh 5 Iqbal Issak Shaikh (since deceased through L.Rs) 5a Smt.Rahima Iqbal Shaikh 5b Sabha Yusuf Iqbal Shaikh 5c Naushad Iqbal Shaikh 5d Nena Iqbal Shaikh 2 6 Shenaz Raffique Shaikh 7 Kum. Wahida Issaq Shaikh 8 Kum. Kanisa Issaq Shaikh 9 Yunus Issaq Shaikh 10Smt.Nasima Banu Ibrahim Khan ...Respondents Mr.Prathamesh Bhargude h/f Mr.A.V.Anturkar for the petitioner Mr.G.M.Khambete for the respondent no.1(a) to 1(c). CORAM :A.S.OKA,J. DATE : SEPTEMBER 10, 2009 ORAL JUDGMENT : 1 The submissions of the learned counsel for the parties were heard on the earlier date. With a view to appreciate the submissions, it will be necessary to refer to the facts of the case in brief. 2 The present petitioner is the original plaintiff and the respondents are the original defendants. For the sake of convenience, the parties herein are hereinafter referred to with reference to their status before the trial court. The plaintiff filed a suit for declaration and injunction. The first defendant is the owner and land-lady of the suit premises more particularly described in paragraph 1 of the plaint. According to the plaintiff, his mother Shamsunnisa and his father-3 rd defendant were the tenants of the first defendant in respect of the suit premises. The plaintiff, the second defendant and fourth to ninth defendants are the 3 children of the said Shamsunnisa who died on 10 th March 1974. The first defendant filed a suit for possession of the suit premises being Suit No.981 of 1975 in the court of Small Causes. According to the plaintiff his mother Shamsunnisa was not impleaded as a party defendant to the said suit and only his father (third defendant in the present suit) was made a defendant. A decree was passed in favour of the first defendant in the said suit of the possession of the suit premises. The prayer made by the plaintiff in the present suit is for declaration that he is the tenant of the suit premises and therefore, the decree passed in suit no.981 of 1975 was not binding on him. A prayer for perpetual injunction was also made restraining the first defendant from executing the decree of possession in respect of the suit premises. In paragraph 6 of the plaint, a specific contention has been raised that the plaintiff is the tenant of the first defendant and there is a tenant-landlord relationship between the plaintiff and the first defendant. 3 The suit was contested by the first defendant by filing hss written statement. It was contended that the 3 rd defendant was all along the tenant and the said Shamsunnisa was never a tenant. Without prejudice to the said contention, it was contended that assuming that said Shamsunnisa had any right,title or interest, she had surrendered the same in favour of the 3 rd defendant under 4 a receipt dated 3 0th November 1970. The 3 rd defendant did not file any written statement. By a Judgment and decree dated 25 th October 1983, the suit was decreed. A declaration was granted that the decree obtained by the first defendant against the third defendant was not binding on the plaintiff, the defendant no.2 as well as defendant nos. 4 to 9. There was a challenge to the said decree by the first defendant. By Judgment dated 26 th August 1987, the District Court allowed the appeal and remanded the suit to the trial court. After remand a pursis was filed by the parties that no further evidence was to be adduced. By Judgment and Decree dated 20 th December 1988, the suit was decreed after remand by declaring the 5 th defendant as the tenant of the suit premises on behalf of the plaintiff and defendant nos.2, 4 to 9. A declaration was granted that the decree obtained by the first defendant in the earlier suit is not binding on the plaintiff and other defendants. It must be stated here that an application was made by the petitioner purporting to be an application under section 144 of the Code of Civil Procedure,1908 for restitution of the possession as it appears that on 25 th June 1981, the first defendant had taken possession by executing the decree for possession. By Judgment and order dated 27 th June 1981, the trial court allowed the said application and ordered the restoration of possession in favour of the plaintiff. Against the decree passed by 5 the trial court in the suit as well as against the said order of restitution, two separate appeals were preferred by the first defendant. The appeal against the order of restoration was preferred by the first defendant and one Nazim who was inducted in the suit premises by the first defendant after the execution of the decree. The said appeal has been allowed. By the impugned Judgment and decree, the decree passed by the trial court of declaration and injunction was set aside and the suit was dismissed. 4 The learned counsel for the petitioner submitted that there was evidence on record to show that the mother of the plaintiff was the tenant in respect of the suit premises along with the 3 rd defendant-father. He pointed out that the book containing counterfoils of the rent receipts were placed on record by the first defendant which shows the name of Shamsunnisa and the 3 rd defendant as joint tenants in one of the counterfoils of the rent receipt. He submitted that the said document was produced from the custody of the first defendant and there was no occasion for the plaintiff or any of the supporting defendants to tamper with the said document and to add name of the mother Shamsunnisa. He pointed out that even the rent receipt containing joint names of the 3 rd defendant and Shamsunnisa was produced which was at Exh.40. He submitted that these two documents 6 were sufficient to come to the conclusion that Shamsunnisa and 3 rd defendant were tenants. He submitted that the order of remand passed by the Appellate Court was not challenged. He submitted that the Appellate court in the impugned Judgment has committed an error by holding that there