Case: RAMESHCHANDRA DAULAL SONI Vs. DEVICHAND HIRALAL GANDHI (DEAD) THR. LRS. SMT. GULABBAI DEVICHAND GANDHI

2. The brief facts noticed for the purpose of disposal of these appeals is as hereunder. The property bearing S.No. 9/1/A measuring 22 guntas situate at Chahurana Bk., Taluka Nagar, Ahmednagar District presently bearing Plot No.19 within Ahmednagar Municipal Limits, measuring 2656 sq mtrs (hereinafter referred to as the ‘suit property?) which earlier belonged to Deshmukh Brothers was purchased by the plaintiff under a Sale Deed dated 08.08.1986. The plaintiff thereafter secured the Revenue entries to be recorded in his name. As on the date of purchase the predecessor of defendants No.1 and 2 was the tenant in respect of the suit property paying the rent of Rs.31/- per annum. The defendants No.1 and 2 thereafter continued as the tenants. The plaintiff informed the defendants No. 1 and 2 through the communication dated 06.12.1986 about the purchase and had sought for payment of the rents. The defendants No. 1 and 2 failed to pay the same and since according to the plaintiff the defendants were also not using the premises for the purpose for which it was let out, the plaintiff termed the defendants No. 1 and 2 as defaulters and instituted the Regular Civil Suit No.253/1989 seeking eviction of the defendants No. 1 and 2 as also the defendants No.3 to 7 whom the plaintiff described as the sub¬tenants in the premises.The defendants in the suit were issued with the suit summons. The defendants No. 1 and 2 appeared and filed their respective written statement. The defendants No. 3 and 5 did not choose to file the written statement while the defendants No. 4, 6 and 7 did not appear before the Trial Court and were therefore, proceeded ex¬parte. The defendants No. 1 and 2 opposed the claim made in the plaint on merits, apart from contending that the suit was barred by limitation. The fact that their predecessor had taken the premises under lease deed dated 22.05.1928 for a period of 31 years on the annual rent of Rs.31/- was admitted and that the lease deed expired by efflux of time on 22.05.1959 was also stated. The said defendants however contended that they were not informed about the purchase by the plaintiff. The Trial Court based on the rival pleadings had framed as many as eleven issues. The parties in order to discharge their burden cast under the issues had tendered evidence. The Trial Court by its judgment dated 13.10.1998 decreed the suit and directed the defendants No.1 to 7 to handover actual physical possession of the suit property and also to pay the amount of Rs.162/-. Further, enquiry regarding mesne profits was also ordered. The defendants No.1 and 2 claiming to be aggrieved by the said judgment preferred an appeal before the Principal District Judge, Ahmednagar in Regular Civil Appeal No.315/1998. The Appellate Court having adverted to the rival contentions has dismissed the appeal through the judgment dated 18.02.2012. The cross objections filed by the plaintiff and the defendants No.2 to 6 was also dismissed. The defendants No.1 and 2 claiming to be aggrieved by the said judgment were before the High Court of Judicature at Bombay, Bench at Aurangabad in CRA No.112/2012. The High Court having taken note of the rival contentions has by a detailed order dismissed the revision application. The analogous Civil Revision Applications filed by the remaining defendants in CRA No.113/2012 and 114/2012 were also disposed of by the same common judgment dated 20.07.2015. It is in that background, the defendants No.1 and 2 claiming to be aggrieved by the concurrent judgments are before this Court in this appeal. The connected appeal in C.A. No. 8450/2019 is against the order dated 15.10.2018 arising out of execution proceedings in regular darkhast No. 15 ofadverting to the nature of contentions put forth by the respective learned senior advocates for the defendants which is emphasised on the very maintainability of the suit, it is necessary to, at the outset, take note of the nature of consideration made by the Trial Court which has been upheld by the Lower Appellate Court and the High Court respectively. The nature of the contentions put forth by the parties is adverted to above. On the rival pleadings to that effect the Trial Court framed the following issues which read asIn the background of the issues framed, the plaintiff No.1 examined himself as PW-1 and the Trial Court has taken note of his deposition as at Exhibit 78. The manner in which the plaintiff had acquired right to the property has been stated and the Sale Deed was also marked in evidence as Exhibit 77/4. The fact of purchase was informed to the defendants No.1 and 2 through the notice