Faredoon Maneckji Dalal Vs. Phiroz Bomanji Javeri - Court Judgment

I.G. Shah, J.

1. The plaintiff has filed this suit for eviction of the defendant on the ground that the defendant is in wrongful occupation of a premises on the ground floor of a building situated at 21, Meghraj Sethi Marg, Bombay 400 008, and that he is a trespasser. The plaintiff claims that the plaintiff has been the owner of the property consisting of a building of one storey situated at Meghraj Sethi Marg, Bombay 400 008, and one Maneckji M. Javeri was a statutory tenant of the premises on the ground floor of the said building till his demise on 17th of April, 1968. On the death of the said Maneckji M. Javeri, at the request of his sister Miss. Cooverbai M. Javeri and his brother Kaikhushru M. Javeri, the statutory tenancy standing in the name of the said Maneckji M. Javeri was transferred by the plaintiff in the name of Miss. Tehmina M. Javeri another sister of the said deceased Maneckji M. Javeri. The plaintiff also claims that although the said Maneckji M. Javeri and the said Miss. Tehmina M. Javeri were statutory tenants under the Rent Act, the plaintiff, in order to avoid any possible contention, gave to Miss. Tehmina M. Javeri a notice to quit dated 24th November, 1969 whereby he called upon her to quit, vacate and give peaceful possession of the said premises to him on the expiration of the month following the month in which she received the said notice. The plaintiff also claims that along with the said Miss. Tehmina M. Javeri, Miss. Cooverbai M. Javeri and their brother Kaikhushru M. Javeri were residing in the said premises; that on the death of the said Miss. Tehmina M. Javeri which took place on or about 25th day of October, 1975, the plaintiff, with the consent of the said Kaikhushru M. Javeri accepted Miss. Cooverbai M. Javeri as his statutory tenant; that the said Kaikhushru M. Javeri died during the life-time of Miss. Cooverbai M. Javeri on or about 3rd July, 1976; that Miss. Cooverbai M. Javeri also died on or about 4th September, 1976; without leaving any member in her family; that on the death of Miss. Cooverbai M. Javeri, the statutory tenancy of Miss. Cooverji M. Javeri came to an end and therefore, the plaintiff became entitled to recover possession of the said premises; that, as far as the plaintiff is aware, the defendant has been wrongfully occupying the said premises since the demise of late Miss. Cooverji M. Javeri without any right, title or interest in respect thereof; that the occupation by the defendant of the said premises is unlawful and he is a mere trespasser; that by a letter dated 20th of October, 1976 addressed to the defendant, the plaintiff intimated the defendant that late Miss. Tehmina M. Javeri was a statutory tenant only under section 5(11)(c) of the Bombay Rent Act in respect of the said premises and that the statutory tenancy was already terminated by a notice dated 24th November, 1969; that the plaintiff further pointed out in the said letter that the said Miss. Cooverbai M. Javeri, after her death on 4th September, 1976, had left no one as a member of the family residing with her at the time of her death; that he also pointed out that the defendant had no right, title or interest in the said premises and that his occupation of the premises after the death of Miss. Cooverbai was that of a trespasser and that he was liable to be forthwith evicted from the premises; that he also pointed out in the said letter that the defendant was also residing with his mother-in-law at Belvedere Court, M. Karve Road, Bombay 20, with his wife; that the defendant made certain untenable claim in respect of the said premises and claimed that he was entitled to allow others to stay in the said premises and that the said claims of the - defendant were refuted by the plaintiff in correspondence; that the plaintiff, in view of the above facts, is entitled to a declaration that the defendant is a trespasser and/or has no right, title or interest in respect of the said premises and the plaintiff is entitled to a decree directing the defendant to hand over quiet, vacant and peaceful possession of the said premises and that the - plaintiff is also entitled to receive damages from the defendant for the wrongful use and occupation of the premises from 4th September, 1976 till the date of the suit aggregating to Rs. 4,500/- and that the defendant is also bound to pay mesne profits for wrongful use and occupation of the said premises at the rate of Rs. 500/- per month from the date of the suit till the defendant hands over quiet vacant and peaceful possession of the said premises to the plaintiff.

