Sunday, 29 October 2017

Whether other family members can claim tenancy if tenancy is in name of one family member?

In the first place I must agree with the learned Assistant Judge when he has recorded a finding that the suit premises were taken by the first petitioner in his own name and himself. It is only after some years that the second petitioner joined the first petitioner in the suit premises. The second petitioner cannot by any stretch of imagination be called a tenant of the suit premises.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 3736 of 1983

Decided On: 09.06.1988

Sudhakar G. Patil and Ors. Vs.Dinkar Shridhar Tamhankar

Hon'ble Judges/Coram:
R.A. Jahagirdar, J.
Citation: 1989 MAH R C J 69

1. The petitioner under Article 227 of the Constitution of India seeks to challenge the decree passed by the learned Extra Assistant Judge of Pune allowing Civil Appeal No. 345 of 1981. That appeal itself was from the decree of the dismissal of the suit, being Civil Suit No. 137 of 1976 by the Small Causes Court Judge of Pune. The respondent is the owner and therefore, the landlord of the suit premises which consist of a flat in a fashionable locality of Pune. That flat is in Model Co-operative Housing Society. Sometime in the year 1962 the first petitioner took the suit premises on rent in his own name. The evidence on record shows that subsequently his younger brother, who was studying at the time when the suit premises were taken on lease joined the first petitioner in the suit premises. Some years thereafter, the first petitioner, who is working with the Bank of Maharashtra, was transferred from place to place. The judgment of the appeal Court below shows that wherever the first petitioner was transferred he was provided with accommodation by the Bank. The respondent, therefore, filed a suit for possession of the suit premises on the ground that the first petitioner, his tenant, has after the coming into force of the Bombay Rents, Hotel and Lodging House Rates Control Act, hereinafter referred to as the "Bombay Rent Act", acquired alternative suitable accommodation. The said suit was dismissed by the learned trial judge.

2. The respondent preferred an appeal, being Civil Appeal No. 345 of 1981, which, as mentioned above, was allowed by the learned Extra Assistant Judge of Pune by his judgment and order dated 30th July, 1983. This decree has now been challenged by the two petitioners in this petition.

3. Mr. Sakhardande, the learned Advocate appearing in support of the petition, has argued that it was an error on the part of the Court below to hold that the lease was in the name of the first petitioner only. All the available evidence shows, according to Mr. Sakhardande, that the suit premises were taken on lease for and on behalf of the joint family of which the second petitioner is a member. Therefore, it was incumbent upon the learned Assistant Judge to take into consideration the requirement of the second petitioner who is staying in the suit premises while deciding the question of acquisition of alternative suitable accommodation.

4. In the first place I must agree with the learned Assistant Judge when he has recorded a finding that the suit premises were taken by the first petitioner in his own name and himself. It is only after some years that the second petitioner joined the first petitioner in the suit premises. The second petitioner cannot by any stretch of imagination be called a tenant of the suit premises. This has not deterred Mr. Sakhardande from arguing that since the second petitioner is a member of the joint family of the first petitioner it cannot be said that the first petitioner has acquired alternative suitable accommodation. This argument is based upon the fact that the first petitioner is in a transferable post and, therefore, the second petitioner cannot be expected to travel with him because he himself holds a post at Pune. The argument is apparently attractive, but on the facts of this case it cannot be accepted because it has been found by the learned Appellate Judge below that at the time of the trial of the suit in the year 1980 the first petitioner had completed the construction of his own bungalow in Pune. This has come in the evidence of the two petitioners themselves. If this is so, I do not see how one can contend that the petitioners, including the first petitioner who is the original tenant, have not acquired alternative suitable accommodation. Even if the second petitioner is a member of the family of the first petitioner, he will naturally be moving with the first petitioner into the newly constructed bungalow. A presumption, though a mild one, is raised in all such cases that whenever a tenant acquires or builds alternative accommodation it is suitable to the said tenant. On this ground also I am not inclined to accept the contentions raised on behalf of the petitioners.

5. In the result, the petition fails. Rule is discharged with costs.

6. However, by consent, the decree passed in Civil Appeal No. 345 of 1981 shall not be executed before 1st of January, 1989 if each of the petitioners files in this Court, on or before 14th of June, 1988, an affidavit:

(i) affirming that they alone are in occupation of the suit premises and no other person is in possession thereof as a licensee or a subtenant or in any other capacity whatsoever;

(ii) giving an undertaking to this Court, which undertaking shall be deemed, to have been accepted after the affidavits are filed, that they will give vacant and peaceful possession of the suit premises to the respondent on or before 31st December, 1988.

(iii) giving a further undertaking that they will not induct any other person in the suit premises in any capacity whatsoever.

In case the affidavits as aforesaid are not filed on or before 24th June, 1988 or in case there is a breach of the undertaking given in Clause (iii) above the decree shall become executable immediately. The petitioner will also be liable for contempt of Court for perjury, as the case may be.



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