Gujarat High Court
Madhuben Hatwarlal, Joravarnagar And ... vs Prajapati Parshottam Tulsidas on 21 February, 1990
Equivalent citations: AIR1991GUJ40, (1990)2GLR1177, AIR 1991 GUJARAT 40
Author: M.B. Shah
Bench: M.B. Shah
ORDER
1. Being aggrieved and dissatisfied by the judgment and decree dated 23rd Jan. 1990 by the District Judge, Surendranagar, in Regular Civil Appeal No. 107 of 1986, the appellants original defendants have filed this second appeal.
2. The respondent (plaintiff) had filed Regular Civil Suit No. 75 of 1984 before the Civil Judge (J.D.) Surendranagar against the appellants for recovering the possession of the suit premises which consist of one room admeasuring 15' x 13' situated at Joravarnagar. It was contended by the plaintiff that deceased Jamnadas Chaturbhai was a tenant of the said premises. He had expired on 21st February 1983 without leaving any near relatives. On the death of the tenant, the appellants (defendants) trespassed upon the said premises and took possession of it. That suit was dismissed by the learned Judge by holding that the defendants were near relatives of the deceased Jamnadas and they were residing with him to three months prior to his death and, therefore, they would be tenants of the suit premises. Against that judgment and decree the respondent preferred the aforesaid appeal before the District Judge, Surendranagar, who arrived at the conclusion that the case of the defendants that they have derived their tenancy rights under S. 5(11)(c) of the Bombay Rent Act after the death of deceased tenant Jamnadas cannot be believed because they were not residing with the deceased tenant prior to three months of his death. The learned Judge considered the fact that say of the defendants that they resided with the deceased Jamnadas is totally false and baseless in view of the evidence which he has discussed in his judgment. He, therefore, allowed the appeal and decreed the plaintiff's suit.
3. Mr. Bavishi, learned advocate appearing on behalf of the appellants, vehemently submitted that the defendants should be considered as family members of deceased Jamnadas. For this purpose he has relied upon the following pedigree which is given in the appeal memo:
(See table below) According to his submission, as the defendants are nephews of the deceased, they should be considered as family members of the deceased and, therefore, they --% protected u/ S. 5(11)(c) of the Rent Act..
4. In my view, this submission cannot accepted. Section 5(11)(c) of the Rent A t stipulates the case of the death of the tenant in whose favour statutory tenancy would be transmitted. It does not provide that the statutory tenancy would be inherited by the heirs of the deceased but protection of the Rent Act is granted to a person who is member of the tenant's family and is residing with the tenant at the time of, or within three months immediately preceding, the death of the tenant. This would be clear from S. 5(11)(c) of the Rent Act which reads as under:
"5. In this Act unless there is anything repugnant to the subject or context xx xx xx xx xx xx (11) "tenant" means any person by whom or on whose account rent is payable for any premises and includes xx xx xx xx xx xx
(c)(i) in relation to premises let for residence, any member of the tenant's family residing with the tenant at the time of, or (Contd. on Col. 2) Bogha Naran Gokal Chatur Ranchhod Jamnadas v:line id="_x0000_s1031" style='position:absolute;left:0;text-align:left;z-index:2' from="323.55pt,5.45pt" to="323.55pt,5.45pt">