2. The plaintiff also claims that the defendant is not permitting the plaintiff to inspect the premises and has committed various wrongful acts like allowing others to stay and occupy the said premises even during his absence unauthorisedly parking a car and scooter in the compound of the said building, breaking drainage pipe so that dirty water flows in the compound. The plaintiff also claims that the defendant is also staying in premises with mother-in-law at Belvedere Court, with his wife and daughter and has been allowing others to stay and occupy the said ground floor premises during his absence and has wrongfully claimed in writing that he is entitled to do so. The plaintiff also claims that he apprehends that the defendant is purporting to create right, title and interest in favour of a third party and that he intends to transfer the said premises to some third parties. The plaintiff also prayed for certain interim reliefs pending the hearing and final disposal of the suit.

3. The defendant filed his Written Statement and resisted the suit. The defendant contends in his Written Statement that on the face of the plaint, the suit is for recovery of possession by landlord from a tenant, and therefore, Part II of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 applies and that this Court therefore has no jurisdiction to entertain and try this suit. The defendant further contends that Boman Munchersha Javeri became a tenant of the ground floor and one room in the outhouse over 30 years ago and that he was residing in the said premises with his brothers Maneck Munchersha Javeri, an Advocate, Kaikhushru Munchersha Javeri and three sisters, Tehmina Munchersha Javeri, Shirin Munchersha Javeri and Cooma (Cooverbai) Munchersha Javeri; that at the time the premises was rented out to Boman Munchersha Javeri the plaintiff's father Dr. Maneckji Pallonji Dalal was the owner of the said property and the rent bills were issued in the name of the said Bomanji Javeri, and therefore, Bomanji Javeri was a contractual tenant in the said premises; that Boman Munchersha Javeri died on or about 27th June, 1967 whereafter the tenancy was transferred to the name of Maneck Munchersha Javeri; that the said Maneck Munchersha Javeri died on 17th of April 1968, whereafter the tenancy was transferred to the name of the estate of the said Maneck Munchersha Javeri, and after his death to the name of eldest sister Tehmina Munchersha Javeri. The defendant also contends that Shirin Munchersha Javeri died on 17th February, 1960. He also claims and contends that the defendant was adopted by the said Boman Munchersha Javeri when he was a child of six month age and came to reside and resided with the said Boman Munchersha Javeri and others i.e. the Javeri family; that the defendant, to the knowledge of the plaintiff and members of his family, has always resided in the said premises along with other members of Javeri family as an adopted or a 'Palak' son; that the said Boman Munchersha Javeri executed a Deed of Adoption on or about 28th September, 1957, and confirmed the said adoption.

4. The defendants also contends that the last surviving member of the Javeri family was Cooma Munchersha Javeri who died on 4th September, 1976 and after the death of plaintiff's father Dr. Maneckji Pallonji Dalal on 2nd October, 1952, the plaintiff did not issue rent bills but the rents were paid by Boman Munchersha Javeri and thereafter by Maneck Munchersha Javeri and thereafter by Tehmina Munchersha Javeri and subsequently by Cooverbai, and rent receipts were issued first in the name of Boman Munchersha Javeri and thereafter in the name of Maneck Munchersha Javeri and after the death of Maneck in the name of the estate of Maneck Munchersha Javeri. The defendant further contends that thereafter, however, rent receipts were wrongly termed as 'compensation' when they were issued in the name of Tehmina Munchersha Javeri and then in the name of Cooverbai Javeri.

