IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CIVIL CIVIL CIVIL APPLICATION NO. 5895 OF 2008 APPLICATION NO. 5895 OF 2008 APPLICATION NO. 5895 OF 2008 IN IN IN FIRST FIRST FIRST APPEAL NO. 1394 OF 2008 APPEAL NO. 1394 OF 2008 APPEAL NO. 1394 OF 2008 Mrs. Kunda Dashrath Doke ] .. Applicant Versus 1. I.B.P. Co. Ltd. & 4 ors. ] .. Respondents Mr. Sandesh Deshpande for the applicant. Mr. G.S. Godbole i/b M/s. Sarkar & Sarkar for the respondents. CORAM: S.B. MHASE & A.A. SAYED, JJ. DATED: 16TH DECEMBER, 2008 P.C. : 1. Heard both sides. 2. This Civil Application is for withdrawal of the amount which has been deposited by the appellant - original defendant. The appellant-original defendant is a Petrol Pump Company and the appellant wanted to establish a Petrol Pump on Pune-Ahmednagar Road, adjoining to the said road at village Rangangaon- Ganpati. The applicant - original plaintiff is possessed of three acres of land. Out of the said three acres, some portion was leased out to the appellant by Agreement dated 26th March, 1998 and thereafter by Agreement dated 7th October, 1999, three acres of land : 2 : has been leased out to the appellant at the rate of Rs.12,000/- per month per acre. It is not disputed that monthly tenancy has been created. However, the appellants were making payments tri-monthly. It is further not disputed that as per the said agreements, the amounts were paid till 30th June, 2001 and the appellant-original defendant is in arrears since 1st July, 2001. The applicant - plaintiff has filed the suit in question for recovery of possession of land and so also for recovery of arrears of rent. 3. The grievance of the appellant is that out of three acres of land, the appellant has used only one acre of land for the said Petrol Pump and rest of the two acres of land is in possession of the plaintiff- respondent. Thus, the claim made by the appellant-original defendant is that since two acres of land is in possession of the applicant-plaintiff, the appellants are not liable to pay the rent. However, besides such oral agreement, there is no documentary evidence on record and there is no proof in respect of such claim. It appears that till 2005, the son of the applicant-plaintiff was running the said Petrol Pump, but, however, that was a dealership transaction of the son and the Petrol Pump company, independent of the lease deed and that cannot be taken as a valid ground : 3 : for non payment of rent. 4. Thus, what we find is that the rent from 1st July, 2001 is due and payable. However, it appears that the suit has been filed on 30th July, 2005, and the court has found that the applicant-plaintiff is only entitled to rent of three years earlier to the filing of the suit and, therefore, while passing the decree, the court has passed a decree in respect of the amount for three years i.e. Rs.12,96,000/- and on that interest has been charged and thus the amount with interest which has been deposited is Rs.19,63,953/-. By the present Civil Application, the applicant-plaintiff is claiming release of this amount. 5. What we, prima facie, find is that out of three acres of land, already Petrol Pump has been constructed by the appellant-company in one acre and they are running the business on the said premises. The dealership of the said Petrol Pump which was given to the son of the applicant has been terminated and now some third party is running the said Petrol Pump. Apart from that, there is no evidence to demonstrate that the remaining two acres of land which have not been not utilised by the company is in possession of the applicant-plaintiff. In this respect, only an oral case : 4 : has been made out by the appellant. That apart, since there is a registered document in favour of the appellant-company creating lease, unless there is some other document transferring the said property to the applicant-plaintiff, it cannot be assumed that the land is in possession of the plaintiff. The trial court has also found that the appellant has failed to prove the oral agreement to that effect and, therefore, we find that the arrears of rent are due from 1st July, 2001. 6. However, the trial court has only granted three years arrears of rent. Since the applicant - plaintiff has approached the court at a late stage, the amount which is within the period of limitation has been decreed and the amount which has gone beyond the period of limitation has not been decreed by the trial court. Under these circumstances, what we find is that the applicant-plaintiff is entitled to get full amount of Rs.19,63,953/-. 7. Mr. G.S. Godbole, the learned counsel for the appellant tried to persuade us that the amount should not be released in favour of the original plaintiff unless some conditions are imposed and/or the amount is secured so that in case the appellant succeeds, the amount can be recovered. We are not in : 5 : agreement with the learned counsel for the reason that firstly, the amount which is due in arrears from 1st July, 2001, is more than the amount which has been deposited in court. Besides that, three acres of land, as per the lease deed, are in possession of the appellant. The suggestion made by Mr. Godbole, the learned counsel for the appellant to keep a charge of this amount on this property cannot be accepted because the lessees have not paid the rent and when decree is passed for payment of rent, they are insisting on keeping a charge on the rent of the property of the lessor, thus trying to adjust the equities in a very fanciful manner which is not permissible in law. We do not find anything supporting in law to consider such a submission. However, since such a submission was made, we have recorded it. We, therefore, find that there is no substance in the submission made by the learned counsel for the appellant-original defendant. 8. In view of what is stated above, we direct the executing court viz. the Civil Judge, Senior Division, Pune, to release the amount of Rs.19,63,953/- which is deposited in Special Darkhast No.93 of 2008 in favour of the applicant - decree holder viz. the original plaintiff. : 6 : 9. Civil Application, accordingly, stands disposed of. [A.A. [A.A. [A.A. SAYED, J.] SAYED, J.] SAYED, J.] [S.B. [S.B. [S.B. MHASE, J.] MHASE, J.] MHASE, J.]