Achratlal Vikamchand and Others vs Vishnu D. Advani

Baxi, J.—The suit which gives rise to this appeal was filed by Plaintiff 1 shekh Mahmed Miyan A. Shekh to recover possession of a house from the Respondent in the Court of the Civil Judge, Junior Division, Rajkot, alleging that the Respondent was his tenant and that the tenancy was terminated by a notice. He claimed payment of arrears of rent from 15-12-1947 i.e., from the date on which the Respondent went into possession of the house till 28-2-1949 i.e., expiry of the notice. He further claimed compensation for use and occupation of the house from 3.-3-1949 till the date of the suit. The suit as framed is one for obtaining possession of the premises from his tenant. Plaintiff 1 obtained an ex-parte decree against the Respondent and applied for its execution. In the meanwhile Plaintiffs 2, 3 and 4 i.e., the present Appellants purchased the house from Plaintiff 1 and became the assignees of the decree. The decree was set aside on the Respondent''s application and the suit was thereafter conjoined by the present Appellants who filed an amended plaint. In the amended plaint they described the Respondent as their tenant and prayed for the same reliefs when Plaintiff 1 had asked for.

The house had been requisitioned from Plaintiff l by the Rajkot State under its requisitioning law and granted by the State authorities to the Respondent in December 1947, The Respondent filed his written statement by which he denied any privity of contract between him and Plaintiff 1 or the present Appellants. He further stated that the house was allotted to him by the State and he was ordered to pay Rs. 50/ - per month as rent.

Plaintiff 1 had stated in his plaint that he wanted the house for residential purposes. The Appellants also put forward the same ground for seeking the Respondent''s eviction. The Respondent denied that the Appellants required the house bona fide for their own occupation and prayed for dismissal of the suit. It may be stated that when the suit was instituted, the Bombay Rents, Hotel and Lodging House Rates Control Act 1947 as applied to the State of Saurashtra was in force.

The Appellants are brother and members of a joint Hindu family. They own an ancestral house in Rajkot in which they lived until Appellant 1 built a small house in Jagnath plot which he was been occupying since then. The other two Appellants, however, continued to occupy the ancestral house. Their case is that there had been a partition between them and their uncle and the ancestral house was allotted to him in partition. This uncle was, however, serving in the Dharampur State at the time and, therefrom, as a matter of grace he allowed the Appellants to continue to occupy the house. He had, however, retired from service and wanted to return to Rajkot and settle there permanently and consequently the Appellants were called upon to vacate the house and it was under these circumstances that they required it for their own occupation.

The learned trial Judge held that the alleged partition was not proved. He also held that it was not proved that the Appellants'' uncle wanted to return to Rajkot and settle there. The Appellants, he found, had sold two other houses in 1948. He therefore, held that the Appellants had not proved that they required the house for their personal occupation and consequently did not enter into the question of balance of convenience. He also held that the house was governed by the Saurashtra Rent Control Act of 1950 which had replaced the Bombay Act of 1947. In the result he dismissed the Appellants'' claim for possession. However, he passed a decree against the Respondent for Rs. 736-10-8 holding that the State authorities had fixed standard rent of the house at Rs. 50/- per month. The Appellants preferred an appeal to the District Court which was dismissed and they have now referred this second appeal against the learned District Judge''s appellate decree.

Mr. Mody, Appellant 1, argued the appeal on behalf of all the Appellants and contended that the Courts below erred in holding that the partition was not proved. He had examined himself to prove the fact of the alleged partition and that his uncle wanted to return to Rajkot. But the learned Civil Judge was of the opinion that this evidence was not sufficient and the Appellants should have examined their uncle. Even if the uncle could not be examined they should have produced more authentic evidence in support of Mr. Mody''s statement. Mr. Mody argued that this was a perverse appreciation of his evidence and the Courts below should have accepted his word without requiring additional evidence to support it. The learned civil Judge had remarked in the judgment that Appellants 2 and 3 did not take any interest in the suit. Mr. Mody commented on this observation and argued that It was not necessary for all the Appellants to examine themselves in proof of their contention. It appears to me that this (sic) was only one of the elements which he weighed in appreciating Mr. Mody''s evidence. He did not mean that every Plaintiff should as a matter of examine him self. This question is entirely one of appreciation of evidence and it is not for me to disturb the concurrent findings of the Courts below on the ground that they should have appreciated the evidence differently. The Appellants have, therefore, failed to prove that they required the house for their personal occupation.

During the hearing of the appeal Mr. Mody applied for permission to lead additional evidence under Order 41, Rule 27, Code of Civil Procedure. He filed an affidavit in which he stated that they had to, vacate the house which Appellants 2 and 3 had been occupying till then and had handed it over to their uncle and that Appellants 2 and 3 had taken Anr. house on rent in the Jagnath Plot on or about 15-6-1952. He argued that although his uncle had not returned to Rajkot and consequently Appellants 2 and 3 were actually in the occupation of the house at the time of the suit, the. position was entirely changed and whatever circumstances might have been at the time of the decree of the trial Court or even at the time of the appellate decree their need for the suit house was undoubtedly genuine in view of the fact that Appellants 2 and 3 had to vacate the original house and occupy a rented house. To deny them a chance of proving these facts was, he argued tantamount to compelling them to live in a rented house or file a suit and incur avoidable delay and expense while their house was being occupied by a tenant.

I rejected the above request for recording additional evidence. There is a concurrent finding of fact that the alleged partition was not proved. Therefore the Appellants had been in occupation of their ancestral house in their undoubted right and if they surrendered it to their uncle they evidently did so to suit their own convenience and not because they were compelled to vacate it. Therefore the fact that they had gone to live in Anr. house makes no difference in the findings of the Courts below.