5. The defendant further contends that Boman Javeri made a Will on or about 15th February, 1958 under which the defendant has now become the absolute owner of the property left by the said Boman Javeri. He also contends that Shirin made a Will on 15th February, 1958 appointing the defendant as the Sole Executor under her Will bequeathing all her properties to him, and the defendant has now become the absolute owner of the properties left by the said Shirin. He also contends that Maneck Munchersha Javeri also made a Will on 30th March, 1960 whereby he gave his share in the immoveable properties or investments to his brother Boman and sister Cooverbai in equal shares for their lives or the life of the survivor, the life income to the defendant and on his death to his children in equal shares. He also contends that the said Maneckji Javeri thereafter made certain bequests to charity. He also contends that Tehmina Javeri made a Will whereby she bequeathed all her jewelleries, ornaments and articles of furnitures, clothes, household goods etc., to the defendant absolutely. She also gave her share in the - immoveable property and her residuary estate to the defendant. He also further contends that Cooverbai Javeri who died on 4th of September, 1976 also bequeathed all her jewellery, ornaments and articles of furniture belonging to her to the defendant absolutely and she also gave her share in the joint property and her residuary estate to the defendant absolutely and appointed the defendant and Jehangir Rustom Gagrat as the Executor of her Will in the following terms :---

'I appoint Phiroze Bomanji Javeri, adopted son of my late brother Boman and Jehangir Rustom Gagrat or the survivor of them, to be the Executors and Trustees of this my Will.'

The defendant further contends that the said Jehangir Rustom Gagrat has renounced his right to apply for the Probate and the defendant is proceeding to make an application for Probate of her Will; that all the members of the Javeri family have given all their right, title and interest in the property jointly and/or individually owned by them to the defendant and the defendant is also the Sole Executor of the Will of all the members of the Javeri family, except Maneck Munchersha Javeri who has appointed one Gool Maneckji Dalal, the sister of the plaintiff, as one of the Executrices and beneficiary under his Will. He further contends that even if Cooma (Cooverbai) Javeri was the last statutory tenant of the Javeri family, she having bequeathed all her property to the defendant and appointed him as the Sole Executor, he has become in law the tenant of the suit premises and in any event, the defendant is a member of the Javeri family and was all along and even at the time of the death of the said Cooverbai Javeri residing in the said premises and is therefore entitled to the protection of section 5(11)(c) of the Bombay Rent Act.

6. The defendant further contends, and denies that the plaintiff has been at all material times the owner of the property and contends that the said property belonged to the plaintiff's father Dr. Maneckji Pallonji Dalal and that Dr. Maneckji Pallonji Dalal died on 2nd October, 1952 leaving a Will whereby he gave the life interest to his wife Shirinbai and on her death, the property was to go to the plaintiff. He contends that he is informed that according to the directions given by the said Dr. Maneckji Dalal, his wife Shirinbai, his daughters named Gool and Ketty, the plaintiff and one Mrs. Hamabai Cawasji Mehta were all given the right of residence in the said property during their respective lives. He further contends that Shirinbai died on or about the 24th October, 1962 and that the plaintiff married after his mother's death and is staying with his wife and his sister Gool in a portion of the first floor of the said property. The defendant also contends that Ketty is married and is residing with her husband. That Hamabai Cawasji Mehta, Shirinbai's mother, died in or about March, 1968, and that the defendant is informed that the plaintiff has not applied for Probate of the Will of the said Dr. Maneckji Pallonji Dalal to whom the said property originally belonged and who rented the said premises of the said property to the Javeri family and that the plaintiff has not annexed or relied upon any documents of title to show that he was at all material times the owner of the said property and that the plaintiff has at present no legal right to the said property. He also contends that after the death of the plaintiff's father, the plaintiff did not issue any rent bills, but issued receipts for rents paid, first to the said Boman Munchersha Javeri, then to the said Maneck Munchersha Javeri and after the death of Maneck Munchersha Javeri, to the estate of Maneck Munchersha Javeri and thereafter in the name of the said Tehmina Munchersha Javeri and thereafter in the name of the said Cooma (Cooverbai) Munchersha Javeri.

7. The defendant therefore, contends that the suit of the plaintiff being between landlord and tenant for possession is not maintainable in this Court and the proper jurisdiction is the - Court of Small Causes at Bombay. He also contends that the plaintiff has deliberately over-valued the Court Fees at Rs. 54,500/- in an attempt to bring the suit within the jurisdiction of this Hon'ble Court, and that the valuation of the suit property would not be more than Rs. 25,000.

