1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 393 of 1991 Date of decision:9/7/2009 For approval and signature: HON'BLE MR. JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes/ may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see the fair copy of the Judgment ? /No 4. Whether this case involves a substantial /No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the /No Civil Judges ? 6. Whether the case involves an important /No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G.Paralikar) Private Secretary office/sa393-91 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.393 OF 1991 Himmatrao s/o Wamanrao Ambhore, died, his L.Rs. APPELLANT ...Original Defendant no.1. a) Smt.Bakulabai w/o Himmatrao Ambhore, Age 60 years, Occ. Household, r/o Ambad, District: Jalna. b) Ambadas s/o Himmatrao Ambhore, age 30 yr., Occ. Student, r/o as above. c) Ratnamala w/o Shriram Kolte, age 30 yrs, Occ. Household, r/o as above. d) Meena w/o Ramesh Thaker, age 25 yrs, occu. Household, r/o.N-2, P-e/20/8, CIDCO, A’bad. e) Kalpana w/o Suresh Kunte, age 23 yrs, occ. Household, r/o Bodhegaon, Tq. Kannad, A’bad. f) Rekha w/o Raju Nikam, age 20 yrs, Occu. Household, r/o Kannad, Dist. Aurangabad. g) Mangal d/o Himmatrao Ambhore, Age 20 yrs, occu. Student, r/o Ambad, Tq. Ambad, Dist. Jalna. (Amendment made as per Additional Registrar’s order dt.19.8.1992 in Civil Application No.2989/92, Second Appeal No.393/91). APPELLANT 3 VERSUS 1. Ragwan Sharifa w/o Habib Mahasan, died, per L.Rs. 1A) Alwi w/o Mhaisan Chaus; 1B) Ali s/o Mahaisan Chaus, 1C) Abdulla s/o Mahaisan Chaus; 1D) Sheka Sharifa d/o Hamdu; 1E) Johre w/o Habib Ali; 2. Habib Alibi s/o Habib Salhe (Original Plaintiffs 1A to 1E and original Defendant No.2.) ...RESPONDENTS Mr. S.R.Deshpande, Adv., h/f Mr. R.D.Deshpande, Advocate, for the appellant. Mr.V.M.Kagne, Adv., h/f Mr. S.S.Chaudhari, Advocate, for respondent nos. 1(a), 1(b), 1(d), 1(e), 2. Respondent no.1c served. --- CORAM : K.U.CHANDIWAL, J. DATE : 9/7/2009 *** ORAL JUDGMENT : 1. Heard Counsel for the parties. The concurrent findings recorded against the original defendant no.1 in RCS No.193/1980, followed in RCA No.147/1984, are the subject of challenge in the Second Appeal. 4 2. Second Appeal is admitted on 22.8.1991 on following substantial questions of law between the parties: “2. That, lower Appellate Court has reversed the findings of trial Court in respect of rate of rent and accepted the case of present Appellant as such the case of the Respondent No.1 that of wilful default cannot stand and as such no decree can be passed on this ground. 7) That, the Respondent no.1 has accepted the rent even after issue of notice as such the Respondent no.1 has waived the right for determination of lease. 8) That, the Appellant is entitled to protection under Section 116 of Transfer of Property Act. “ 3. The plaintiff sought recovery of possession of a block of three rooms and also rentals as damages in lieu of the user. The defendant no.1 admitted ownership of the plaintiff, however, put up a stand that he was inducted by defendant no.2 on the rent of Rs.30/- per month. He denied any arrears against him as he has paid the rentals upto 30th June, 1979, to the plaintiff through defendant no.2. He accepted that rentals are due from July, 1979. The another contention that was raised by the defendant no.1 was that there was an agreement between the plaintiff and defendant no.1 to purchase the property and earnest of Rs.2500/- 5 was received. Defendant no.1 asserted, that he was ready to perform his part of the contract. 4. It is a matter of record, there is nothing beyond assertion of defendant no.1 about parting of Rs.2,500/- as earnest or any relief claimed in the proceedings. Consequently, no weightage can be attached to the contention of agreement of purchase. 5. The evidence on behalf of the plaintiff, as analysed by the Courts, needs no further dissection as the contention of the defendant no. 1 having been inducted through defendant no.2 has been proved to be false. Though some remittances were made by defendant no.1 through defendant no.2, the plaintiff did not challenge the same. 6. Defendant no.1, apparently, did not establish that he was clear in his rentals till June, 1979, nor there is evidence from defendant no.2 having received the amount from defendant no.1 or that he has paid over such amounts to the plaintiff. There should not be any controversy that the house belonging to the plaintiff was leased to the defendant no.1. The defendant no. 1, apparently, failed to establish the contractual relations between him and the defendant no.2 as landlord and tenant. Such stand is, apparently, an afterthought, to wriggle out his solemn undertaking against the landlord or the owner of the property. 6 7. In the First Appeal, a benefit was sought to be taken in terms of Section 53A of Transfer of Property Act. However, the same was also negatived, the learned first appellate Court has rightly observed that the request for remand of the matter was not the answer to the point in question. There was, obviously, breach of stipulation required under Section 53A to put them in acceleration and, consequently, this defence could not have been further coined. The evidence available on record having been sufficiently and substantially analyzed, indicated that the defendant no.1, the appellant, was in arrears of rentals, however, on calculation, the learned first appellate Court has corrected it to be Rs.1170/-. The acceptance of the rentals by the landlord after termination of tenancy will not tantamount to continuation of the tenancy as it is only a holding over, will not brand him as a tenant. The contention that reversal of finding about acceptance of rent by itself will give a ground for remand is again difficult. The substantial grounds formulated are answered against the appellant. The appeal is dismissed with costs. ( K.U.CHANDIWAL) JUDGE agp/sa393-91