1 sa370-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.370 OF 2010 WITH CIVIL APPLICATION NO.937 OF 2010 Mohammad Khan Bane Khan ..Appellant Vs. Sayyed Hussain Sayyed Saheb and ors. ..Respondents ......... Mr.A.N.Mulla, for appellant. ......... CORAM: R.G.KETKAR, J. DATE : 12th JULY, 2010. P.C. : Heard learned counsel for the appellant, at length. 2] This appeal is preferred by the original defendant challenging the judgment and decree dated 31 st March, 2010 passed by the learned Principal District Judge, Nashik in Civil Appeal no.139 of 2007. By this judgment and decree, the learned District Judge allowed the appeal preferred by the respondents original plaintiffs and set aside the judgment and decree dated 21 st April, 2007 passed by the learned Jt. Civil Judge, Junior Division, Nashik in Regular Civil Suit No.336 of 2005 and decreed the suit instituted by them. The learned District Judge directed appellant to hand over the vacant 2 sa370-10.sxw possession of the suit site, as more particularly described in paragraph 1 of the plaint, to respondents-plaintiffs after removing the shed, within three months from the date of the order. The parties shall hereinafter be referred to as per their original status in the trial court. 3] Plaintiffs instituted suit against the defendant for recovery of possession of the open land admeasuring 12 x 15 ft. out of City Survey No. 3800/2 situate at Nashik and for arrears of rent. It is their case that the suit property, as more particularly described in paragraph in paragraph 1 of the plaint, was rented out to the defendant as per rent note dated 31 st October, 1974 with effect from 1 st November, 1974. The agreement was initially made for a period of 11 months and the monthly agreed rent was Rs.700/-. The period was extended from time to time as per oral agreement between the parties. The defendant was to obtain requisite permission from the planning authority for carrying out construction over the plot. The defendant did not obtain any such permission and also failed to pay the rent since 1 st January, 1997. It is further case of plaintiffs that there was partition among the co- owners in the year 1997 and the suit property was allotted to plaintiffs. On 13 th March, 2005 they issued notice and terminated the tenancy. The notice was duly served on defendant on 15 th April, 2005. Since defendant failed to comply with the notice, plaintiffs instituted suit for recovery of possession under the provisions of Transfer of Property Act, 1882 (for short “T.P. Act”). Defendant resisted the suit by filing written statement and contended that the suit property was not the open land which was let out to him. He contended that the suit filed by plaintiffs by invoking provisions of the T.P. Act is not maintenable and the provisions of the Maharashtra Rent Control Act, 1999 3 sa370-10.sxw (for short “the Act”) are applicable. 4] On the basis of the rival contentions of the parties, the learned trial Judge framed necessary issues and the parties led oral as well as documentary evidence before the trial court. The learned trial Judge held that plaintiffs proved that the suit property came to their share during the partition effected in the year 1997. The monthly rent of suit property is Rs. 300/- and not Rs.700/- as contended by plaintiffs. It was further held that the defendant did not pay the rent since 1 st January, 1997 and that defendant has carried out the permanent construction without necessary permission. The learned trial Judge also held that defendant did not prove that the rented premises also includes the temporary shed. The learned trial Judge decided the issue no.9 viz whether the suit is maintenable in the present form against plaintiffs on the ground that the property was let out to defendant in the year 1974 and consequently the lease of the open land was governed by the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. After repeal of the said Act by the Maharashtra Rent Control Act, 1999, the tenancy of the open land is also governed by the Act and consequently, the provisions of the Act are applicable. Since the suit is instituted under the provisions of the T.P. Act, the learned trial Judge came to the conclusion that the suit is not maintenable as also notice issued under the T.P. Act was not legal. The learned trial judge dismissed the suit. Against this decision, plaintiffs went in appeal and by the impugned judgment and decree, the learned District Judge allowed the appeal and set aside the judgment and decree dated 21 st April, 2007 passed by the learned trial Judge and decreed the suit. It is against this judgment and decree, defendant has 4 sa370-10.sxw preferred the above Second Appeal. 