Mr. Mody next raised a legal objection against the dismissal of his prayer for eviction. He contended that the present suit was not governed by the Rent Act and consequently the Courts below erred in applying the provisions of that Act to the present case. This was on the ground that no privity was established between him and the Respondent and the house could not be said to have been let to the Respondent. The house it may be stated was actually allotted to the Respondent by the Government after it was requisitioned from Plaintiff 1 and the suit was filed in 1949 when the house was still under the Government requisition. The learned District Judge held that the Rent Act did not apply as long as the property was in possession of the Government but if the owner expressly or impliedly accepted the allottee as his tenant the Rent Act would apply. He further observed that in this case the house was derequisitioned during the pendency of the suit on 2-2-51 and as soon as it was derequisitioned the Rent Act applied and consequently the suit has to be decided under the provisions of that Act.

The legal relations between the allottee of a requisitioned house and the owner are governed by Ordinance (Bombay Act?) 23 of 1948. Section 7 of the Ordinance empowers the Collector or a Special Officer to take possession of any vacant, immovable property for the purpose of letting it to a refugee or for he use of the State and empowers them to let It to a refugee or to utilise it for the use of the State. Sections 8 and 9 provide for fixation of rent and Section 10 declares that the rent so fixed shall be payable to the owner by the person to whom it is let. Finally u/s 11 if the owner requires the property for his personal use the Collector has to decide whether he should be permitted to do so.

These provisions give the Government an absolute disposal of the requisitioned property subject only to the condition that it should be let to a refugee or be put to State use. The Collector or the Special Officer allots it and the owner has no voice in the manner of its use or any selection of the tenant. It is true that the rent is payable to the owner but the letting is done by the Government. in the exercise of its statutory powers and not on behalf of the owner. The Act is really intended to meet an emergency and empowers the Government to take possession of vacant premises and distribute them amongst the needy houseless or put them to Government use. The authority of the Governments over the property is so absolute that the owner may not receive it back even for his own occupation if the Collector decides otherwise. Under these circumstances it cannot be said that the owner of the premises let them to the refugee or any privity arose between him and the owner. The provisions of the Rent Control Act support this conclusion because Section 4(1) declares that the Act does not apply as against Government to any tenancy created by a grant from the Government in respect of the requisitioned premises. This section and the provisions of the Ordinance clearly imply that the tenancy is created by the Government by means of a grant and the Government alone is entitled to evict the tenant and exercise other rights of the lessor of the premise. Therefore there is no privity of any contract between the owner and the allottee, and the Rent Act cannot govern the rights of the owner. In fact the owner''s suit for eviction against either the Government or the tenant while the requisition continues is incompetent because Government is in possession under a statutory right. This suit should, therefore, have been dismissed on this preliminary ground that the Plaintiffs had no cause of action.

This aspect of the case, however, did not strike anyone and the suit was proceeded with. The house was in the meanwhile derequisitioned by the Government on 2-2-51 during the pendency of the suit. The Ordinance contains no provision about what is to happen after the Government derequisitions the property. The owner in disputably does not data through the Government and therefore the lease created by the Government does not enure after derequisition His paramount title continues and only some of his rights to the property remain in abeyance during the requisition. Therefore in my opinion as soon as the Government derequisitions the property, all the rights which had remained in abeyance are automatically restored to him, In the absence of any provision to the Ordinance it is the duty of the Government to restore the property to the owner free from every burden or liability created by them and on the premises being derequisitioned every title created by them comes to an end and the erstwhile tenant''s possession thence forward is without any title. Therefore I cannot agree with the learned District Judge that the Rent Act applies automatically immediately on, the premises being derequisitioned. There was no privity between the owner and the tenant when the latter was brought on the property and no privity, could be created thereafter by derequisition of the premises and consequently the allottee cannot claim any rights against the owner after derequisition.

However Plaintiff 1 framed the suit as if it was a suit by a landlord against his tenant. He purported to terminate the tenancy by a notice and actually claimed arrears of rent up to the termination of the lease and claimed compensation for use and occupation of the premises thereafter. The present Appellants adopted the same position. Plaintiff 1 even withdrew, with the consent of the present Appellants, the rent which was deposited by the Respondent in Court. The learned District Judge held the view that in view of these admissions the Plaintiffs accepted the tenancy and therefore the Rent Act applied to the premises even during requisition. In my view these admissions appear to have been made under a misconception of law. They cannot create a tenancy where no tenancy existed. But after the premises are derequisitioned it is open to the owner to recognise the lease and this can be done expressly or by implication such as by demanding rent. It appears from the record that the Respondent deposited rent from 1-2-1951 with the Special Officer on a demand from the Officer. This demand is evidenced by a memorandum dated 11-7-1951 addressed to the Respondent by the Special Officer. A copy of this memorandum appears to have been sent to Mr. Mody. Therefore, I think that the memorandum must have been sent on an application by Mr. Mody and he should have produced a true copy of his application. In the absence of any explanation from Mr. Mody I am entitled to assume that he took the assistance of the Special Officer for recovering rent. If he did so he must be taken to have recognised the Respondent as his tenant Mr. Mody sought to explain the order by stating that the Government might have made this demand to guard against a possible claim for rent against them in the event of the Respondent vacating the premises without paying rent. I think this explanation is farfetched. There was no reason for the Government to send a copy of the memorandum to Mr. Mody unless some application was made by him. Mr. Mody stated that he had not withdrawn the money from the Special Officer. But it is not at all material whether he withdrew it or not. It is sufficient if the Special Officer was moved by him and the Respondent deposited the money with the Officer for payment to him. By moving the Special Officer and making the Respondent pay he recognised the tenancy after the derequisition and Rent Act applies to the premises.

The decree of the learned District Judge must therefore be confirmed and the appeal is ordered to be dismissed with costs.