1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.260 OF 1991 S.RAwelsingh s/o Arjunsingh ..APPELLANT (orig.Pltff.) VERSUS Bajrang s/o Gangiya Gadap ..RESPONDENTS (Orig.Deft.) ***** Mr.AV Patil, Advocate for Appellant; Mr.NB Narwade,Adv. h/for NK Kakade, Advocate for Respondent. ----- CORAM : K.U.CHANDIWAL, J. DATE : 24th June, 2009. ORAL JUDGMENT : 1) Heard both counsel. 2) The judgment and order in RCS No. 26/1983 of learned Joint CJJD, Aurangabad was challenged by the aggrieved defendant in RCA No. 236/1987 to the learned District Judge and the learned District Judge, by the Judgment dated October 12, 1990 allowed the appeal and set aside the decree of possession. Consequently, the Second Appeal by the plaintiff. 2 3) The parties are referred by their status as plaintiff and defendant. 4) On 10.09.1991 the appeal is admitted on ground no.1 to be a substantial question of law. “(1) The learned Appellate Court has based its judgment on holding over under Section 116 of the Transfer of Property Act. There is no pleadings by the parties in respect of holding over. The Appellate Court has no power to make out a new case which was not pleaded by the party. Decision of a case cannot be based on grounds outside the plea of the parties. The impugned judgment therefore is liable to be set aside.” 5) The plaintiff is owner of the suit land. There was a lease-deed dated 1st August, 1980 with the map showing boundaries thereof, entered into by the plaintiff and defendant for a period of 2 ½ years with stipulations of monthly rental. During lease, it revealed that the defendant has encroached on other part of the plaintiff’s open land, which admeasures 170 sq.ft. 6) Clause 8 of the lease agreement stipulates as under - “(8) If the tenant failed to put the landlord in possession of the said premises on the 31st 3 day of July, 1982, the tenant will be liable to compensate the landlord by paying Rs.250/- (Rs. Two hundred & fifty) per month from 1.8.1982 till the landlord is put in possession of the said premises by the tenant or till the landlord is put in possession of the said premises by court by evicting the tenant from the said premises.” 7) Two aspects crept in the present case. What is the interpretation of clause (8) of the agreement and what about the 170 sq. ft. Encroachment caused by the defendant on the plaintiff’s property. 8) The defendant no where asserts in written statement that he has caused any encroachment on the plaintiff’s property. He even denies in his statement that there is any encroachment. According to him, these averments of the plaintiff are imaginary and concoction. The learned first Appellate Court in paragraph 10 of its judgment while castigating the evidence of Cadestral Surveyor has apparently swayed away, and made uncalled for remarks, contrary to pleadings, observing that the encroachment by the tenant could equally be to the road, abutting the property, as Surveyor has not made any measurement of the abutting road. 9) The provisions of Section 116 of the 4 Transfer of Property Act, to which reference is given by the learned Judge of the first Appellate Court in paragraph 9 are reproduced below - “If a lessee or under-lessee of property remains in possession therefor after the determination of the lease granted to the lessee and the lessee or his legal representative accepts rent from the lessee or under- lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month according to the purpose for which the property is leased, as specified in Section 106” 10) The Additional District Judge, did not bother to read the lease-deed and particularly clause 8, before giving effect to Section 116 of the Transfer of Property Act. The effect of clause 8 in no sense can be treated to be acceptance of holding over or continuation of the possession as a tenant. The terminology used in clause 8 is not rental but compensation to be collected by the landlord. The contention implies what was running in the mind of the parties when they have specific terms as on 1st August, 1980. There could not be any foreign meaning to terms as added by the learned Judge. 5 11) The Hon’ble Lordships of the Apex Court, in the matter of Sarup Singh Gupta Vs. S. Jagdish Singh and Ors.