5] In support of this appeal, Mr.Mulla submitted that the suit instituted by plaintiffs under the provisions of the T.P. Act is not maintenable. He submitted that the provisions of the Act are applicable as defendant is in possession of the open land together with shade. He submitted that the learned District Judge committed error in reversing the trial court’s judgment and decree as learned trial Judge held that the provisions of T.P. Act are not applicable and the parties are governed by the provisions of the Act. He further submitted that the rent note dated 31 st October, 1974 is not a registered document and inadmissible in the evidence. In support of this submission, he relied upon various judgments. 6] One of the issues framed by the learned trial Judge i.e.issue No.5 was to the effect that whether defendant proved that the rented premises already included the temporary shade? In so far as this issue is concerned, the learned trial Judge decided this issue against defendant and held that the rent note dated 31 st October, 1974 exhibit 34 was proved by plaintiffs by examining the attesting witness PW 2. PW 2 identified the signatures appearing on the said note. Even in the cross-examination, defendant admitted his signatures appearing on this rent note. Though defendant denied the execution of the said note, his cross-examination amply shows that he admitted the contents of the same. In paragraph nos.14 to 16 of the judgment the learned trial Judge held that what was let out to defendant was the open land. This finding of the trial court was not challenged by defendant and the learned District Judge also came to the conclusion that 5 sa370-10.sxw what was let out to defendant was the open land. After appreciating evidence on record, both the courts recorded findings that open land was let out to defendant. After going through the material on record, I do not find that the courts below committed any error on that point. 7] Now the question is about the applicability of the T.P. Act or the Act. The learned trial Judge held that when the open plot was let out to the defendant in the year 1974, the provisions of the Bombay Rents, Hotel and Lodging House Rates, Act 1947 were applicable and therefore after repeal of the said Act, provisions of the Act are applicable and the suit instituted by plaintiffs by invoking the provisions of the T.P. Act was not maintenable. This aspect is considered by the learned District Judge in paragraph 24 to paragraph 59 of the judgment. Section 5(8) of the Bombay Rents, Hotel and Lodging Houses Rates Act, 1947 defines the expression “premises” which includes the land used for non agricultural purposes. Section 7(9) of the Act defines the expression “premises” which admittedly does not include the open land. Section 58 of the Act provides that on commencement of the Act, the provisions of the Bombay Rents, Hotel and Lodging Houses Rates Act, 1947 among other Acts shall stand repealed. The conjoint reading of Section 7(9) and Section 58 of the Act is that after the coming into force of the new Act, the Bombay Rents, Hotel and Lodging Houses Rates Act, 1947 is repealed. The expression “premises” defined under Section 7(9) of the Act does not include the open land. Consequently, even the provisions of the Act are not applicable qua the open land. The parties are, therefore, governed by the provisions of the T.P. Act. In the case of Saraswat Co-operative Bank Ltd. and another Vs. State of Maharashtra and others, 2007 (1) Mh.L.J. 875 6 sa370-10.sxw and, in particular, paragraph 35 thereof it is held by the Apex Court that once the Act came into force it would have equal application to all the premises let out either before or after commencement of the Act. The learned trial Judge, therefore, clearly committed error in holding that the suit instituted under the provisions of the T.P. Act is not maintenable. 8] Mr.Mulla relied upon the provisions of Section 7(c) of the General Clauses Act to contend that even on repeal of the old Act, the right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed, shall not be affected. This aspect is considered by the learned District Judge in paragraph 36 of the impugned judgment wherein it was held that the provisions of Section 7(c) of the General Clauses Act cannot be pressed into service to hold that such a protection will continue to be available. The procedure prescribed for eviction would not constitute any right, privilege, obligation or inability. I am in complete agreement with the reasons and conclusions given by the learned District Judge in the light of the judgment of the Apex Court in the case of Saraswat Bank (supra). 