8. The defendant also contends that he has not trespassed in the suit premises and that he is a lawful tenant in the said premises and that he is ready and willing to pay the monthly rent which was tendered to the plaintiff but the plaintiff has refused to accept the same. He, therefore, prays for the dismissal of the suit.

9. In view of the above pleadings, the following Issues were framed :

1) Whether this Court has no jurisdiction to entertain and try the suit for the reasons alleged in paragraphs 1 & 3 of the Written Statement?

2) Whether the defendant is a trespasser in the suit premises as alleged in paragraphs 1 and 9 of the plaint?

3) Whether the defendant is entitled to the protection of the Bombay Rent Act, 1947 as the tenant of the plaintiff in respect of the suit premises as alleged in paragraphs 9 and 12 of his Written Statement?

4) Whether the defendant was residing with the said Cooverbai Munchersha Javeri as a member of her family at the time of her demise as alleged in paragraphs 8 and 10 of the - Written Statement?

5) Whether the plaintiff is entitled to recover from the defendant Rs. 4,500/- by way of damages from 4th September, 1976 till the date of the filing of the suit and thereafter at the rate of Rs. 500/- per month from the date of the filing of the suit till the defendant hands over the vacant possession of the suit premises including the parking space for the wrongful and unauthorised use of the suit premises as alleged in paragraphs 9 and 10 of the plaint?

6) Whether the defendant inherited the tenancy of the suit premises from the said Cooverbai Munchersha Javeri under her last Will and Testament dated 14th May, 1968 as alleged in paragraph 8 of the Written Statement?

7) Whether the plaintiff is entitled to any reliefs? and if so, to what reliefs?

10. My findings on the abovesaid Issues are as under :

1) Has jurisdiction.

2) Yes.

3) No.

4) No.

5) Yes.

6) Not pressed in view of decision of Supreme Court;

7) Yes, as per final order.

REASONS:

11. Issue No. 6 is not pressed by the defendant's Advocate in view of the decision of the Supreme Court on the point.

11(a). It would be proper first to take up for consideration Issue Nos. 2 and 3 and decide the same. Plaintiff has come to this Court with the contention that the defendant is a trespasser in the suit premises and therefore, the plaintiff is entitled to a decree of eviction against the - defendant. The defendant, on the other hand, has claimed that he is a tenant in the suit premises and therefore, is entitled to the protection of the Bombay Rent, Hotel and Lodging House Rates (Control) Act, 1947 ('Bombay Rent Act). The defendant's main contention is that he was residing with Cooverbai alias Cooma Munchersha Javeri as a member of her family at the time of her death, and, therefore, was a tenant, in view of the provisions of section 5(11)(c) of the Bombay Rent Act. The defendant also contends that initially Bomanji was the tenant in the suit premises and the said position is also admitted by the plaintiff. According to the defendant, he was adopted by the said Bomanji as his son, and therefore, he was residing with Bomanji as his adopted son in the suit premises during the life-time of Bomanji. He also claims that Bomanji had actually treated him as his son as is clear from the fact that the Navjyot ceremony of the defendant was done by Bomanji and that Bomanji had actually executed a Deed of Adoption on or about 20th September, 1957 and has confirmed the said fact of adoption. On behalf of the plaintiff, on the other hand, it is contended that amongst Parsis there is no provision of adoption, and therefore, the contention of the defendant that he is the adopted son of the plaintiff must be negatived. It is true that amongst Parsis there is no provision of adoption. However, on behalf of the defendant, reliance is tried to be placed on a ruling reported in 1950(2) K.B. 204 Jones v. Whitehill, and 1949(1) All E.R. 715, Brock and others v. Wollams, to contend that the word 'family' in section 12(1)(g) of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, as amended by Rent and Mortgage Interest Restrictions (Amendment) Act, 1933, and Increase of Rent and Mortgage Interest (Restrictions) Act, 1935 was interpreted in broad manner and it was held that the word 'family' in the said section was used in the ordinary popular sense of the word and included an adopted child, whether or not there had been a legal adoption, and therefore, if the deceased tenant was a statutory tenant at the time of his death, the defendant is entitled to the protection of the Rent Restrictions Acts. The facts of the case Brock v. Wollams, show that in 1912 the defendant who was a child of five, went to live with the tenant of a dwelling-house within the scope of the Rent Restrictions Acts, and that, she was never legally adopted by the tenant and his wife, but she lived with them as their adopted daughter until her marriage in 1939 and she returned to the house in 1942 on her becoming a widow and remained with the tenant in the house until his death in February, 1948. In an action by the landlord for possession of the house, the defendant claimed the protection of the Rent Restrictions Acts on the ground that she was a 'member of the tenant's family' within the meaning of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1920, section 12(1)(g) (as amended by the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933, section 13 and the Increase of Rent and Mortgage Interest (Restrictions) Act, 1935, section 1). In the other case, viz., Jones v. Whitehill, the defendant in 1947, out of love and kindness, went to live with her aunt and her aunt's husband. The aunt died in July, 1948, and her husband, who was the statutory tenant of the house where they were living, died some five months later. After his death the plaintiff, as landlord, brought proceedings to recover possession, but the defendant claimed to be entitled to remain in the house as tenant as being a 'member of the tenant's 'family''. The Court held, applying the test laid down in Brock v. Wollams, (supra) that the defendant was a 'member of the tenant's 'family'' having regard to the fact that she went out of love and kindness to live with the tenant and his wife and looked after them in their declining years. Relying on these two cases, on behalf of the defendant, it is contended that even if there is no provision of adoption amongst Parsis, when it is clearly established that deceased Bomanji had treated him as an adopted son, he must be considered as 'the family member' of Bomanji, and therefore also of Cooverbai who was the last statutory tenant in the suit premises.

