1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7211 OF 2009 Smt.Beena alias Baby Rajkumar Rajput, Delivered assessor laid R/o.Maula Azad Road, Opp.Ghia Sadan, Deolali Gaon, Nasik Road, Nasik. .. Petitioner versus Balkrishna Bhika Sonawane, since deceased through his heirs and LRs. : 1. Smt.Vatsala Balkrishna Sonawane, 2. Amol Balkrishna Sonawane, 3. Sau.Savita Suresh Jadhav, 4. Sau.Neeta Subhash Borade, 5. Smt.Kavita Deepak Wadekar, 6. Sau.Lalita Vikas Jagtap, 7. Kum.Anita Balkrishna Sonawane Nos.1 to 5 and 7 r/o.Old Kumbharwada, House No.4002/B, Nashik. No.6 r/o. Karwadi, Tal.Kopargaon, Dist.Ahmednagar .. Respondents Mr.V.B.Nighot for petitioneer. Mr.P.D.Patil for respondents 1, 3 to 7. CORAM : A.S.OKA, J. DATE : 26th February 2010 JUDGMENT: . The submissions of the learned counsel appearing for the parties were heard on the earlier date. 2 2. The challenge in this writ petition under Article 227 of the Constitution of India is to an order of eviction passed by the competent authority appointed under the Maharashtra Rent Control Act, 1996 (hereinafter referred to as "the said Act"). 3. An application was made by the predecessor of the respondents under section 23 of the said Act. The predecessor of the respondents is Balkrishna who was the original Applicant. The allegation made is that the predecessor of the respondents the said Balkrishna was employed in India Security Press at Nashik. The allegation is that he had acquired half portion of plot no.9 more particularly described in the said application and had constructed a bungalow thereon. The allegation in the application is that the petitioner's husband requested the said Balkrishna to let out the said bungalow (hereinafter referred to as "the suit premises"). Accordingly, Balkrishna agreed to let out the suit premises to the husband of the petitioner at the monthly rent of Rs.1,500/- for a period of six months. It is alleged that when the possession of the suit premises was demanded by the said Balkrishna, the petitioner's husband threatened to kill him. It is alleged that the petitioner's husband did not pay the rent. It is stated in the application that subsequently the petitioner's husband was murdered. It is stated that as the petitioner 3 was in grief , the said Balkrishna did not demand rent and did not approach the petitioner calling upon her to vacate the suit premises. It is alleged that the petitioner has not paid the rent and has kept the suit premises locked. 4. In the application it was asserted that the said Balkrishna had applied for voluntary retirement. It was stated that the application was likely to be accepted and, therefore, the said Balkrishna will need the suit premises for his residence. It appears that the said application was amended for incorporating subsequent events of retirement of Balkrishna on 9th November 2002 and death on 24th October 2003. Reliance was placed on a certificate issued by the employer of said Balkrishna in terms of clause (c) of section 23 of the said Act in which it was certified that he required the suit premises for his own occupation and he was not holding any other premises in the limits of Nashik Municipal Corporation. 5. The petitioner contested the application by denying material averments in the application. The petitioner denied that her husband was inducted in the suit premises as a tenant. The petitioner contended that the said Balkrishna by an agreement for sale dated 19th October 1992 purported to sell the suit premises and the plot to one Colin George Brown. It is alleged that by document dated 18th 4 March 1997 the petitioner's husband purchased the suit premises from the said Colin George Brown. It is contended that there was no landlord and tenant relationship between the said Balkrishna and husband of the petitioner. 6. After the parties adduced evidence , the competent authority negatived the contentions raised by the petitioner and held that the petitioner's husband was a tenant inducted by the said Balkrishna at monthly rent of Rs.1,500/- per month. On the basis of a certificate issued by the said Balkrishna's employer, the competent authority proceeded to pass an order of eviction. The said order of eviction has been confirmed in the revision. 7. The learned counsel for the petitioner submitted that the landlord and tenant relationship was not at all established. He submitted that there was no evidence of tenancy. Inviting my attention to the evidence on record he submitted that the certificate contemplated by clause (c) of section 23 of the said Act was not produced along with the application and the same was produced after the application was filed. Therefore, he submitted that filing of application at the inception was bad in law as production of certificate was a condition precedent. He submitted that in fact the petitioner's husband was the purchaser of the property through said Colin Brown. 5 Inviting my attention to the evidence on record he submitted that in absence of any evidence of tenancy, the order of eviction could not have been passed. 