RAMESHCHANDRA DAULAL SONI & ANR. versus DEVICHAND HIRALAL GANDHI (DEAD) THR. LRS. SMT. GULABBAI DEVICHAND GANDHI & ORS.

Citation: [2019] 17 S.C.R. 46 · Decided: 14-11-2019 · Supreme Court of India · Bench: R. BANUMATHI, A.S. BOPANNA, HRISHIKESH ROY · Disposal: Dismissed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 17 S.C.R.
46
RAMESHCHANDRA DAULAL SONI & ANR.
v.
DEVICHAND HIRALAL GANDHI (DEAD) THR. LRS.
SMT. GULABBAI DEVICHAND GANDHI & ORS.
(Civil Appeal No. 9834 of 2016)
NOVEMBER 14, 2019
[R. BANUMATHI, A. S. BOPANNA AND
HRISHIKESH ROY, JJ.]
Bombay Rents, Hotels & Lodging Houses Rates Control Act,
1947 – s.5(11) – Eviction – Plaintiff purchased a property – As
on the date of purchase the predecessor of defendants No.1 and
2 was the tenant of the said property – Defendants No.1 and 2
thereafter continued as the tenants – The plaintiff informed the
defendants No.1 and 2 through the communication dated
06.12.1986 about the purchase and had sought for payment of the
rents – Defendants failed to pay the same – The plaintiff termed
the defendants No.1 and 2 as defaulters and instituted a regular
civil suit seeking eviction – Trial Court decreed the suit and directed
the defendants to handover actual physical possession of the suit
property – Aggrieved, defendants No.1 and 2 filed appeal and the
same was dismissed by the Appellate Court – The Revision
Applications were also dismissed by the High Court – Defendants
No.1 and 2 contended that in view of the death of the original
tenant, two sisters who were also the legal heirs but were not made
defendants – It was also contended by all the legal heirs that the
suit property was an agricultural property and such rights inter-se
between the parties were governed under the Maharashtra Tenancy
and Agricultural Lands Act (MTAL Act) and the Civil Court did
not have the jurisdiction – On appeal, held: The evidence available
on record was assessed by the Trial Court as also the Appellate
Court and have recorded a finding of facts – That such a finding
was based on the oral evidence tendered and the documents that
were relied upon and marked before the Trial Court, the finding
of fact recorded cannot be considered as perverse so as to interfere
in a proceeding of the present nature – So far as two sisters of
defendants No.1 and 2 are concerned, their claim to be considered
as the tenants under the statutory tenant is a belated claim as an
   [2019] 17 S.C.R. 46
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after thought – Defendant No.1 in his evidence stated that he used
the premises for storing food grain etc., there was no reference to
the business being carried on jointly with his sisters – Further, the
said sisters did not take any steps in any of the earlier proceedings
from 1989 to 2015 to get themselves impleaded by contending that
they were proper and necessary party – Insofar, contention to the
effect that the suit property was an agricultural property, the said
contention was never raised in the suit or as to whether the issue
in the suit should be referred to the Authority under the MTAL Act
– Further, there is no document to indicate the procedure
contemplated under the MTAL Act was followed so as to conclude
that the predecessor of defendants No.1 and 2 had become landlord
of the property by operation of law so as to bar the jurisdiction
of the Civil Court – Therefore, contentions urged by the defendants
No.1 and 2 as also by all the legal heirs unsustainable.
Dismissing the appeals, the Court
HELD: 1.  The provision in Section 5(11)(c)(ii) of Bombay
Rents, Hotels & Lodging houses Rates Control Act, 1947 noted
supra is clear that the persons carrying on the business with the
statutory tenant at the time of death would be entitled to continue
as a tenant.  The second part of the said provision is that in the
absence of such member any heir of the deceased tenant as may
be decided by the Court in default of agreement, would get the
right.  In the instant case the contention being urged that the
two daughters of the deceased tenants were also entitled to be
considered as the tenants under the statutory tenant, is a belated
claim as an afterthought.  As taken note while considering the
factual aspect it has come on record that the plaintiff after having
purchased the property under a registered sale deed had issued
the notice dated 16.12.1986 as at Exhibit 80 and the trial court
has also recorded a finding that through the said notice the
plaintiff had informed the defendants No. 1 and 2 about the
purchase of the suit property.  That apart, subsequently a notice
as at Exhibit 96 was issued to the defendants No. 1 and 2
demanding the arrears of rent.  The said notice in fact had been
replied by the defendants No. 1 and 2 through the reply marked
at Exhibit 99.  Ne

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