12. On behalf of the plaintiff, to meet the above contention, reliance is placed on the decision reported in 1964(1) All E.R 861, Ross & another v. Collins, and it was contended that in the said decision, the defendant who had lived in the flat with a statutory tenant since 1940 till the death of the statutory tenant in February, 1962 and that the defendant had looked after the statutory tenant as well as her mother who also lived in the flat until her death in 1958. The defendant had looked after the statutory tenant and nursed him with care and affection, but as there was no blood or marriage relationship between them, her claim that she was a member of the statutory tenant's family was negatived, and, in the said case, the decision in Brock v. Wollams, (supra) was also considered. It is true that in the said decision, the person who had no blood or marriage relationship and was merely residing along with the statutory tenant till the death of the statutory tenant was held to be not a family member of the statutory tenant. But, on careful reading of the decision relied upon by the plaintiff, it is clear that the Court had proceeded on the basis of evidence of the defendant in the said case where the defendant admitted that the statutory tenant had treated the defendant as his family member and that is all the defendant knew and further that the defendant thought that she had a moral right and had always regarded the statutory tenant as a sort of elder relative, partly as father and partly as elder brother. On the strength of this evidence, the trial Court had held that the defendant never passed as the daughter of the statutory tenant nor he was her father, and that he never recognised her as his daughter nor she recognised him as her father and that he never stood to her in loco parentis. There was also further evidence that there was no blood relationship between these people nor was there any relationship by marriage and the evidence which is discussed earlier was not sufficient to hold her as the family member of the statutory tenant. Therefore, it is not as if that the view expressed in the earlier decision of Brock v. Wollams, (supra) was not followed in the said decision. Therefore, the ratio of all these decisions is that even if a person is not legally adopted and was living with the statutory tenant as the family member, he could be considered as a person entitled to the rights of tenancy under the Rent Act, and that it would depend on the facts of each case.

