Thakordas Parbhudas and Another vs Manilal Kunverji Desai

V.B. Raju, J.—In a suit under the Bombay Rents Hotel and Lodging House Rates Control Act 1947 which will hereinafter be referred to as the Act filed by the applicants-landlords against the tenant who was in occupation of the first and second floors of the premises the 3rd Joint Civil Judge Junior Division Surat decreed the plaintiffs suit for possession of the first floor on the ground that the plaintiffs-landlords bona fide required the first floor for their residence. In appeal the appellate Judge took into consideration the fact that the plaintiffs-landlords had obtained a decree for possession against another tenant in respect of the ground floor and having this factor in view he decreed that the plaintiffs should recover possession of the suit premises namely the first floor and the second floor from the defendant alter the ground floor is vacated by the other tenant arid after it is made available to the defendant. This decree of the appellate Court is now challenged in revision.

The revision application must succeed because the suit by h plaintiffs-landlods fo possession from the enants was in regard o the first and seond floors and the tenant was not in possession of the ground floor which was in possession of anohter tenant. In such a case section 13 of the Act does not permit the Court to grant to the defendanttenant possession of premises of which he was not in possession. The suit related to the suit for possession in full or in part or to dismiss the suit for possession in full. But it is not open to th Court to decree possession to the tenant of some portion of the premises of which the tenant was not in occupation. The appellate Court therefore acted beyond its jurisdiction.

The decree passed by the appellate Court is therefore set aside and the matter is remanded to the appellate Court to pass a proper decree u/s 13(2) of the Act. The applicants to get half the costs.