Case Note & Summary
The plaintiff, Shaikh Jaber Abdulah J AI Sabah, owner of the suit building AlJabriya Court at Marine Drive, Mumbai, filed a suit for recovery of possession of flat No.6 from the defendants, who were alleged trespassers. The flat was originally tenanted to Jayantilal Desai, and after his death, his wife Urmila and daughter Renuka continued as statutory tenants under the Bombay Rent Act. The last statutory tenant, Renuka Shah, died on 23 April 2010 without leaving any heirs. The plaintiff claimed reversionary rights and sued for possession. Defendant No.1 claimed possession through an unregistered agreement purportedly executed by Renuka in his favour, alleging he lived with her before her death. However, he produced no documentary evidence of residence prior to her death and did not claim blood relationship or heirship. The court held that in a trespass suit, the plaintiff need only show title, which was established via the property register card. The burden shifted to the defendants to prove a right to possession. Relying on Vasant Pratap Pandit v. Dr. Anant Trimbak Sabnis (1994 Mh.L.J. 1450), the court noted that only the heir of a tenant living in the premises at the time of demise is entitled to tenancy under Section 5(11)(c) of the Bombay Rent Act, and a statutory tenancy cannot be bequeathed by testamentary disposition. The unregistered agreement was insufficient to confer any right. Consequently, the court allowed the plaintiff's notice of motion, directing the defendants to hand over possession of the suit flat to the plaintiff within eight weeks.
Headnote
A) Property Law - Trespass - Recovery of Possession - In a suit for trespass, the plaintiff need only show title; the burden is on the defendant to prove a right to possession. The plaintiff, as owner of the suit building, established title through the property register card. (Paras 1-3) B) Rent Control - Statutory Tenancy - Succession - Under Section 5(11)(c) of the Bombay Rent Act, 1947 read with Section 7(15)(d)(i) of the Maharashtra Rent Control Act, 1999, only the heir of a deceased tenant living in the premises at the time of demise is entitled to tenancy. A statutory tenancy cannot be bequeathed by will or transferred by an unregistered agreement. (Paras 2, 4-5) C) Evidence - Burden of Proof - The defendant claiming possession through an unregistered agreement from the deceased tenant failed to produce any documentary evidence of residence prior to the tenant's death and did not claim blood relationship or heirship. Hence, the defendant failed to discharge the burden of proving a right to possession. (Paras 4-5)
Issue of Consideration
Whether the plaintiff is entitled to recovery of possession of the suit flat from the defendants who claim through an unregistered agreement from the deceased statutory tenant, and whether the defendants have any right to resist possession.
Final Decision
The Notice of Motion is allowed. The defendants are directed to hand over vacant and peaceful possession of the suit flat to the plaintiff within eight weeks from the date of the order.
Law Points
- Trespass suit requires plaintiff to show title only
- burden on defendant to prove possession right
- statutory tenancy cannot be bequeathed by testamentary disposition
- only heirs of tenant entitled to tenancy under Section 5(11)(c) of Bombay Rent Act