is no concept of joint tenancy under the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947. He pointed out that the Appellate Court has committed an error by holding that the 3 rd defendant was the only tenant. The learned counsel for the plaintiff submitted that the Appellate Court has committed an error by holding that on demise of the tenant, only the eldest member of the family can become a tenant under section 5 (11) (c) of the said Act. The learned counsel for the first defendant supported the impugned Judgment and decree by pointing out that there was absolutely no basis for holding that the tenancy was in the joint names of Shamsunnisa and the 3 rd defendant. He submitted that the plaintiff had knowledge of the suit filed against the 3 rd defendant. He submitted that no interference was called for. 5 I have carefully considered the submissions. As pointed out earlier, the contention raised in the suit filed by the plaintiff is that his mother Shamsunnisa who died on 10 th March 1974 was a tenant of the suit premises along with her husband-3 rd defendant. According to the 7 plaintiff, he along with defendant nos.2 and 4 to 9 were residing in the suit premises at the time of death of Shamsunnisa. It will be necessary to consider specific averments made in paragraph 6 of the plaint. The plaintiff has come out with a specific case that there is a relationship of tenant and landlord between himself and the first defendant. Paragraph 7 contains an averment that defendant no.2 as well as 4 to 9 are necessary parties being the heirs of mother. The prayer (a) of the suit which is the substantive prayer is for a declaration that the plaintiff is the tenant of the suit premises and therefore, decree passed in the suit no.981 of 1975 was not binding on him. Thus, the plaintiff has claimed a declaration in his favour that he has become the tenant on demise of his mother. It is not his case that any other heir of the deceased mother acquired tenancy right as is clear not only from the prayer (a) but from the averments made in paragraphs 6 and 7 of the plaint. 6 The plaintiff stepped into witness box. He stated that his mother and father were the tenants of the first defendant. He stated that there was only one rent receipt passed in the name of his mother. He pointed out that the first defendant filed a suit in which neither himself nor his mother was made a party and the suit was filed only against 8 the 3 rd defendant. In examination in chief, he has not specifically stated that he alone became a tenant after the demise of the mother. In the cross examination, he stated that his mother was paying rent to the first defendant but he was unable to state as to when his mother paid rent to the first defendant. He admitted that after 1975 whenever the rent was to be paid it was deposited with the court. He came out with a case that he was not knowing whether the suit no.981 of 1975 was filed by the first defendant against the third defendant. However, in the next sentence, he admitted that he himself had deposited rent for a period of 2 years in the suit no.981 of 1975 filed by the first defendant. He admitted that he did not give notice to the first defendant after demise of his mother that he has become the tenant. Apart from the plaintiff, the 5 th defendant stepped into witness box. He reiterated that his parents were the tenants. In his evidence, he identified the signature of the first defendant on the rent receipt dated 30 th November 1970 which is at Exh.40 and stated that the rent receipt stands in the joint names of the mother and the father. It is pertinent to note that the said witness did not state that he became tenant after the demise of his mother. In the cross examination, he admitted that till the 9 demise of the mother, his father was looking after the family affairs. The husband of the first defendant stepped into witness box. He was shown the said rent receipt dated 30 th November 1970 in the cross examination. He stated that the writing on the rent receipt except the name of Shamsunnisa was his own and he was present when the rent receipt was issued. He identified the signature of his wife thereon and stated that he was not aware as to who had written the name of Shamsunnisa. He was shown the counterfoil of the rent receipt showing the name of 3rd defendant and Shamsunnisa. He stated that the counter foil bears the name of Shamsunnisa and in the previous suit he did not contend that the name of Shamsunnisa was written by somebody else. 7 It must be noted here that though the trial court decreed the suit on 25 th October 1983, there was no declaration of tenancy granted in favour of the plaintiff and the only declaration granted was that the decree in the earlier is not binding on him as well on the defendant nos.2 and 4 to 9. A finding was recorded by the trial court that the plaintiff along with defendant nos.2 and 4 to 9 were lawful tenants in respect of the suit premises. It will be necessary to refer to the order of remand dated 26 th August 1987 passed by the District 10 Court in the appeal preferred by the first defendant. The operative part thereof reads thus : . The appeal is allowed . The decree passed in Civil Suit No. 1142 of 1981 is hereby set aside. Civil Suit No.1142 of 1981 is remanded to the trial court for rehearing and to record the finding as to who is the tenant of the suit premises after the death of deceased Shamsunnisa and after recording the finding on this issue, the trial Judge will decide the suit afresh and as early as possible. The record and proceedings be sent to the lower court forthwith. The parties are directed to appear before the trial Judge on 7-9-1987. In view of this costs in case. As far as the operative part is concerned, it proceeds on the assumption that the deceased Shamsunnisa was a tenant and therefore, the remand was a limited one with a specific direction to record a finding as to who is the tenant of the suit premises after the death of Shamsunnisa. In fact, a specific direction was issued to decide the issue as to who became the tenant of the suit premises after the death of deceased Shamsunnisa. The order of remand was not challenged by both the parties. 