1 fa1143.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.1143 OF 1998 Mohan Ramkhilavan Pasi & Anr. ...Appellants vs. Rampathy Ramraj Pasi & Anr. ...Respondents Mr.R.L.Majgaonkar for the appellant no.2 Mr.A.R.Patil, A.G.P for the respondent-State CORAM : A.S.OKA,J. DATE : APRIL 26,2011 JUDGMENT: 1 The submissions of the learned counsel for the parties were heard on the earlier date. Today, the appeal is kept for dictation of the Judgment. 2 The appellants are the original defendant nos.3 and 2 and the first respondent is the original plaintiff and the second respondent is the original first defendant. 3 According to the case of the plaintiff, he along with 3 rd defendant were in possession and occupation of the tenement more particularly described in paragraph 1 of the plaint. It is alleged that both of them were in possession of the tenement for more than 20 years prior to the date of institution of the suit. The chawl in which the original tenement was situated was taken over by the Bombay Building Repairs and Reconstruction Board for immediate demolition. It is stated in the plaint that in lieu of the tenement in the said chawl, the plaintiff and the 3 rd defendant were jointly alloted a tenement in transit camp which is more particularly described in paragraph 2 of the plaint. It is alleged that the allotment was made in September 1977. It is 2 fa1143.sxw stated that the 3rd defendant had already proceeded to his native place and had settled down there in the year 1976 and therefore, the plaintiff was in exclusive possession of the transit camp accommodation. It is alleged that in May 1984, the plaintiff and his family members had proceeded to native place in Uttar Pradesh. It is stated that the 2nd defendant illegally and highhandedly trespassed into the transit accommodation and started residing there unauthorizedly. Reliance is placed on the complaint dated 10th July 1984 filed by the plaintiff with the defendant no.1. Notice was issued on 9th August 1984 by the first respondent calling upon the plaintiff to show cause as to why action should not be taken on the ground that he has committed the breach of the terms and conditions of the tenancy. It is contended that the tenancy of the original premises was in the joint name of the plaintiff and the 3 rd defendant. It is contended that as the 3 rd defendant had long back settled down at his native place, the plaintiff was in exclusive possession of the tenement alloted to him. The Estate Manager of the 1 st defendant called upon the plaintiff to ensure that the trespasser vacates the said tenement. It is contended in the plaint that the transit accommodation is only for accommodation of the plaintiff and/or 3rd defendant till the permanent accommodation is ready. It is stated that the permanent accommodation was ready in the year 1987 and therefore, it is contended that the plaintiff is exclusively entitled to the allotment of the permanent allotment. It is submitted that the 3 rd defendant does not require the permanent accommodation. In the suit, the first prayer is for declaration that the 2nd defendant is a trespasser in the transit accommodation. A second prayer is made for passing a decree of eviction against the 2 nd defendant. The third prayer is for declaration that the plaintiff alone or 3 fa1143.sxw jointly with the 3rd defendant is entitled to permanent accommodation which is already ready. The decree for possession was sought against the 1st defendant directing the 1st defendant to hand over possession of the permanent accommodation only to the plaintiff or jointly with the 3rd defendant. 4 The 2nd defendant filed a written statement. It is contended that the 3rd defendant was the tenant of the original tenement who handed over possession of the transit camp accommodation to the 2nd defendant and that the 2nd defendant was appointed as Constituted Attorney by the 3rd defendant. It is contended that the 3rd defendant was residing in the transit accommodation along with family of the 2 nd defendant and 3 rd defendant was considering the 2 nd defendant as his younger sister. It is contended that the 2 nd defendant was in lawful possession being Constituted Attorney of the 3 rd defendant who was the only tenant in respect of the original tenement. 5 The 3 rd defendant filed a separate written statement. It was contended that the 3rd defendant was the only tenant in respect of the original premises in the chawl which was demolished. It is contended that the Eviction notice was served only in the name of the 3 rd defendant. He denied that the plaintiff and the 3rd defendant were in joint possession of the original premises. It is contended that all the correspondence has been addressed by the 1 st respondent only in the name of the 3 rd defendant. It is contended that the 2 nd defendant was residing along with him in the original tenement in the chawl. As the 3rd defendant was desirous of proceeding to his native place, he appointed the 2nd defendant as his Constituted Attorney. In short, 4 fa1143.sxw contention of the 3rd defendant is that the plaintiff has no right in respect of the original tenement and even in respect of the transit accommodation and permanent accommodation. 6 The trial Court framed various issues. The trial Court held that the plaintiff and the 3rd defendant were jointly entitled to permanent accommodation. The trial Court held that the 2nd defendant was a trespasser in respect of the suit tenement. The trial Court negatived the contention of the 3rd defendant that his son-in-law accommodated the plaintiff temporarily in the transit accommodation. The trial Court held that allotment of the transit accommodation was jointly made in favour of the plaintiff and the 3 rd defendant. The trial Court also held that the plaintiff along with the 3 rd defendant were in possession of the original tenement in the chawl. The trial Court, however, held that the 3 rd defendant was the original allottee of the original premises in the chawl. 