13. Now, therefore, it is necessary to consider in the present case, the facts as they have come on record. What the defendant has stated in his deposition before the Court is that since childhood he has been brought up by Javeri family and that he has been residing with them in the suit premises. He has also further stated that Cooverbai had appointed him as a Constituted Attorney and under the said Power of Attorney he used to act for Cooverbai. He has also produced before the Court a copy of the Power of Attorney Exhibit '3'. He also testified that even Tehmina the sister of Cooverbai had also appointed his as Power of Attorney. He has further stated that since the time of Bomanji the telephone in the suit premises was in the name of Bomanji and the same was transferred in the name of the defendant after the demise of Bomanji and that he has been paying the rental of telephone as well as electric connection after the demise of Bomanji. He further has deposed about Bomanji treating him as his adopted son. However, it is clear that Bomanji died and thereafter the tenancy was transferred to his brother Maneckshaw and after Maneckshaw's death the tenancy was transferred to Tehmina and after the death of Tehmina the tenancy was transferred to Cooverbai who, ultimately died on 4-9-1973. It is also admitted by the defendant that he had not objected to the transfer of tenancy to the abovesaid persons at any time. Now, therefore, even if it is held that the defendant was considered as an adopted son and that he was residing with Bomanji till the death of Bomanji, on the death of Bomanji the tenancy was not transferred to the defendant and it was transferred to the other relations of deceased Bomanji. The defendant had not claimed the tenancy rights from all those persons nor has disputed their rights of tenancy at the relevant time. The defendant in his deposition, however, had tried to contend that according to him he is adopted son of all the three persons viz., Bomanji, Tehmina and Maneckshaw. He also has further deposed that Kaikhushroo had also adopted him as his son but no writing to that effect was made. Therefore, there is no evidence that Cooverbai who was the last tenant in the suit premises treated the defendant as her family member or that she had adopted the defendant as her son. At the most, what the defendant's evidence makes out is that he was appointed Power of Attorney by Cooverbai. That by itself would not be sufficient to make him a family member of Cooverbai. Therefore, the plaintiff's contention that the defendant is not having any right in the tenancy of deceased Cooverbai who was the last tenant will have to be accepted. Once it is found on the strength of evidence that the defendant was not the adopted son of Cooverbai, then he must be held to be not the family member of deceased Cooverbai. Therefore, there is no relationship of the defendant with the last tenant in the suit premises viz., Cooverbai, and hence, the plaintiff is right in contending that the defendant is a trespasser. Even taking into consideration the decisions of the English courts relied upon by the defendant, in the absence of any evidence of Cooverbai treating the defendant as her son or family member, the case of the plaintiff will have to be accepted.

14. On behalf of the defendant it is tried to be very strenuously contended that this Court has no jurisdiction to try the suit as it involves the question as to whether the defendant is a tenant in the suit premises having inherited the tenancy rights under section 5(11)(c) of the Bombay Rent Act. As against this, on behalf of the plaintiff, it is contended that the plaintiff has filed the suit contending that the defendant is a trespasser and a suit against a trespasser for his eviction has to be filed in this Court and not in the Court of Small Causes under the provisions of the Bombay Rent Act. It is contended that for the purposes of jurisdiction, one has to proceed on the basis of the plaint and not the defence raised by the defendant in the Written Statement. Apart from this, it is also contended that if the defendant is not the family member residing with the deceased Cooverbai at the time of her demise, then there is no semblance of right arising in his favour under the Bombay Rent Act and therefore, the plaintiff's suit must be held to be properly filed in this Court and that this Court has jurisdiction to decide the same.

15. On behalf of the plaintiff, reliance is placed on ruling reported in : [1990]1SCR862 , Sanwarmal Kejriwal v. Vishwa Co-operative Housing Society Ltd. and others. Specific reliance is placed on the observations made by the Supreme Court in paragraph 23 which are as under :---

'23. But the jurisdiction of the Court in which the action is originated must be determined on the averments in the plaint or claim application and not on the defence taken by the adversary party. For example, if the plaintiff goes to Court alleging that the defendant is a trespasser, the ordinary Court will have jurisdiction and its jurisdiction will not be taken away merely because the defendant pleads tenancy. If, however, the defendant - succeeds in proving that he is a tenant in respect of the premises, possession whereof is sought, the Court trying the case would miss the suit on the ground that the plaintiff had failed to prove the jurisdictional fact that the defendant was a trespasser.'