11 6 It is pertinent to note that after the remand, parties did not lead any evidence. A pursis was accordingly filed at Exh.158. On the said pursis, the heirs of Shamsunnisa excluding the defendant no.3 made signatures. The trial court has made a reference to the said pursis in paragraph 5 of the Judgment after remand. It is pertinent to note that trial court observed that in the pursis at Exh.68, the defendant nos.4 to 9 have stated that they have elected defendant no.5 as their representative-tenant. In the operative part of the decree and in particular clause 4 thereof, the trial court declared the defendant no.5 Iqbal as a tenant of the suit premises on behalf of the plaintiff, the defendant nos.2 and 4 to 9. The trial court passed a decree of declaration that the decree obtained by defendant no.1 against the defendant no.3 is not binding upon the plaintiff, the defendant 2 and the defendant nos. 4 to 9. 7 The first surprising aspect of the case is that the first defendant has not chosen to challenge the order of remand. The second aspect is that though the plaintiff had claimed a declaration in his favour that he became the tenant after demise of his mother, he accepted the decree of the trial court after remand declaring that the defendant no.5 has become tenant. 12 8 It must be reiterated here that in the plaint filed by the plaintiff, the specific case in paragraph 6 was that he was the tenant of the first defendant. The substantive prayer is of declaration that the plaintiff has become the tenant of the suit premises. Consequential prayer of injunction is based on the first prayer that the plaintiff has become the tenant of the suit premises. The fact that the plaintiff never intended to claim any relief on behalf of the defendant no.5 is clear from the statement of the plaintiff that the defendant nos.2 and 4 to 9 have been impleaded as necessary parties. Therefore, there was no occasion for the trial court to pass a decree declaring the defendant no.5 as a tenant. The plaintiff had approached the court for a specific declaration that he is the tenant of the first defendant. Unless the plaintiff succeeded in obtaining declaration, there was no occasion to pass a decree of injunction against the first defendant restraining her from executing the decree passed in the earlier suit. Strangely, the order of restitution passed by the trial court directed that the plaintiff/applicant shall be placed in possession. The plaintiff never challenged the decree of the trial court declaring the defendant no.5 as the tenant. On the contrary, from the discussion made by the Appellate Court in the impugned Judgment and order, the plaintiff seems to have 13 supported the decree. 9 As stated earlier, the entire discussion of the Appellate Court in the impugned Judgment is as regards the question whether Shamsunnisa was the tenant in respect of the suit premises. Perhaps the parties to the appeal as well as the learned District Judge have ignored the effect the order of remand passed on 27 th August 1987. The only direction issued by order of remand was to determine as to who was the tenant of the suit premises after the death of Shamsunnisa. 10 Thus, the scenario which emerges is that the plaintiff claimed exclusive tenancy in his favour, but he could not establish his case of exclusive tenancy and in fact the trial court after remand declared that the defendant no.5 was the tenant on behalf of the plaintiff and other defendants. In the deposition of the plaintiff, he has not even uttered a word that he became a tenant after the demise of Shamsunnisa. Even the defendant no.5 stepped into witness box. He did not claim that he became a tenant after his mother s demise. Unless the plaintiff was able to establish that he became tenant, there could not have been a decree passed in the suit in his favour. The relief of perpetual injunction could not have been granted unless the substantive relief of declaration of tenancy in favour of the 14 plaintiff was granted. The trial court could not have passed a decree declaring the defendant no.5 as a tenant and therefore could not have granted a decree of perpetual injunction. It is true that there is some substance in the criticism of the learned counsel for the petitioner as regards the finding recorded by the District Court that there cannot be a joint tenancy under the said Act and that only the eldest member of the family can become a tenant under section 5 (11) (C) of the said Act. 11 However, on the first principles, the plaintiff cannot succeed as after remand he seems to have virtually given up his only case that he became the tenant after demise of his mother. Therefore, it is not possible to find fault with the ultimate conclusion of the Appellate Court by which it was held that the decree of the trial court was not sustainable. There could not have been a declaration of tenancy in favour of the 5 th defendant in the suit filed by the plaintiff in which he claimed a declaration of tenancy in his favour. Though the trial court did not grant declaration of tenancy in his favour, the plaintiff-petitioner accepted the decree of declaration of tenancy in favour of the defendant no.5. It is pertinent to note that the defendant no.5 has not challenged the impugned decree of the District Court by which the decree of declaration passed in his favour was 15 set aside. 12 Hence, there is no merit in the petition and the final order passed by the Appellate Court cannot be faulted with. Writ Petition is accordingly rejected. Rule is discharged. JUDGE