1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 327 OF 1998 Kamalbai w/o Shahaji Musale .. APPELLANT VERSUS Nanasaheb Tatyaba Kadam (deceased through LRs) .. RESPONDENT Shri P.K. Deshmukh, Advocate for the appellant. Shri K.K. Kulkarni, Advocate for respondent nos. 1(a) to 1(d). Respondent nos. 1(b) and 1(c) deleted Respondent no. 1(a), 1(d) and 1(e) served. Respondent no. 1(e) dismissed. ===== CORAM : R. M. BORDE, J. DATE : 16 th September 2009 PER COURT : 1 This is an appeal by original defendant raising exception to the concurrent judgments recorded by the courts below. 2 Plaintiff / respondent herein instituted suit claiming recovery of tenanted premises as well as for recovery of rent amounting to Rs.220/-. It is the contention of plaintiff that defendant no. 1 Laxmibai was inducted as 2 tenant over the suit premises and rent note to that effect was got executed. Period of lease stipulated in the rent note was 11 months and the rate of rent prescribed was Rs.20/- per month. After efflux of time, defendant no. 1 refused to vacate the premises. Defendant no. 2 is the daughter of defendant no. 1 Laxmibai. Laxmibai died during the pendency of the suit. Defendant no. 2admittedly is in possession of the property and she is also legal heir representing deceased Laxmibai, defendant no.1. 3 Defendants presented their written statement at exh. 11 and controverted the contentions raised by plaintiff. It is the case of defendants that the suit premises bearing no. 239 and 249 from ward no. 3 now bearing new house no. 242 and 352 was mortgaged to deceased Shankar Ganpat Kale for amount of Rs.1,000/- by way of executing conditional sale dt. 18-10-1971. It was agreed at that time that on making payment of Rs.1,000/- by deceased Shankar Kale to Nanasaheb Kadam, the mortgage was to be redeemed by Nanasaheb in favour of deceased Shankar. It is alleged by defendants that Nanasaheb accepted amount of Rs.1,000/- but refused to handover the suit premises. Hence Dagdu Kale brother of Shankar presented Regular Civil Suit no. 50/1977 against the present plaintiff and the same is pending. Hence, plaintiff Nanasaheb being creditor of deceased 3 Shankar and his brother being the debtor of present plaintiff has no right to file the suit. Defendant no. 1 Laxmibai is the sister of deceased Shankar and defendant no. 2 being the daughter of defendant no. 1 is also related to deceased Shankar. It is also contended by defendant no. 1 Laxmibai that she is staying in the suit house since 50 to 55 years as the daughter in law of Savalaram Jagtap and it is also contended by defendant no. 2 Kamalabai that she is also staying in the suit premises as the grant daughter of deceased Savalaram Jagtap. It is the contention of defendants that the plaintiff is not legal owner of the suit house. They further contend that the plaintiff with the help of his brother and other person by practising fraud have obtained signature and thumb impression on the document i.e agreement of lease. They have contended that they have paid Rs.1,000/- to the plaintiff which was taken by deceased Shankar Kale from the plaintiff before 21-12-1975. They requested the plaintiff to redeem the mortgage in their favour as they have paid an amount of Rs.1,000/-. It is contended that plaintiff is not entitled to claim ownership over the property and the suit presented by plaintiff is false and the same is liable to be dismissed. 4 Considering the rival contentions raised by the parties, trial court framed issues and after recording evidence of the parties, trial court came 4 to the conclusion that plaintiff has established his case and as such granted decree in his favour by judgment and decree dt. 19-12-1977. Trial court has recorded finding that the plaintiff has proved that defendants are the tenants in respect of the suit premises and the monthly rent settled is Rs.20/-. Trial court has also recorded finding that the plaintiff has established the rent note got executed from defendant no. 1. Trial court has also recorded finding that plaintiff has established tenancy and as such is entitled for recovery of possession. Judgment and decree passed by the trial court was subjected to challenge at the instance of defendants in Regular Civil Appeal no. 85/1982 which came to be heard and disposed of by the 2 nd Additional District Judge Osmanabad who was pleased to dismiss the same by judgment dt. 1-7-1988. First appellate court has also concurred with the findings of fact recorded by the trial court. Finding is also recorded by the first appellate court that the plaintiff has proved his title in respect of the suit property and has further established that defendant no. 1 was inducted as tenant on monthly rent of Rs.20/- for 11 months. It has also been recorded by the first appellate court that the defendants have failed to prove their title in respect of the suit property. Appeal as such came to be dismissed by the first appellate court. 