dated 16.12.1986 which was marked as Exhibit 80. The said notice was essentially in the nature to attorn the tenancy whereupon the defendants No.1 and 2 were required to recognise the plaintiff as the landlord and pay the rent accordingly. The fact that the defendants No.1 and 2 were continuing as the tenants in respect of the suit schedule property under the lease deed dated 16.07.1928 was also brought in evidence by marking the same as Exhibit 100 whereunder the predecessor of the vendors of the plaintiff had leased the property to the predecessor of the defendants No.1 and 2. The fact that the lease was for 31 years was established and the Trial Court in that regard had also taken into consideration that the lease had come to an end by efflux of time as contemplated under Section 111 of the Transfer of Property Act. In that circumstance, the defendants No.1 and 2 were considered to be the statutory tenants under the Bombay Rents, Hotel & Lodging Houses Rates Control Act, 1947 (‘Rent Act? for short). Thus, having determined the relationship of landlord and tenant between the plaintiff and the defendant No.1 and 2 the Trial Court proceeded to consider the other aspects of the matter. In that regard the provision as contained in Section 5(11) of the Rent Act was taken note.Insofar as the defendants No.3 to 7 though the plaintiffs had contended that they are the sub¬tenants under the defendants No.1 and 2, in the absence of there being plausible evidence relating to subletting, the Trial Court rejected the contention and held them to be the trespassers liable to be evicted and, in such event, directed all the defendants to vacate. Insofar as the ground on which the eviction was sought, namely, the defendants No.1 and 2 had failed to pay the rent and, therefore, they were defaulters and also that the property was not being put to use for the purpose which it had been rented out, the trial court considered these aspects while answering issue Nos.2 to 4. In that regard the notice issued by the plaintiff at Exhibit 96 and the postal receipts at Exhibits 97 and 98 was taken into consideration whereby the plaintiff had demanded for payment of the rents. In that background the reply issued by the defendants No.1 and 2 at Exhibit 99 was taken note and the Court was of the view that the defendants No.1 and 2 did not indicate their readiness and willingness to pay the arrears of rent. Further the evidence tendered by defendant No.1 at Exhibit 106 was taken note wherein he had stated that the rent had not been paid from the year 1959 as nobody had demanded the rent from him. While taking note of the same the trial court has taken into consideration that the said statements of defendant No.1 cannot be accepted inasmuch as the plaintiff in fact had issued the notice on 01.09.1988 whereby the demand had been made. In that background the default in payment of rent was accepted and held against the defendants No.1 and 2.Insofar as the non¬user of the premises for the purpose which it had been rented out, the evidence to the effect that the premises was given for the purpose of storage of goods namely cotton was taken into consideration. The fact that there was a shed and the same not being put to use for the last several years as it was in a dilapidated condition was also taken note. Though a report of the Commissioner as at Exhibit 10 was available on record the same was not taken into consideration and relied upon for technical reasons. Be that as it may, the trial court has also taken into consideration the deposition of the defendant No.1 that he has been practising as an advocate in the High Court of Bombay and that at the point when the premises was taken on lease the grandfather of defendant No.1 was doing business of cotton ginning factory and he was also doing business in foodgrain. He had admitted that the business of cotton ginning factory is closed due to ban imposed by Maharashtra Cotton Act and the premises is not used for storage of cotton but was being used for storing agricultural equipments and cement. In that view, the trial court had also held that the premises was not being used for the purpose it had been leased and accordingly the grounds on which the eviction petition had been filed was upheld.On the contention relating to the defendants Nos.3 to 5 the same was considered while answering issue No.5 and as indicated above though they were not accepted to be the sub¬ tenants as claimed by the plaintiff, the trial court has held that they are trespassers and not entitled to continue in the premises. The lower appellate court had taken note of the evidence, reappreciated the same and in that background had upheld the judgment passed by the trial court.

