Judgment:
R.S. Dalvi, J.
1. The petitioner has challenged the judgment dated 18.08.1997 in Eviction Appeal No. 27.1989 ordering eviction of the petitioner who was the tenant of the suit premises on the ground on bonafide requirement of the respondent, the owner/landlord of the suit premises.
2. The respondent filed his initial application for eviction of the petitioner under Section 23 of the Goa, Daman and Diu Buildings (lease, Rent and Eviction) Control Act, 1968 (The Act). The application was filed in November 1976. The applicant averred that he was the landlord of the suit house bearing House No. 247 at Margao and that the respondent therein was his tenant who was tenanted the suit house on a monthly rent of Rs. 25/-.
3. In paragraph 6 of the application, the applicant stated that he was not residing in the house of his own in the city of Margao or that he had not obtained possession of a residential house of his own under Section 23 of the Act. He therefore, averred that he had no other house of his own for his own residence.
4. The evidence was led in the said application before the Rent Controller, South Goa, Margao.
5. In his evidence he again stated that he had no other house of his own. He also stated that he never instituted eviction proceedings under the Act.
6. In his cross examination, he stated that he lived with four other brothers who lived together 'in our house' situated at Margao. He was a bachelor. Further in the cross examination, he stated that he did not know whether he (and his brother) had got any other properties including the houses other than the suit house.
7. The learned Rent Controller considered the fact that the applicant had other houses though his application and examination-in-chief showed that he did not have any house of his own. The learned Rent Controller considered that the applicant admitted that he had 'other houses' in Margao though the applicant did not claim sole ownership. He therefore, considered that the applicant was the coowner in other houses. He had observed that the applicant had not bothered to give correct details of 'all the houses'. Hence he concluded that the applicant did not have bonafide requirement of the suit premises.
8. The learned Rent Controller further considered that the respondent had no other premises to stay and lived with nine other members of his family. Upon comparative hardships, he dismissed the application.
9. The applicant claimed to be the landlord under the explanation to Section 23 of the Act. He was the person on whose account rent was collected. The rent was collected by his brother under a power of attorney. It was not seriously disputed that he was the landlord on that score.
10. However, how he became the landlord has been a matter of dispute. The suit property was owned by the applicant's parents. They had executed three Gift Deeds dated 31.12.1965, 30.12.1968 and 30.12.1970 under which they had gifted 4%, 12% and 84% respectively of the disposable quota inter alia of the suit house. The evidence showed that on 21.07.1973 there was an oral understanding between the family members by which the suit house came to the share of the applicant. Pursuant to such oral understanding, Partition Deed was executed on 04.09.1976. The Partition Deed was of the suit house as well as the other properties. It was executed pursuant to the Gift Deeds executed by the parents of the applicant and his siblings. The Partition Deed was not registered at the time of the execution.
11. The applicant gave notice to the respondent to vacate the suit house on 21.09.1976 and later on on 09.10.1976. He filed the application on 12.11.1976. The Partition Deed was registered only thereafter on 23.11.1976.
12. Under such circumstances, the Rent Controller observed that the applicant's claim as landlord is only based upon the oral understanding of the Partition. He therefore, rejected the plea of the applicant claiming to be the landlord under Section 23 of the Act, which applied to the applicant's case. He therefore, considered that the circumstance is not one which the cause of action arose under Rule 9(c) of the Rules framed under the Act which would give cause of action to the applicant. On these grounds, he dismissed the application. The applicant appealed before the Administrative Tribunal, Goa under Eviction Appeal No. 27/1989. The Administrative Tribunal has considered the applicant's contention or requirement of the suit house for his personal residential occupation. The Tribunal has considered that the applicant/landlord had no other house of his own. He considered the position that prevailed at the time of the appeal relating to the residence of the landlord. By that time, he was married after which he was 'putting up with his in-laws'. The Tribunal has considered that the fact that the landlord was living with his in-laws was not challenged in his cross examination. At the time of the application, the landlord was a bachelor. He lived with his parents and four other brothers. That house was no owned by him exclusively. He lived there as a co-owner. The learned Tribunal considered that the landlord had proved that he had no house of his own where he could stay. Hence he was satisfied with the 'need' of the landlord to occupy the suit house.
13. As to his title as landlord, the learned Tribunal considered that initially under the aforesaid Gift Deeds, the landlord inter alia became a co-owner of the disposable quota along with with his brothers. Under the Partition Deed, he got the suit property exclusively. The Partition Deed was pursuant to the oral understanding between the brothers who were gifted the disposable quota inter alia of the suit house. There has been no dispute between the brother on this score. Hence the landlord proved that he was the co-owner before the Partition came to be effected. Hence the Tribunal has considered that if not a sole owner and landlord, the applicant (the respondent herein) was one of the co-owners. He could sue on behalf of all. In fact, one of his brothers, Adolfo, was his constituted attorney to collect the rent on his behalf.