The plaintiff also placed reliance on the decision reported in : AIR1991Guj40 , Madbuben Hatwarlal v. Prajapati Parshottam Tulsidas, wherein, the word 'family' in section 5(11)(c) of the Bombay Rent Act has been considered as to who are to be included in it. It is observed in the said decision that the 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, and section 5(11)(c) nowhere provides that the heirs of the deceased would be tenants as per the provisions of the Personal Law applicable to the deceased tenant. The learned Judge of the Gujarat High Court further observed that even if the broader meaning to the word 'family' is given, by no stretch of imagination it can be said that persons who are related to the deceased by fourth or fifth degree will be members of his family. Normally 'family' includes parents, spouse, brothers, sisters, sons or daughters or in some cases widow of a pre-deceased son or the issues of the pre-deceased sons but by no stretch of imagination it can be held that the distant nephews would be family members howsoever broad meaning is given to the word 'family'. Relying on this decision, it is contended that after the death of Cooverbai who was the last statutory tenant occupying the premises, definitely is not directly related to the defendant. At the most, even if it is accepted that the defendant is an adopted son of Bomanji, he would be the nephew of Cooverbai, and therefore, would not be covered within the meaning of being a member of a family of the deceased statutory tenant. I have already discussed the evidence and concluded that the premises were in possession of Cooverbai last as a statutory tenant and between the tenancy of Bomanji and Cooverbai two other tenants had also intervened. Therefore, if the defendant is not even a family member within the meaning of the provisions of the Bombay Rent Act, on the face of it, it must be held that the defendant has no semblance of right as a tenant. The plaintiff has come with the case that the defendant is a trespasser. If the defendant is not a family member last residing with Cooverbai, the last statutory tenant, then the defendant must be considered to be not even having a semblance of right of tenancy, and therefore, the defendant must be held to have failed to establish that he has some right of tenancy in him and that as a member of the family he was residing with Cooverbai. In that event, the plaintiff must be held to have established that the defendant is a trespasser, and, therefore, has rightly brought the suit in this Court for evicting him and for seeking possession. The defendant's contention that as he has claimed tenancy, the Civil Court must stay its hands completely on such a defence being taken, cannot be accepted. After considering the material on record to arrive at a conclusion as to whether the defendant's contention that he is a tenant residing in the suit premises being the family member of the last deceased statutory tenant would necessarily be required to be considered and evaluated, at least, prima facie, by the normal Civil Court where the suit is brought, and if it is found that there is no semblance of even relationship alleged by the defendant, his contention that the suit must be tried only by the Small Causes Court under the provisions of the Bombay Rent Act must fail.

16. In the present case, there is also material to show that in fact the defendant has been staying in Belvedere Court along with his wife. The premises, in Belvedere Court, it appears, is of the brother of the wife of the defendant. The plaintiff has also brought on record by producing the certificate issued by the Election Officer of the defendant being a voter. The said document is marked as 'X-I' for identification purpose as it appeared doubtful as to whether the said document could be accepted as the proof of the voter's list. The said document does show that in the Voters' list of September, 1990 of the Bombay Municipal Corporation, the address of defendant is shown as Municipal House No. 148, Belvedere Court, situated at Maharshi Karve Road, Bombay. Now, on careful consideration of the said document, it transpires that the said Election Officer has also certified that the said extract is correct and therefore is an extract of the Voters' List and not only a certificate as it apparently stated on the top. Therefore, the said document would be required to be admitted in evidence and read in evidence. The said document does establish that the defendant, in 1990, stayed and was residing in Belvedere Court as claimed by the plaintiff.