8. I have given careful consideration to the submissions. As pointed out earlier, even the petitioner accepted in her reply that Balkrishna was the owner of the suit premises atleast at one point of time. The case made out by the petitioner is that by an agreement dated 19th October 1992, the suit property was sold by said Balkrishna in favour of one Colin Brown and petitioner's husband acquired the said property under a document dated 18th March 1997 from the said Colin Brown. It must be stated here that there is no dispute that the said Balkrishna was the owner of the plot. The contention of the petitioner is that under an agreement for sale the property was sold by Balkrishna to one Brown. It is not the case of the petitioner that there was any sale deed executed by Balkrishna. Reliance was placed only on agreement for sale which does not create any interest in the property. Therefore, on the basis of an agreement for sale, one cannot come to the conclusion that the said Colin Brown became the owner of the suit premises. In the examination-in-chief the petitioner came out with a case that Balkrishna sold the property by sale deed which was notarized by Notary Public. Further, the petitioner has stated that on 18th March 6 1997 an agreement for sale was executed by said Colin Brown in favour of her husband and on 26th March 1997 the said agreement was registered by a notary. Even taking the evidence of the petitioner as it is, the same does not prove the transfer of title by Balkrishna in favour of Colin Brown and subsequent transfer by Colin Brown in favour of her husband. The petitioner admitted in her cross examination that except for agreement for sale at Exhibit-116, she was not possessing any document of ownership. She admitted in the cross examination that there was no signature on the document when it was notarized on 26th March 1997. Thus, the basic defence of the petitioner regarding Balkrishna selling the suit premises was not established. 9. It must be stated here that the petitioner examined one Anant Jagtap, Advocate and Notary who deposed that on 20th October 1992 the said Balkrishna brought a document to his office which was in the form of an agreement for sale in favour of one Mr.Colin Brown. He stated that he read the said document and entered the details in the notarial register. He stated that the said Balkrishna signed the said documents in his presence. The said notary public was extensively cross examined on the entries in the register. Attention was invited to blank spaces on the various pages of the said register. The petitioner also examined said Colin Brown as a witness. He again relied upon 7 the agreement of sale of the year 1992. In the cross examination he admitted that he had no documentary evidence to show that he was in possession of the suit premises. He stated that he was paying the income tax. He admitted that he had paid a sum of Rs.50,000/- to Balkrishna by cash. He stated that he came to know about the husband of the petitioner from his friend but he was unable to remember the name of the said friend. 10. After considering all this evidence, the competent authority has made a detailed discussion of the oral and documentary evidence on record and disbelieved the version of the witnesses examined by the petitioner. Therefore, he came to the conclusion that apart from the entry in the notarial register, there was no other evidence of the agreement. In any case, as stated above, there was no transfer of title by Balkrishna who was admittedly the owner of the suit premises. In view of section 54 of the Transfer of Property Act,1882 an Agreement of sale does not creat any interest in the immovable property subject matter of it. It is not the case of the petitioner that any registered sale deed was executed by the said Balkrishna . After disbelieving the case made out by the petitioner, the competent authority accepted the version of the respondents regarding the existence of the landlord tenant relationship. On one hand the petitioner failed to establish the title claimed by her as owner which 8 was her only defence to the application for eviction and on the other hand it was not disputed that at one point of time Balkrishna was the owner. After appreciating the oral evidence, the case made out by the respondents has been accepted by the competent authority. 11. The certificate of the employer was produced and proved by the respondents. The statute has made such certificate the conclusive evidence of the facts stated therein. It is true that the said certificate was not filed along with the application and was produced subsequently . But this procedural lacuna of not producing the certificate along with the application will not defeat the claim of the respondents under section 23 of the said Act. 12. It is true that there is no elaborate discussion made by the learned Additional Commissioner. However, the learned Additional Commissioner has referred to the certificate. He noted that no evidence could be adduced to show that Balkrishna or respondents were possessing any other property. The Additional Commissioner observed that there was no evidence to show that Balkrishna had sold the property to Mr. Brown. 13. In view of the findings recorded by the competent authority, this is not a case where interference can be made in writ jurisdiction under 9 Article 227 of the Constitution of India. There is no merit in the petition and the same is rejected. 14. On the prayer made by the learned counsel for the petitioner, it is directed that the petitioner shall not be dispossessed for a period of three months subject to condition of petitioner maintaining status-quo as of today in respect of suit premises. The petitioner shall not create any third party interests and shall not part with possession in respect of the suit premises. (A.S.OKA, J.)