14. The fact that the co-oner can sue for eviction alone and without the such co-owners joining him has been decided in the case of Pal Singh v. Sunder Singh : [1989]1SCR67 with which the petitioner has no complaint.
15. The learned Tribunal has also considered that the comparative hardship of the tenant was not to be gone into under Section 23 of the Act. Consequently, the learned Tribunal has set aside the judgment of the Rent Controller dated 27.06.1989.
16. It has to be seen whether there is any material irregularity in the impugned order or an exercise of jurisdiction not vested in the Tribunal. The appeal was file before the Tribunal. He considered the facts extensively. Most of the facts are admitted. Whether the applicant could maintain the application as landlord in his right as a coowner was seen. The material aspect is to see whether the applicant had any other premises of his own. He has correctly considered his right as a co... owner.
17. Upon appreciation of the evidence, the Tribunal has also correctly concluded that the suit house was the only house of the landlord 'of his own'. He did not reside in any other house of his own. The evidence has shown that he initially resided with his brothers in his parental house. This residence was in his capacity as a co-owner. Before the judgment of the Administrative Tribunal, he was married. He then lived with his in-laws. Hence his bonafide requirement has been considered.
18. Under Section 23 of the Act the landlord's right to obtain possession by an application to the Rent Controller was available if the landlord was not occupying a residential building 'of his own' in the city concerned and he required tenanted property for his own occupation or if he had more buildings than one and he is in occupation of one such building, he bonafide required another building instead for his own occupation. It is argued that in either case, he must show his bonafide requirement. That would not be only upon his desire but dependant upon his needs. In this case his need is seen since he lived with his brothers and then with his in-laws. He lived in his parental house co-owned by his brothers which was not his own separate property. He needed to reside in the suit property which he previously co-owned with his brothers and later albeit after filing of his application, by himself. That was required for his own occupation. He has shown bonafide requirement. That has been considered by the Tribunal.
19. In the case of Ramchandra M. Kamat v. Damodar Ramchandra Mashelkar and Ors. (1) 1989 GLT (161), this Court considered the case on all fours the facts of the case. The evidence on record in that case showed that the landlord resided in a common ancestral house; it did not belong to him exclusively. He lived there with his family alongwith his brothers. He had a share therein. It was held that this circumstance would not show that the landlord was occupying a residential building of his own in the same city. Therefore, such a house cannot be taken to be exclusively belonging to such person. It is held in that case that if a co-owner who stays in a common ancestral house owns another house of his own, which is rented and requires for his need or for his family, the common ancestral house in which he resides cannot be taken to be his own. The judgment considers precisely Section 23 of the Act. It has considered the same scenario as is peculiar in this State and to which the Act is specifically made applicable. Hence what is observed in that judgment must apply to this case fully. Section 23 would therefore, require that the house or the building which is 'his own' must therefore be the house which belongs exclusively to the landlord as has been held in paragraph 20 of the judgment. The landlord would then require to prove his need for requiring his separate or additional accommodation. The only exception would be an oblique motive for obtaining the tenanted premises upon some extraneous purpose. The judgment in the case of Ramchandra Kamat (supra) is therefore fully applicable not only to the facts of this case but to all the properties or similar nature in this State where the scenario of having common ancestral homes prevails.
20. The petitioner (tenant) has sought to show that the applicant's need is not bonafide upon the evidence adduced by and on behalf of the applicant. The learned Counsel Mr. Usgaonkar submits that the evidence of the applicant that he has no other house of his own was not truthful in view of the later evidence showing that the brother of the application Adolfo was the constituted attorney of all the brothers including the applicant to manage the family business 'as well as the properties' of each of the brothers. This is relied upon to show that the petitioner as a tenant has sought to show that the landlord's requirement is not bonafide, as held in the case of Dattatraya Kamble v. Abdul Dotkunde : [1994]3SCR866 .
21. The aforesaid evidence does not show that the applicant had properties which were exclusively his own. There is no further cross examination upon that evidence. The aforesaid evidence shows properties of nine brothers as the applicant. Each brother may not have more than one property. All the properties could be common ancestral properties. In such a case none of those properties could be taken to be exclusive property belonging to each brother. In any event, the evidence does not show any exclusive property belonging to the applicant which he can call his own as required under the judgment in the case of Ramchandra Kamat (supra).