17. There is also further evidence on record Exhibit 'D', in the form of a certified copy of a writ petition being Writ Petition No. 1756 of 1990 filed by the wife of the defendant, against the Life Insurance Corporation and the Estate Officer appointed by the Life Insurance Corporation, and in the said petition the address of residence given by the wife of the defendant is of Belvedere Court at Maharshi Karve Road. It is difficult to accept that the defendant himself would reside in the suit premises i.e. 'Silla Villa' while his wife would reside in Belvedere Court at Maharshi Karve Road. There is not even the contention that the relations between the wife and the husband were strained. Under these circumstances, it must be accepted that there is sufficient evidence on record which shows that in 1990 the defendant resided at Belvedere Court at Maharshi Karve Road and not at Silla Villa which is situated at Byculla, Bombay. It therefore appears doubtful as to whether the contention of the defendant that he had been residing with Cooverbai at the suit premises is truthful. Admittedly, the marriage of the defendant with his wife took place on 9-8-1973. Cooverbai died in 1975. In the petition referred to above there is a statement made by the wife that she married the present defendant and continued to reside in Belvedere Court on second floor with him. Therefore, even the contention of the defendant that at the time of the death of Cooverbai he was with her in the suit premises is also doubtful and no reliance can be placed on it. The defendant has also not lead any other evidence except of his own wherein he has come out with a contention that the submission made in the writ petition referred to above by his wife and her brother is not correct. He hastened to correct himself by saying that what he wanted to say was that the said statement was not entirely correct and it was not correct to the extent of his staying with wife at Belvedere Court continuously. He has also come out with the contention in his deposition that he resided with his wife at Beldevere Court occasionally and that in fact his wife had been residing at Belvedere Court permanently. However, he has also very clearly admitted that it was not because of any strained relations with his wife that she has been residing at Belvedere Court and that she only occasionally resides with him. The said story does not appear to be truthful on the face of it and cannot be accepted. It appears that an attempt is being made to wriggle out of the situation which is spelt out from the statement made by the wife of the defendant in the petition wherein she has clearly stated that she and her husband have been residing in the Belvedere Court. Hence, I have no hesitation to conclude that the defendant has not been able to establish that he has been residing with deceased Cooverbai the statutory tenant at the time of her death, and the plaintiff, on the other hand, has established that he (the defendant) had been residing with his wife at Belvedere Court.

18. In the result, the plaintiff must be held to have established that the defendant is a trespasser and has no semblance of right of occupation of the suit premises. Hence, all the Issues must be - answered in favour of the plaintiff and against the defendant. The suit of the plaintiff, therefore, will have to be decreed in terms of prayer Clauses (a) and (b).

19. The plaintiff has also prayed for the mesne profits and as damages for the defendant's wrongful use and occupation of the suit premises till the date of the suit at the rate of Rs. 500/- per month and interest thereon, and also for a further period till the defendant vacates and hands over the peaceful possession of the suit premises to the plaintiff. Even this prayer of the plaintiff would be required to be granted. The plaintiff has actually stated in his evidence that the ground floor of Silla Villa is of the area of about 25000 to 3000 sq. feet exclusive of servant's quarters and he will get about Rs. 5,000/- per month as compensation for the said premises if he were to give it either on tenancy or on leave and licence basis. The defendant, though has entered into the witness box, has not even contradicted the said statement of the plaintiff in his deposition. In view of this, though, it appears that after the filing of the suit, the defendant has been paying Rs. 267/- per month plus Rs. 154/- as taxes for six months, the said amount cannot be considered as the mesne profits which should be granted. Once it is held that the defendant is a trespasser in the suit premises, he would be required to pay the normal return which the plaintiff would have got if he would have either given the premises on rent or on leave and licence basis. The plaintiff's evidence that he would get more than Rs. 5,000/- per month is not contradicted but the plaintiff, has in his prayer Clause (c) claimed only Rs. 500/- per month as mesne profits and as damages for defendant's wrongful use and occupation till the date of the suit and also thereafter till the defendant hands over the vacant possession of the suit premises. The plaintiff therefore would be only entitled to mesne profits at the rate of Rs. 500/- per month.

20. In the result, the plaintiff's suit is decreed with costs in terms of prayer Clauses (a) and (b) and the plaintiff is also awarded mesne profits at the rate of Rs. 500/- per month for the use and occupation of the suit premises by the defendant till the date of the suit and thereafter till he hands over vacant and peaceful possession of the suit premises to the plaintiff.