7 The learned counsel for the appellant has taken the Court through the pleadings, notes of evidence and other documents on record. He pointed out that even the trial Court has found that the allotment of the tenement in the original chawl was only to the 3rd defendant and the plaintiff was not the original allottee. He submitted that the trial Court has completely misinterpreted the provisions of sub-section 25 of section 2 of the Maharashtra Housing and Area Development Act,1976 (hereinafter referred to as the said Act of 1976 ). He submitted that the plaintiff has no right in respect of the original tenement in the chawl. Even assuming that the plaintiff was in possession of the transit accommodation, he does not get any right in respect of 5 fa1143.sxw the transit accommodation and the permanent accommodation. He submitted that even the eviction notice was issued only in the name of the 3rd defendant. He submitted that as the 3rd defendant was the original tenant, the 2nd defendant cannot be called as a trespasser, in as much as the 2nd defendant was residing even in the original premises along with the 3rd defendant as member of his family. He submitted that the findings recorded by the trial Court are perverse. The learned counsel for the original plaintiff supported the impugned Judgment and Decree by contending that no interference is called for in the impugned Judgment and decree. 8 I have given careful consideration to the submissions. The main issue to be decided is whether the 3 rd defendant is exclusively entitled to allotment of the permanent accommodation or whether the plaintiff is entitled to permanent accommodation jointly with the 3 rd defendant. It must be stated here that there is no appeal or cross objection preferred by the original plaintiff for challenging the finding that the 3 rd defendant along with the plaintiff will be jointly entitled to the permanent accommodation. 9 The plaintiff in his deposition admitted that when he started residing in the original tenement in the chawl, the 3rd defendant was already staying there. He stated that he received a letter of allotment of the transit accommodation and he along with his family members shifted to the transit accommodation. In the cross examination, the plaintiff admitted that he was staying in the tenement in the original chawl with the permission of the 3rd defendant. He also admitted that till July 1990, the rent receipts were issued in the 6 fa1143.sxw name of the 3rd defendant. 10 The 1st defendant examined one Vijaykumar Avdhut Limaye, Estate Manager,Transit Camp, Bandra. He stated in his deposition that on the basis of the vacation notice, allotment of the transit camp accommodation is made to the persons. He stated that in the register maintained by the 1st defendant, name of the allottee is entered. He stated that the name of the allottee of the transit accommodation is shown as Mr.M.R.Passi-3rd defendant. He produced allotment register maintained by the 1st defendant. He stated that the name of the allottee is mentioned as Mr.M.R.Passi and name of the plaintiff is mentioned as an occupant. The said witness was extensively cross examined by the plaintiff, 2 nd defendant and the 3 rd defendant. 11 The 3 rd defendant also stepped into witness box. He stated that he was the tenant in respect of the original tenement in the chawl. He stated that his son-in-law Shamlal used to reside with him in the transit camp which was allotted to him. He stated that in the year 1984, he went to his native place but his son-in-law and son continued to reside in the transit camp. He stated that as the plaintiff was in need of accommodation on temporary basis on account of sickness of his wife, his son-in-law allowed plaintiff to occupy the premises for 2 to 3 months. The witness was extensively cross examined. The witness was confronted with various averments made in his written statement. He was shown a certificate at Exh.33 in his evidence. He stated that the same was issued by the Estate Manager and stated that it was a genuine document. 12 It will be necessary to make a reference to the 7 fa1143.sxw document at Exh.P-7 which is the eviction notice dated 26th June 1975 which has been issued in the names of the 3rd defendant as a tenant and the plaintiff as an occupant. Even warning notice dated 16th July 1976 at Exh.8 has been issued in the same names. 13 It must be stated here that though the 3rd defendant came out with the case that his son-in-law allowed the family of the plaintiff to stay in the transit accommodation for 2 to 3 months, when the 3rd defendant was confronted with a portion of his affidavit-in-reply filed to the notice of motion in the suit, he admitted that in the reply he stated that the plaintiff was residing with him for a period of six months. 14 Perusal of the impugned Judgment shows that the trial court has made a reference to the notices at Exh.P-7 and Exh.P-8 which incorporate the name of the 3 rd as a tenant and the name of plaintiff as an occupier. A letter was issued on 17 th December 1983 by the Estate Manager of the defendant no.1 which is addressed both to the plaintiff and the 3rd defendant by which they were called upon to make payment of arrears of rent. The receipts at Exh.15 (collectively) show that the name of the 3 rd defendant is mentioned therein as a tenant and the name of the plaintiff as an occupier. 15 As far as the letter of possession of the transit accommodation dated 28th September 1977 (Exh.P21) is concerned, the same was issued only in the name of 3 rd defendant. On perusal of the record, the trial Court found that the possession of the transit accommodation was received by the plaintiff on the basis of the said letter of possession. 