Indian Kanoon - Search engine for Indian Law

7. Section 28 of the Act will be attracted to a case if three conditions are satisfied. In the first place, the relationship between the parties should be that of landlord and tenant. Secondly, the claim should relate to the recovery of land or possession of the rented premises. Thirdly, the claim or the question in the proceeding is required to be dealt with or decided under the Act. It will, therefore, be necessary to see how far these three conditions arc satisfied in the present case.

8. It is not in dispute that respondents Nos. 3 to 6 are the heirs and legal representatives of the deceased original owner of the house of which the suit premises is a part. They would, therefore, be the landlords for the purposes of the suit premises. The relationship between the appellant herein and respondents Nos. 3 to 6 is indisputably that of tenant and landlord. It may be mentioned at this stage that the case of the appellant herein is to the effect that neither respondent No. 1 nor respondent No. 2 is a tenant of the suit premises because respondent No. 1 herein was permitted to reside therein on his coming from Bombay to Valsad and respondent No. 2 herein was permitted to reside therein from his age of 3 years as the dependant of the appellant herein. It is the case of the appellant herein that neither respondent No. 1 nor respondent No. 2 has acquired any right whatsoever as a tenant in the suit premises. Whether or not they acquired any right as a tenant with respect to the suit premises will be a question to be answered in the light of Section IS of the Act. It is not in dispute that the appellant herein resided in the suit premises as a tenant till 1956. At that time he was transferred to Malegaon and he went to reside thereat. It is also not in dispute that respondent No. 2 herein continued to reside in the suit premises. Respondent No. 2 has claimed tenancy rights in respect thereof on the ground that he was sublet or assigned the suit premises by the appellant herein on his transfer from Valsad to Malegaon in or around 1956. In fact, the negative declaration that neither respondent No. 1 nor respondent No. 2 herein is a tenant in respect of the suit premises is sought by the appellant in the suit on the basis that neither of the two respondents acquired any tenancy right on transfer of the appellant herein from Valsad to Malegaon in or around 1956. In other words, the declaration sought in the plaint qua respondents Nos. 1 and 2 herein is to the effect that neither of them is the sub-tenant in respect of the suit premises. Looking to the definitions of the terms "landlord" and 'Henant" contained in Sections 5(3) and 5(11) respectively of the Act, the principal tenant would be the landlord qua his sub-tenant and the sub-tenant would be a tenant qua the principal tenant. In that view of the matter, there is no escape from the conclusion that the suit is also between the landlord and the tenant qua the appellant and respondents Nos. 1 and 2 herein. It is therefore clear that the first condition for application of Section 28 of the Act is found satisfied.

10. The question as to what will be the rights, if any, of respondents Nos. 1 and 2 or either of them qua the suit premises will have to be decided on the basis of Section 15 of the Act. It cannot be gainsaid that the appellant herein has sought a negative declaration that neither respondent No. 1 nor respondent No. 2 has acquired any tenancy right whatsoever with respect to the suit premises. Even at the cost of repetition, it may be reiterated that the appellant herein has averred in the plaint that respondent No. 2 was permitted to reside in the suit premises from his age of 3 years as a dependant of the appellant herein and respondent No. 1 was permitted to reside in the suit premises as the father of respondent No. 2 and a close relative of the appellant herein, being a sister's husband. The appellant herein, therefore, asserts that in these circumstances neither respondent No. 1 nor respondent No. 2 has acquired any tenancy right qua the suit premises. As aforesaid, the appellant herein left the suit premises on his transfer from Valsad to Malegaon in or around 1956, that is, prior to coming into force of the 1959 Ordinance referred to in Section 15(2) of the Act. It may again be reiterated that, on the transfer of the appellant herein from Valsad to Malegaon in or around 1956, respondent No, 2 continued to reside in the suit premises. Later on he was joined by his father, that is, respondent No. 1 herein. The question of acquisition of tenancy rights, if any, by either respondent No. 1 or respondent No. 2, more particularly by respondent No. 2, will have to be answered keeping in mind the provisions of Section 15 of the Act. That question can certainly and definitely be said to be a question arising under the Act. That question is certainly and definitely not de hors the Act. In that view of the matter, the third condition for applicability of Section 28 of the Act is also found fulfilled and satisfied in the instant case.