22. It is argued on behalf of the petitioner that since the Partition Deed was not registered prior to the filing of the application, the respondent herein could not be stated to be the landlord on the date of the application. He became a landlord only when the Partition Deed was registered. He was therefore not entitled to apply under Section 23 of the Act for a period of 2 years from the date on which the instrument was registered. The registration that is required is of the Gift Deeds and not the Partition Deed. Under the Gift Deeds, the petitioner inter alia became co-owner. Depending upon any agreement or understanding, oral or in writing between the co-owners, he could have filed his application since that would be taken to be an application by a co-owner or co-heir. He could have become a complete owner only upon the registration of the Partition Deed which was after his application.
23. The proviso to Section 23 of the Act relates to the right of the landlord after the commencement of the tenancy, by any instrument inter vivos. Further the proviso deals with such a right by gift from parents. Hence the applicant who was gifted inter alia the suit house along with his brothers could maintain the action within five years from the last gift deed executed on 30.12.1970. The application therefore, could have been filed on or after 31.12.1972. That would be an application by a co-owner on behalf of all. It cannot be challenged by a third party. In the absence of any challenge by the other co-owners, the fact that there has been a Partition Deed, registered on 23.11.1976 shows the tacit approval of the other co-owners who were also gifted inter alia the suit house, by way of gift from their parents.
24. Hence it is seen that the learned Tribunal correctly considered the legal position relating to the acquisition of ownership rights of the respondent herein as landlord.
25. It is also sought to be contended by the petitioner that in the Gift Deeds, the share of the mother of the respondent and his brothers was not considered. That came to be considered under the Deed of Rectification dated 18.06.1979 registered on 22.06.1979. That does not matter as that also cannot be challenged by a third party in the absence of any challenge by the mother herself, or the other co-owners. Hence whatever be the respective shares of the family members, the applicant (the respondent herein) also had a share as co-owner. That was pursuant to the Gift Deed executed by his parents, upon which, the applicant initially applied for eviction on the ground of bonafide requirement. His application was after the statutory period allowed to him during which he could not have applied. Consequently, he had a legal right to apply at the time of the application.
26. It is also contended that landlord had no bonafide need as he lived with his brothers in his ancestral house. The evidence shows that tenant was prior to his marriage. Even before his marriage it is seen that he had no exclusive premises of his own. His marriage was after the application was filed and before the evidence was led. It was a subsequent event. The fact that subsequent events are to be taken into consideration in considering the bonafide need of requirement of the landlord has been decided since the case of Variety Emporium v. v. R. M. Mohd. Ilbrahim Naina : [1985]2SCR102 which has been followed by this Court even in Writ Petition No. 630 of 2007 to which my attention has been drawn. The subsequent events of this case have been brought out in the evidence. That evidence has not been challenged. The subsequent events are upon the marriage of the petitioner. That itself is an important circumstance to require and need the premises of the landlord otherwise tenanted.
27. What is bonafide need is an aspect that has undergone a metamorphosis. In the case of M.M. Quasim v. Manohar Lal Sharma : [1981]3SCR367 , it was held that events subsequent to filing of the suit were to be considered though it was observed that the landlord would not have unfettered right to re-enter upon the tenanted premises because of his choice when other premises was available for occupation of the landlord and the landlord was required to prove that the available vacant premises was not suitable for his purpose. The case of M.M. Quasim (Supra) has been followed in the case of Shiv Sarup Gupta (supra).
28. The case of M.M. Quasim (Supra) was the one in which some vacant premises of the landlord, which the landlord would conveniently occupy was available to the landlord and would be in his possession. However, if that was not suitable for the purpose of the landlord, the landlord could not have been relegated to it. It is observed that if such premises was otherwise suitable, the landlord could not choose to obtain the tenanted premises.
29. In the case of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta : [1999]3SCR1260 , the aspect of what was bonafide need was considered. It was held that bonafide need was natural, real, sincere and honest need of the landlord. In that case a Doctor landlord whose son was also a doctor sought premises of his tenant. During the pendency of the suit, his wife and his mother-in-law expired. Considering his genuine requirement of his clinic and a waiting room for his patients, the Supreme Court held that his need was bonafide. It was inter alia observed that the landlord could convince the Court for satisfying his felt need.
30. In this case the only available premises is which the applicant shared with his co-owners was his parental house. That was during the time he was a bachelor. The subsequent events show that he was married prior to the evidence being led and the evidence show that he had 'to put up with his inlaws'. This was despite the fact that the applicant was a co-owner in respect of the suit premises, in which he could maintain the action for eviction on the ground of his own bonafide requirement and that was the only premises which was his own premises - the other properties being co-owned by him. The applicant after his marriage and to start a family, would bonafide need and require his separate premises and consequently co-owned premises, part of which may be available to the applicant would not be suitable for the purpose of raising his family.
31. The order of the Administrative Tribunal does not suffer from any infirmity. The writ petition is disposed off. Rule discharged.