( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 405 OF 1990 WITH CIVIL APPLICATION NO. 1378 OF 1997 Jafarkhan s/o. Samsher Khan .. Appellant Age. 52 years, Occ. Business, R/o. Dharur, Tq. Kaij, Dist. Beed. Versus 1. Taherabegum Sayad Jahadali died L.Rs. .. Respondents 1-a) Saberabegum Khurshid Ahmed Age. Major, Occ. Household, R/o. Neknoor, Dist. Beed. 1-b) Hajarabegum Jakirmiya, Major, Occ. Household, R/o. Neknoor, Dist. Beed. 1-c) Saharabegum Jaher Ali Age. Major, Occ. Household, R/o. C/o. Saberabegum Khurshid Ahmed, Post Neknoor, Tq. Neknoor, Dist. Beed. 1-d) Pashabegum Sardar, Age Major, Occ. Household, R/o. Sardar Hotel, Ambajogai. 1-e) Begumbee Jahir, Age Major, Occ. Household, ( 2 ) 1-f) Minhazbegum Khurshid Khan, Age. Major, Occ. Household, R/o. Bajaj Galli, Majalgaon, Dist. Beed. 1-g) Busharabegum Jaherali Age. Major, Occ. Household, R/o. C/o. Pashabegum Sardar, Sardar Hotel, Ambajogai, Dist. Beed. 2) Quamerali s/o. Nasarali, Age. 52 years, Occ. Agri., R/o. Moha Jagir, Tq. Kaij, Dist. Beed. 3) Rais Patel s/o. Amjadali Jahagirdar, Age. 42 years, Occ. Agri., R/o. Moha Jagir, Tq. Kaij, Dist. Beed. Shri A.R. Kale h/f. Shri S.V. Natu for the appellant. Shri S.V. Kulkarni, Advocate for respondent No.1. CORAM : P.R. BORKAR,J. DATED : 29.07.2009 ORAL JUDGMENT :- 1. This Second Appeal is filed by original defendant No.1 being aggrieved by the judgment and decree passed by the Civil Judge, Junior Division, Kaij, in Regular Civil Suit No. 27 of 1980, whereby defendant No.1 was directed to vacate the suit premises and it is further declared that plaintiff/respondent No.1 is entitled to get mesne profits and recovery of damages from the appellant/defendant No.1. ( 3 ) Said decree is further confirmed in Regular Civil appeal No. 231 of 1988 decided by the Additional District Judge, Ambajogai on 21st November, 1990. 2. Briefly stated it is case of the plaintiff/respondent No.1 that the suit house situated at Dharur is her husband’s property. Her husband expired on 10.04.1977. The plaintiff/respondent No.1 along with her children were staying in the suit house. On 16.02.1980 the defendant drove her out of the house and took over possession. Therefore, the suit for possession on title was filed. 3. Respondent No.2 and 3 who were original defendant Nos. 2 and 3 did not attend the Court and suit was decided ex-parte against them. The appellant/defendant No.1 submitted written statement at Exh.15. He stated that plaintiff/respondent No.1 is wife of Jahed Ali. Jahed Ali was owner of suit house. Jahed Ali inducted him as tenant in 1966 and the agreement for lease was for five years. Thereafter, on 17.03.1974 Jahed Ali entered into agreement of sale with the appellant/defendant No.1 on accepting Rs.300/- ( 4 ) and since then he is in possession of the property and as such suit is not tenable. 4. The Trial court framed issues whether appellant/defendant No.1 proved that he was in possession of the suit house on the basis of lease deed before 1966 and thereafter on the basis of agreement of sale and it is answered in the negative. It is held that the possession of the appellant/defendant was not legal. The District Court while deciding the appeal framed issue whether the defendant was entitled to protection of possession on the principle of part performance of agreement of sale. 5. Other point regarding lease was discussed in para 9 of the judgment. The appellant had made out a case that agreement of lease executed in 1966 was for a period of five years and therefore agreement of lease came to an end in 1971. Appellant Jafar Khan in his cross-examination specifically admitted that he was required to vacate the suit house after expiry of five years since the date of agreement of lease. Even the advocate for the appellant in the District Court conceded that the appellant could not claim ( 5 ) protection as of lessee after period of five years. It has also come in the evidence that since 1971 appellant Jafer Khan did not pay any rent to Jahed Khan. So it is said that he was not tenant by holding over but was a tenant at sufferance and no sooner owner asks such person to vacate suit premises, his possession will be that of trespassers. The learned advocate Shri Kale argued that under Section 106 of the Transfer of Property Act, notice should have been issued for termination of lease. In this case Section 106 of the Transfer of Property Act is not applicable because the matter will be governed by clause (a) of Section 111 of the Transfer of Property Act. Lease has come to an end by efflux of time limited by the lease deed. Moreover, even the appellant claimed that he continued to be in possession on the basis of agreement of sale after 1971. 6. So far as agreement of sale is concerned, the agreement produced at Exh.46 was held to be a doubtful document by the Trial Court, so also by the First Appellate Court. It is pointed out that Jahed Ali – the husband of respondent No.1/plaintiff had signed lease document of 1966, but the document of agreement of sale of 1971 (Exh.47) bear ( 6 ) thumb impression and there was no reason why Jahed Ali had put thumb impression when he was in a position to make signature. It was also stated that the attesting witness of the document is not examined to prove the document. Even Jafer Khan nowhere stated that the agreement of sale has not taken place at Moha Jagir, where it purports to have been executed. The price was agreed at Rs.500/- and plaintiff Jafer Ali did not come with a case that he was ready and willing to perform his part of contract as required by Section 53-A of the Transfer of Property Act. The evidence does not show that the appellant ever offered Rs.200/- to Jahed Ali or the respondents and demanded execution of sale- deed. In cross-examination, appellant Jafer Khan specifically admitted that Jahed Ali was to accept Rs. 200/- and execute sale-deed in his favour. So, it is not proved that the appellant was ready and willing to perform his part of the contract. 7. After going through the judgment of the Trial court and the First Appellate Court and after giving anxious thought to the arguments advanced before me, this Second Appeal deserves to be dismissed. Hence, this Second Appeal ( 7 ) is dismissed. 8. In view of disposal of this Second Appeal, Civil Application No. 1378 of 1997 does not survive. The Civil Application also stands disposed of. [P.R. BORKAR,J.] snk/2009/JUN09/sa405.90