IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL REVISION APPLN. NO. 27 OF 2008 CIVIL REVISION APPLN. NO. 27 OF 2008 CIVIL REVISION APPLN. NO. 27 OF 2008 IN CIVIL APPEAL NO. 513 OF 2002 IN REGULAR CIVIL SUIT NO. 89 OF 1998 Shri Ramchandra Mahadeo Nale ... Petitioner (Org. defendant) Versus Shri Bhaskar Dattatraya Kamat ... Respondent (Org. plaintiff) Mr. A.P.Rege, Advocate, for the petitoner. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. CORAM: J.H.BHATIA, J. DATE : 29th January, 2008. DATE : 29th January, 2008. DATE : 29th January, 2008. P.C. P.C. P.C. 1. Heard learned Counsel for the revision applicant/original defendant. 2. To state in brief, the plaintiff-respondent filed Regular Civil Suit No.89 of 1998 for eviction, 2 possession and arrears of rent. The suit premises are situated at Village Saswad, Taluka Purandar, District Pune and the Rent Act is not applicable to the same. The plaintiff contends that this property was originally owned by his grandfather, Balwant Kamat. After his death, the property was recorded in the name of his sons. At present,there are 23 persons who are joint owners of this property. As some of the persons are living at different places, the plaintiff has been managing the suit property as Manager of the joint family. He has been taking care of the property, paying taxes, etc. According to him, he has inducted the defendant as a monthly tenant in the suit premises at the rent of Rs.150/- per month. As the plaintiff required the suit premises for his own use, by notice dated 29.11.1997, he terminated the tenancy agreement with effect from the end of December, 1997. The notice was served on the defendant no.1 on 1.12.1997. The suit was filed in 1998 wherein he claimed possession of the property, arrears of rent,etc. The defendant contested the suit and admitted that he was inducted as a tenant in the suit premises by the plaintiff. However, his main defence was that the plaintiff had not pleaded that he was authorised by the other joint owners of the property to file the suit for eviction. He also contended that the other joint owners were not joined as 3 plaintiffs to the suit and, therefore,the suit was bad for non-joinder of necessary parties. He took some other defences like inconvenience which maybe caused to him if the decree is passed. 3. After hearing, the learned trial Court accepted the contention of the defendant and held that the suit is bad for non-joinder of parties and the plaintiff was not authorised to file the suit and that he had failed to prove that he was the Manager of the joint family. With this finding, the learned trial Court dismissed the suit to the extent of eviction and possession, but passed the decree for payment of arrears of rent. The plaintiff-respodnent challenged the dismissal of the suit in Civil Appeal No.513 of 2002. The Appeal was allowed and the judgment of the trial Court came to be set aside. The learned appellate Court passed the decree for eviction. Therefore, the original defendant has preferred the present Revision Application. 4. The learned Counsel for the defendant/applicnt has fairly conceded that the Revision is based mainly on one point that the plaintiff was not authorised to file the suit for and on behalf of the joint family and he has not proved that he was the Manager of the joint family. According to him, the learned appellate Court 4 had made up a case for the plaintiff which he himself has not pleaded and,therefore, the impugned judgment is liable to be set aside. 5. On perusal of the pleadings of the parties and the impugned judgment,it becomes clear that in the plaint, the plaintiff had specifically pleaded that the suit property is his ancestral property,which is owned by 23 persons, as members of the joint family. He is one of the joint owners. He also pleaded that he himself has been looking after the property as Manager on behalf of the joint family. He also pleaded that he was looking after the maintenance of the property, payment of taxes to the Municipal Council, etc. Not only this, he also pleaded that he himself had let out the suit house to the defendant and had inducted him in the suit house as a tenant. The defendant did not deny that he was inducted in the suit house as tenant by the plaintiff and not by any other member of the joint family. The learned appellate Court noted that even in his evidence,the defendant had admitted that he was inducted as a tenant in the suit house by the plaintiff and he was paying rent to him. This clearly indicates and corroborates the plea of the plaintiff that the plaintiff was, for the restricted purpose of management of the house, working as Manager or the representative 5 of the joint family. As he himself is one of the members of the joint family, it was not necessary for him to obtain authorisation specifically for the purpose of filing the suit for eviction. He could file the suit as one of the joint owners as he required the same for his self occupation. He may take possession from the tenant on the basis of the decree of eviction for and on behalf of all the members of the joint family. 6. It is material to note that in view of the admission of the defendant that he was inducted in the suit premises by the plaintiff and he has been paying rent to him, it becomes clear that the plaintiff is his landlord and he is a tenant. Under Section 116 of the Evidence Act, no tenant of immoveable property or a person claiming through such tenant shall,during the continuance of the tenancy be permitted to deny the title of the landlord. Thus, the defendant is estopped from challenging the title of the plaintiff in the property and he also cannot deny the relationship of landlord and tenant. As the plaintiff had inducted the defendant in the suit premises, he himself is landlord and the defendant is his tenant and therefore the plaintiff is entitled to file suit for eviction and possession. The learned trial Court committed an error and that error was rectified by the appellate Court. It 6 is difficult to find any fault, illegality, irregularity or perversity in the impugned judgment and order passed by the appellate Court. 7. Learned Counsel for revision applicant in support of his contention relied upon the judgment in the case of State of Haryana vs. Bharat Steel Tubes State of Haryana vs. Bharat Steel Tubes State of Haryana vs. Bharat Steel Tubes Ltd. AIR 1996 Delhi 198 Ltd. AIR 1996 Delhi 198 Ltd. AIR 1996 Delhi 198. In that suit, the State Government had given certain amount to the defendant as subsidiary for implementation of certain project. As the project could not be implemented, the Government filed a suit for recovery of the subsidiary amount. The High Court found that there was no evidence to establish that the officer who had signed the plaint was authorised by the State Government to file the suit. In my opinion, in the present case this authority is not applicable. Learned Counsel for the applicant also relied upon the judgment in the case of Siddu Venkappa Siddu Venkappa Siddu Venkappa Devadiga vs. Smt. Rangu S. Devadiga and Ors. AIR Devadiga vs. Smt. Rangu S. Devadiga and Ors. AIR Devadiga vs. Smt. Rangu S. Devadiga and Ors. AIR 1977 SC 890 1977 SC 890 1977 SC 890 wherein Their Lordships held that it is well-settled that the decision of a case cannot be based on grounds outside the plea of the parties. and that the appellate Court cannot make out a new case which was not pleaded by the party. In view of the pleadings and evidence on record in the present case,this authority also does not come to the rescue of the 7 defendant-applicant. 8. Taking into consideration the facts, pleadings, evidence and the legal position, I find that there is no substance in the present Revision Application. 9. In the result, the Revision Application stands dismissed. 10. At this stage, learned counsel for the applicant/defendant makes a request that the decree may not be executed for a period of three months and he also makes a statement that the defendant shall file an undertaking that he will vacate the premises within three months without any obstruction. In view of this request, the decree for eviction shall not be executed for a period of three months subject to the applicant/defendant filing an undertaking before this Court within two weeks from this date that he shall vacate the premises within three months from this day without any obstruction, shall pay all arrears of rent and shall not create any third party interest in the suit property. 8 (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)