(AIR 2006 SC 1734), have observed in paragraph 8 as under - “8. In the instant case, as we have noticed earlier, two notices to quit were given on 10th February, 1979 and 17th March, 1979. The suit was filed on June 2, 1979. The tenant offered and the landlord accepted the rent for the months of April, May and thereafter. The question is whether this by itself constitute an act on the part of the landlord showing an intention to treat the lease as subsisting. In our view, mere acceptances of rent did not by itself constituted an act of the nature envisaged by section 113, Transfer of Property Act showing an intention to treat the lease as subsisting. The fact remains that even after accepting the rent tendered., the landlord did file a suit for eviction, and even while prosecuting the suit accepted rent which was being paid to him by the tenant. It cannot, therefore, be said that by accepting rent, he intended to waive the notice to quit and to treat the lease as subsisting. We cannot ignore the fact that in any event, even if rent was neither tendered nor accepted, the landlord in the event of success would be entitled to the payment of the 6 arrears of rent. To avoid any controversy, in the event of termination of lease the practice followed by courts is to permit the landlord to receive each month by way of compensation for the use and occupation of the premises, an amount equal to the monthly rent payable by the tenant. It cannot, therefore, be said that mere acceptance of rent amounts to waiver of notice to quit unless there be any other evidence to prove or establish that the landlord so intended. In the instant case, we find no other fact or circumstance to support the plea of waiver. On the contrary the filing of and prosecution of the eviction proceeding by the landlord suggests otherwise." 12) In this case there was no intention on the part of the plaintiff/the landlord to waive the terms of Clause 8 or to accept the defendant as a tenant after termination of the lease period by notice of termination on 6.7.1982. The other notice, which was issued through advocate about removal of encroachment, is even not replied by the defendant/tenant. It was specified by the communication dated 14.10.1982 that the plaintiff will be receiving the compensation @ Rs.250/- per month for the use of premises from the tenant until the tenant puts him in possession of the premises and till the tenant is evicted and the owner is put in possession of the premise through 7 Court in tune with the terms incorporated in clause 8 of the lease-deed. This was clear message to the defendant as to there was no continuation of lease or he could not have taken benefit of Section 116 of the Transfer of Property Act. Mere acceptance of rent as compensation, by itself will not culminate or evince an intention to treat the lease as subsisting. In the absence of any express or implied consent of the plaintiff in the capacity as owner of the property, it is difficult that there was such waiver operating in favour of the defendant. 13) The effect of Section 116 of the Transfer of Property Act will not give deeming renewal of the lease as mere acceptance of the rent for the subsequent months in which the tenant continued to remain in the premise, even after expiry of the period of lease, cannot be said to be a conduct, signifying landlord’s assent to the continuation of the lease agreement, even after expiry of lease period. This is more so, as could be seen in the lease deed, and particularly clause 8 thereof That apart, the intention of the plaintiff is spelt out in the communication dated 6.7.1982 (Exh.53); 23.8.1982 (Exh.55); 14.10.1982 (Exh.57). 14) Cadestral Surveyor Jadhav caused 8 measurement of CTS No.13162, and indicated encroachment caused by the defendant to the extent of 170 sq.ft. Added to it is the map annexed to the lease-deed, which demonstrates that at the south of the premises is Jalna Road; at the north , open land of CTS No. 13162 of the landlord; to the east of the premises, open land of CTS No.13162 of the landlord and on the west of the premise, again open land of CTS No.13162 of the landlord, leased to Batra and Vijayan. Thus, taking the situation from any angle, whatever encroachment the tenant has caused, was only to the property owned by the landlord/plaintiff and it could not be to the Government road, as held by the learned Judge in his judgment divorced from pleading and even evidence of Bajrang, the defendant. The defendant did not plead and prove he has caused any encroachment at the Government land and consequently, not answerable to vacate or remove himself from the encroached portion. The findings of learned Additional District Judge is influenced by an error of record and mis- appreciation of evidence. The learned Additional District Judge skipped the predominant fact of terms of lease. 15) The substantial question of law is answered in favour of the appellant. In the situation, the appeal is allowed. The judgment 9 and decree of learned Civil Judge, Junior Division, Aurangabad in RCS No.26/1983 is confirmed with costs. sd/- ( K.U.CHANDIWAL ) JUDGE bdv/office/sa260-91 Authenticate copy (BD VADNERE,PS)