5 5 I have perused the judgments recorded by both the courts below and heard arguments advanced by learned counsel for the respective parties. It is vehemently contended by learned counsel for the appellant that infact there was no notice issued as contemplated by section 106 of the Transfer of Property Act by the defendant and as such, the suit is not entertainable. Trial court has recorded finding that infact such a notice was issued and acknowledgment is placed on record at exh. 39 by the plaintiff. It has also been recorded by the trial court that defendant no. 2 had admitted in her cross examination that she has replied notice of the plaintiff and reply is placed on record at exh. 101. Apart from this aspect, it is canvassed by learned counsel for the respondent / landlord that when the tenant is denying title of the property, she cannot claim continuation of her possession. The fact that tenants have denied title of plaintiff and claim ownership in themselves, itself gives rise to a cause for seeking eviction of the tenant. Contention raised by respondent needs to be accepted. Defendants in their written statement have denied title of the plaintiff and have claimed title in themselves. Apart from this aspect, infact finding is recorded by the trial court in respect of service of notice. Learned counsel for the appellant has placed reliance on a judgment reported in AIR 1984 Supreme Court 143 in the matter of Satish Chand Makhan andn others vs. 6 Govardhan Das Byas and others. It is held by the Apex court that where a suit for ejectment and mesne profits was filed without a notice to quit under section 106 of the Transfer of property Act against a tenant in occupation of the rented property after expiry of lease, the suit would not be maintainable. In the instant matter, defendants however have denied relationship of landlord and tenant and claimed title in themselves. In this background therefore, reliance placed on the judgment cited supra is misplaced. Considering all the relevant aspects, I am of the opinion that view adopted by the courts below does not call for any interference in exercise of powers under section 100 of the Code of Civil Procedure. No substantial question of law arises for consideration in the appeal. 6 Learned counsel for the appellant has pointed out that trial court has granted decree in respect of recovery of amount of rent for 23 months although the plaintiff has claimed recovery of amount for 11 months amounting to Rs.220/-. Learned counsel for the respondent / landlord concedes to the mistake that has occurred while delivering judgment by the trial court. Considering this aspect, decree passed by the trial court in respect of recovery of amount of Rs.460/- shall stand modified and plaintiff would be entitled to recovery amount of Rs.220/- as claimed in the plaint. 7 Appeal is thus partly allowed to that extent. 7 Pending civil application, if any, does not survive and stands disposed of. ( R. M. BORDE, J.) dyb/office/sa327.98.odt 8 FARAD CONTINUATION SHEET NO.__________ IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGBAD. CIVIL APPLICATION NO. 3971 OF 2008 IN SECOND APPEAL NO. 327 OF 1998 Office Notes, Office Memoranda of | Coram, appearances, Court’s orders | Court’s or Judge’s orders or directions and Registrar/s orders | and Registrar’s orders | CORAM : R. M. BORDE, J. DATE : 16 th September, 2009 1 This is an application for condonation of delay of 1255 days occurred in filing application for setting aside order passed by this court dismissing the appeal for want of prosecution on 16-10-2004. 2 Heard. For the reasons stated in the application, application deserves to be allowed. Delay of 1255 days occurred in presenting application for setting aside order of dismissal of appeal stands condoned. Order passed by this court on 16-10-2004 is recalled and appeal is restored to its original number. Civil application stands disposed of. ( R. M. BORDE, J.) dyb / office /sa327.98.odt