9] Mr.Mulla relied upon the judgment of the apex court in the case of Anthony Vs. K.C.Ittoop & sons (2000) 6 SCC 394 to contend that since the rent note dated 31 st October, 1974 is not a registered document, it is inadmissible in evidence. Section 107 of the T.P. Act provides different modes of creation of leases. It lays down that a lease of the immovable property from year to year or for any term exceeding one year, or reserving an yearly rent, can be made only by a registered instrument. Now in the instant case it is not in dispute that under the rent note dated 31 st October, 7 sa370-10.sxw 1974 the property was let out to the defendant initially for a period of 11 months. In short, lease was not for year or for any term exceeding one year. It was also not reserving yearly rent. Considering the provisions of the second part of Section 107 of the T.P. Act which provides that all other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession, in my view, the present lease will squarely fall in the second part of Section 107 of the T.P. Act. That apart, the rent note dated 31 st October, 1974 exhibit 34 can also be received in evidence of any collateral transaction. The learned trial Judge as also the learned District Judge held that the rent note is duly established by the plaintiffs. I do not find any substance in the contentions raised by defendant that the rent note is not admissible in evidence for want of registration. In the case of Anthony (supra) the lease deed dated 4 th January, 1994 was executed for a period of five years. In fact, the judgment in the case of Anthony (supra) supports the case of plaintiffs rather than defendant. 10] Mr.Mulla relied upon the following cases:- 1. Raja Ram Kumar Bhargava (dead) by Lrs. Vs. Union of India, AIR 1988 SC 752. 2. Mudakappa Vs. Rudrappa and others, AIR 1994 SC 1190. 3. I.T.C. Limited Vs. Debts Recovery Appellate Tribunal and others, AIR 1998 SC 634. 4. Ramesh Chand Ardawatiya Vs. Anil Panjwani, AIR 2003 SC 2508. 8 sa370-10.sxw 5. Church of North India Vs. Lavajibhai Ratanjibhai and others, AIR 2005 SC 2544. 11] Mr.Mulla relied upon the above decisions to contend that the suit instituted by plaintiffs is not maintenable and the Civil court has no jurisdiction to entertain and try the suit. I have already held that the suit is instituted under the provisions of the T.P. Act and the provisions of the Maharashtra Rent Control Act, 1999 are not applicable. Having regard to the controversy raised in the present proceedings, in my opinion, the reliance placed by learned counsel on these decisions, is wholly misconceived and these judgments do not advance the case of defendant any further. 12] In support of his contentions that suit is governed by provisions of the Act and not the T.P.Act, Mr.Mulla also relied upon the decisions in the case of (1) Gangdas s/o.Moujibhai Patel Vs.Harshvardhan s/o.Balkrushna Bhadupotey & ors., 2003(2)All M.R. 127, and (2) Dossibai N B Jeejeebhoy Vs. Khernchand Gorumal, AIR 1966 (SC) 1939. In so far as judgment of this court in Gangdas (supra) is concerned, the learned single Judge in paragraphs 13 and 15 considered the provisions of Sections 7(9), 58 of the Act and held that the Act is not applicable to open lands and the same are governed by the provisions of the T.P.Act. The said judgment does not help defendant and is rather against him. As far as the judgment of Dossibai (supra) is concerned, in that case the question considered by the Apex Court was when a lessee takes lease of open land for the purpose of constructing on it buildings intended to be used for residence or for business, that letting is 9 sa370-10.sxw for residence or letting for business? In the instant case, both the courts after appreciating evidence on record held that open plot was let out for defendant. The question considered by the Apex court did not arise in the present case. 13] In view of this, I do not find that the present appeal raises any substantial question of law and the same is liable to be dismissed. Second Appeal is dismissed with no order as to the costs. In view of the dismissal of Second Appeal, the Civil Application does not survive and the same is also rejected with no order as to the costs. [R.G. KETKAR, J.]