:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL REVISION APPLICATION NO.183 OF 2007 CIVIL REVISION APPLICATION NO.183 OF 2007 CIVIL REVISION APPLICATION NO.183 OF 2007 The Board of Trustees of the Port of Mumbai, a Body Corporate constituted under the Major Port Trusts Act, 1963 as amended by the Major Port Trusts (Amendment) Act, 1974 having its principal place of business at Vijay Deep, Shoorji Vallabhdas Marg, Ballard Estate, Mumbai 400 038 ...Applicant. v. 1. M/s. Byramjee Jeejeebhoy Pvt. Ltd. a company registered under the Companies Act, having its registered office at Jolly Maker Chambers II, Nariman Point, Mumbai 400 021. 2. M/s. Wadi Bunder Cotton Press Company, having address at Santacruz Estate Mazgaon, Mumbai 400 010 ...Respondents Mr.U.J.Makhija i/by Mulla & Mulla & CBC , adv. for the Applicant. Mr.Hiralal Thacker, Sr.Counsel with J.Daruwalla , advs. for the Respondents. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 17th April, 2008. DATE: 17th April, 2008. DATE: 17th April, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. Heard the learned counsel for the Parties. Perused the judgments rendered by the Courts below as well as the relevant documents. 2. The suit property involved in this case is the :2: piece of land admeasuring 3273.394 sq.yards known as Santacruz Estate situated at Mazgaon, Bombay. The Revision Applicant, the Port Trust of Bombay is the original defendant no.1 and the tenant over the suit property. Defendant no.1 had taken this property on lease under a lease deed dated 14-2-1872 from its then owner of the property. That lease deed was modified by another document dated 27-1-1914 and the defendant no.1 continued to be tenant over the suit land. Respondent No.1 before this Court is the original plaintiff, who had admittedly purchased this property from the erstwhile owner under the registered sale deed dated 24-7-1951 and thus, the plaintiff stepped into the shoes of the original landlord. Defendant no.1 continued to be in possession of the property as lessee and on the basis of that original document, it become lessee of the plaintiff. According to the plaintiff, in the year 1991, it came to know that the defendant no.1 had sublet the property to somebody and required the defendant no.1 to disclose as to whom the property was sublet but there was no response. On 17-12-1991 plaintiff issued a notice to the defendant no.1 pointing out breach of certain terms of the lease agreement. One of the breach was pertaining to subletting of the property by the said sale-deed. By notice, the plaintiff called upon the defendant no.1 to rectify breach within 21 days failing which plaintiff would take action as per law. By the said notice, the lease agreement was also terminated and :3: the defendant no.1 was called upon to vacate the land and to handover peaceful possession of the same to the plaintiff on expiry of six months from the receipt of the notice. As defendant no.1 failed to comply with that notice, plaintiff filed suit in the year 1993 before the Small Cause Court under Section 41 of Presidency Small Causes Court Act. In 1998 defendant no.2 M/s. Wadi Bunder Cotton Press Company , who is the respondent no.2 before this Court, was impleaded because it was revealed that defendant no.1 had sublet the suit of land in favour of the defendant no.2 under an agreement dated 17-6-1978. 3. Several defences were taken on behalf of the defendants and it was denied that there was any breach of the terms of the contract. It was also contended that notice terminating the tenancy was not valid. It was also contended that suit was barred by the limitation. According to the defendant no.1 suit should have been filed within six months from the service of the notice in view of the provisions of Section 120 of Major Port Trusts Act, 1963. Defendant no.2 also contended that the suit against it was barred by the limitation because it was in possession since 1978. 4. Several issues were framed by the trial Court. The learned trial Court found that allegations about breach of some of the terms of the contract were not :4: proved. However, the trial Court came to conclusion that as per the terms of the contract, defendant no.1 tenant could not sublet the property to anybody without written consent or licence from the landlord and the defendant no.1 had committed breach of that term of the agreement by subletting the property to the defendant no.2 under the agreement dated 17-6-1978. The trial Court rejected the contention of the defendant no.1 about the limitation holding that the lease was terminated as per the notice dated 17-12-1991 and six months time was given to vacate the premises. Suit was filed in the year 1993 and it was within the limitation. Trial Court rejected the contention that provisions of Section 120 of the Major Port Trusts Act are applicable and the suit is barred by the limitation. The trial Court held that this is not the suit pertaining to any assessment or contract under the Port Trusts Act but it is a suit between the landlord and the tenant covered by the provisions of the Transfer of Property Act and Limitation Act. With these findings, the trial Court passed the decree in favour of the landlord directing defendants to deliver vacant and peaceful possession of the land to the plaintiff within two months. 5. Against the judgment and decree passed by the trial Court, the defendant no.1 preferred appeal no.741 of 2002 and the defendant no.2 preferred appeal no.742 of 2002. Both the appeals came to be dismissed by the :5: appellate Court. Thereafter, defendant no.1 has preferred the present Revision Application. 