8 fa1143.sxw 16 On the basis of the evidence on record, the trial Court recorded a finding that the plaintiff was also residing in the old tenement in the chawl and that the possession of the transit accommodation was taken over by the plaintiff in absence of the 3rd defendant. The case made out by the 3rd defendant was that his son-in- law allowed the family of the plaintiff to reside in the transit accommodation for 2 to 3 months. However, the son-in-law has not been examined as a witness. On the basis of the documents at Exh.P-7 and P-8 which are the notices issued by the first defendant, the trial Court came to the conclusion that the plaintiff was in possession and was residing in the suit premises. Not only the documents at Exh. P-7 and Exh.P-8, but post cards received by the plaintiff at the said address were produced and were exhibited. The ration card and identity card produced by the plaintiff bear the address of the suit premises. The said documentary evidence shows that the plaintiff was residing in the premises for sufficiently long time and therefore, the case made out by the 3rd defendant that the plaintiff was allowed to use the transit accommodation for 2 to 3 months has been rightly disbelieved by the trial Court. The trial Court has made a reference to the order passed by the Competent Authority on 3 rd December 1974 by which the eviction proceedings were dropped. In the said order, it was observed that the plaintiff has been shown as occupant of the suit structure. 17 Sub section 25 of section 2 of the said Act of 1976 reads thus : (25) Occupier includes - (a) any person who for the time being is paying or is liable to pay to the owner the rent or any portion of the rent of the land or building in respect of which such 9 fa1143.sxw rent is paid or is payable. (b) an owner in occupation of or otherwise using his land or building; (c) a rent free tenant of any land or building; (d) a licensee in occupation of any land or building; and (e) any person who is liable to pay to the owner damages for the use and occupation of any land or building. 18 After referring to the sub-section 25 of section 2 of the said Act of 1976, the learned trial Judge has held thus : It is clear from the said definition of the occupier that the said definition is inclusive definition and in the said context the plaintiff has deposed that he was paying the rent of the premises i.e. Room no.9 was the tenant thereof and plaintiff has produced 9 rent receipts at Exh.12 colly. On perusal of the said rent receipts, it is seen that the said 9 rent receipts pertain to old premises and same are in the name of defendant no.3 herein, but it is necessary to borne in mind that the rent receipts were produced from the plaintiff custody and it is not the contention of defendant no.3 that the said recent receipt were stolen in the allegation made in respect of theft, and therefore, there is no impediment in construing that the plaintiff has paid rent of the old premises in the name of defendant no.3 accordingly and plaintiff has produced the same on record at Exh.P-12 colly. Further, in the said context, section 92(2) of the MHADA 10 fa1143.sxw Act entitles the occupier for the alternate accommodation and since in view of the foregoing discussion, the plaintiff is the occupier of the suit premises though defendant no.3 is the tenant thereof, the plaintiff is entitled for the alternate accommodation along with defendant no.3 jointly in view of the provisions of section 92(2) of MHADA Act... Sub Section (2) of Section 92 of the said Act 1976 reads thus : 92 (2). in preparing the plans and estimates of the building to be reconstructed, it shall be the duty of the Board to see that all the occupiers in the building proposed to be demolished shall, as far as practicable, be provided in the reconstructed building accommodation with a floor area equivalent to their floor area in the old building. [Provided that, in the case of an occupier of a residential tenement the floor area of the accommodation in the reconstructed building, shall not be less than the 29.90 square metres and more than the 70 square metres.] (Underline added) 19 That is how a finding has been recorded that the 3rd defendant along with the plaintiff were jointly entitled to the permanent accommodation. The trial Court considered an important factual aspects viz; that in the register maintained by the first defendant, the name of the plaintiff appears along with the 3rd defendant. The learned trial Judge has made a reference to entry no.298 11 fa1143.sxw in the Field Book at Exh.35. In view of sub section 25 of section 2 r/w section 92 (2) of the said Act of 1976, a finding has been recorded by the trial Court that the plaintiff and the 3rd defendant are jointly entitled to allotment of the permanent accommodation. Looking to the sub section 2 of section 25 it is not possible to find fault with the said finding recorded by the trial Court. It must be noted here that the trial Court has passed a decree only in terms of prayer clauses (a) and (c). The trial Court has declined to pass a decree against the 2nd defendant for eviction and has granted perpetual injunction restraining the 2nd defendant from parting with possession of the transit accommodation and from creating third party interests therein. Apart from this, a declaration has been granted that plaintiff and the 3 rd defendant are jointly entitled to permanent accommodation. However, the trial Court has has granted a liberty to the first defendant to initiate eviction proceedings against the 2 nd defendant. It must be noted here that the 2 nd defendant has not established any independent right in respect of the transit accommodation or the permanent accommodation and admittedly, the 2 nd defendant claims only on the basis of power of attorney executed by the 3 rd defendant. Thus, as of today, there is no order passed directing the 2nd defendant to vacate the transit accommodation and the 1 st defendant will have to initiate appropriate proceedings in that behalf. 20 In the circumstances, it is not possible to find fault with the decree passed by the trial Court. There is no merit in the appeal and the same is accordingly dismissed with no order as to costs. JUDGE