6. Admittedly, the defendant no.1 had taken suit property on lease under an agreement of lease dated 14-2-1872 for a period of 999 years. A fresh lease deed was executed and registered on 27-1-1914 making some minor modifications in the original lease deed but the term of the lease continued to be 999 years beginning with the original agreement of 1872. The present plaintiff purchased the property under registered sale deed 24-7-1951 and thus, became owner and landlord of the property. It is also admitted that defendant no.1 had sublet this property to the defendant no.2 under registered agreement dated 17-6-1978 for a period of 20 years. As per the terms of the lease deed executed between the defendant no.1 and its landlord in 1872 and in 1914, the defendant no.1 could not sublet suit property to anybody without written consent or licence from the landlord. The plaintiff purchased the property with same rights and liabilities, which his predecessor in title had in terms of the provisions of Section 109 of the Transfer of Property Act. Thus, he stepped into the shoes of the original landlord. If the defendant no.1 wanted to sublet the property, it was incumbent for the defendant no.1 to obtain written consent of the landlord, i.e., the plaintiff. Admittedly, no such written consent was taken by the defendant no.1 while :6: subletting the property in favour of the defendant no.2. The learned counsel for the defendant no.1 / Revision Applicant vehemently contended that even in 1905, defendant no.1 had sublet the property under a registered document. However, admittedly, there is no evidence on record to show that sublease was in existence or in force in 1951 when the present plaintiff had purchased the property. Therefore, if prior to purchase of the property by the plaintiff, at sometime, defendant no.1 had committed breach of the contract and if that breach was not in existence when the plaintiff purchased the property, it can not be presumed that the plaintiff had purchased the property with knowledge that the defendant no.1 had already sublet the property. Besides, this, there is no material to find out whether in 1905, the defendant no.1 had sublet their property with or without written consent of the then landlord and, therefore, even if the defendant no.1 had sublet the property in 1905 that has no relevance for the purpose of the present matter. 7. The learned counsel for the defendant no.1 further contended that the defendant no.1 had sublet the property to the defendant no.2 on 17-6-1978 under registered sale deed. According to him, the suit was filed in the year 1993, i.e. almost 15 years after the sublease. The learned counsel contends that as the document creating sublease was registered document, :7: plaintiff was expected to have knowledge of that document but he kept silent for long period of 15 years. It is difficult to accept this contention. Even though when a document is registered under the Registration Act, it can be presumed that a concerned person, if makes a proper enquiry, could get knowledge of the execution and registration of such document. If a person wants to purchase the property or enter into a contract, he is expected to make necessary search to find out whether the contract, which he wants to enter into will be valid or will be in breach of any other contract. In the present case, defendant no.1 is holding that property as a lessee for a period of 999 years beginning with 1872. There was no reason for the plaintiff to keep watch on any documents, which could be executed by the defendant no.1 in favour of any third party. Therefore, merely because document of sublease was registered in 1978, it can not be inferred that the plaintiff had knowledge of that transaction. It is nobody’s case that the defendant no.1 or defendant no.2 had informed the plaintiff either before entering into an agreement to sublease or after that contract. If any of them would have informed the plaintiff about agreement of sublease and in spite of that plaintiff would keep silent without taking any action, it could be argued that there was implied consent but in absence of any intimation given to the plaintiff by any of the defendants, there is no scope to hold that there was :8: implied consent for sublease. Taking into consideration these circumstances, I find that the Courts below rightly came to conclusion that the defendant no.1 had committed breach of the terms of the contract in respect of subletting the property. 8. The learned counsel for the defendant no.1 contended that under the provisions of Transfer of Property Act, it was necessary for the landlord to give reasonable time to the defendant to remove the breach of contract, if any. Section 114A reads as follows: 114A. Relief against forfeiture in certain Relief against forfeiture in certain Relief against forfeiture in certain other cases.- other cases.- other cases.- Where a lease of immovable property has been determined by forfeiture for a breach of an express condition which provides that on breach thereof the lessor may re-enter, no suit for ejectment shall lie unless and until the lessor has served on the lessee a notice in writing- (a) specifying the particular breach complained of; and (b) if the breach is capable of remedy, requiring the lessee to remedy the breach; and the lessee fails, within a reasonable time from the date of the service of the notice, to remedy the breach, if it is capable of remedy. Nothing in this section shall apply to an express condition against assigning, under-letting, parting with the possession, or disposing of the property leased, or to an express condition relating to forfeiture in case of non-payment of rent. From the language of the Section 114A, it is clear that provisions of Section 114A are not applicable in the :9: case of subletting or under-letting property. From the notice issued by the plaintiff to the defendant no.1 on 17th December, 1991, it is clear that 15 days time was given to rectify the breach but admittedly no such rectification was made. The learned counsel for the defendant no.1 contends that the defendant no.1 had filed a suit against the defendant no.2 in 1987 itself for eviction. However, that suit is still pending. According to him, whatever was possible for the defendant no.1 to rectify the breach was already done. I am unable to accept this contention. The suit is pending for the last about 21 years between the defendant nos.1 and 2 and still there is no progress. Mere filing the suit and allowing the time to pass is not sufficient to rectify breach as expected under Section 114A of the Transfer of Property Act and in any case, provisions of Section 114A are not applicable to the facts of the present case because the defendant no.1 had committed breach of the term of the contract against subletting without written consent. 9. I find no reasons to disagree with the Courts below that the provisions of Section 120 of the Major Port Trusts Act has no application to the facts of the present case because the suit is based on lease agreement between the landlord and the tenant, which is covered by the Transfer of Property Act and Limitation Act. 10. Taking overall view of the matter, I find no illegality or irregularity committed by the Courts below in passing the decree for eviction. 11. In the result, the Revision Application stands dismissed. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)