Reasoning: 12. Having taken note of the contentions put forth, to the extent of the position of law as enunciated in the decisions cited supra there can be no quarrel whatsoever. However, what is necessary to be taken note is the fact situation in the instant case to arrive at a conclusion. The provision in Section 5(11)(c)(ii) noted supra is clear that the persons carrying on the business with the statutory tenant at the time of death would be entitled to continue as a tenant. The second part of the said provision is that in the absence of such member any heir of the deceased tenant as may be decided by the Court in default of agreement, would get the right. In the instant case the contention being urged that the two daughters of the deceased tenants were also entitled to be considered as the tenants under the statutory tenant, is a belated claim as an afterthought. As taken note while considering the factual aspect it has come on record that the plaintiff after having purchased the property under a registered sale deed had issued the notice dated 16.12.1986 as at Exhibit 80 and the trial court has also recorded a finding that through the said notice the plaintiff had informed the defendants No. 1 and 2 about the purchase of the suit property. That apart, subsequently a notice as at Exhibit 96 was issued to the defendants No. 1 and 2 demanding the arrears of rent. The said notice in fact had been replied by the defendants No. 1 and 2 through the reply marked at Exhibit 99. Neither at the first instance when the notice at Exhibit 80 was issued was it indicated by the defendants No. 1 and 2 that their sisters had also become the statutory tenants and the notice in the nature of attornment of tenancy should be issued to them as well, nor in the reply which had been issued when the arrears of rent was demanded did the defendants No. 1 and 2 contend that they were not the only one who were involved in the business along with the original statutory tenant and, therefore, all the legal heirs had succeeded as tenants on the death of the statutory tenant and, therefore, the demand, if any, is to be made from all of them.Though such contention is put forth the defendants No.1 and 2 did not attribute any right in favour of the sisters. In fact, as noted by the trial court the defendants No. 1 and 2 have filed on record pursis with a Exhibit 137¬A claiming to have deposited Rs. 1000/- on 09.9.2007 at ‘C? Register No. 465 without prejudice to their rights towards the rent, causes of the suit etc. This in our opinion would indicate that the defendants No. 1 and 2 were claiming right for themselves and did not at that stage state about the right if any, possessed by their sisters as well and have now raised the contention as an afterthought. Further in the evidence of defendant No. 1 he states that his grandfather took the suit premises on lease for the purpose of business of cotton ginning factory and he further states that the defendant No. 1 used the premises to store food grain and equipment of agricultural and also cement. This would indicate that the defendant was referring to the business being carried on by him alone and there is no reference to the business being jointly carried on with his sisters or that none of the legal representatives including defendant No. 1 were carrying on business with the statutory tenant so as to claim benefit of the second part of Section 5 (11) (c) (ii) and claim joint inheritance of tenancy. Further the said position is also clear from the evidence of the defendant witness Shri Vanaji Dhoodiram Dani who was examined to indicate that the premises was being used for the business and in that regard, in the course of his evidence he has stated that the defendants No. 1 and 2 are keeping cement and food grain in the godown and that he is serving with the defendants 1 and 2 since last 10 to 12 years but has not stated about the sisters also being involved in the business. If that be the position even from the evidence of the said witness, it would be clear that only first part of Section 5 (11) (c) (ii) would be available and the sisters of defendant No. 1 and 2 cannot claim right merely due to the fact that they are the legal heirs of the deceased tenant.That apart the suit had been filed in the year 1989 and the same had crossed the stage of appeal as well as revision before the High Court which had come to an end on 20.07.2015. In none of these proceedings the said sisters of defendants No.1 and 2 have taken any steps to get themselves impleaded by contending that they are proper and necessary parties failing which their right would be affected. At this stage it is necessary to take note that the learned counsel for the parties have brought to the notice of this Court that the said two sisters have filed a Civil Suit bearing No.516/2015 for declaration of their right which is pending before the Civil Court. The very sequence noticed above would indicate that the said sisters had not put forth their claim earlier and the present suit appears to be a ploy to put a spoke in the wheel on realising that the contention as put forth by defendants No.1 and 2 did not yield the desired result inasmuch as the Civil Revision Application came to be dismissed in the year 2015. Hence, neither the provision of the Rent Act or the decisions relied upon supra will be of assistance to the defendants No. 1 and 2. In that circumstance the contention as put forth by the learned senior advocate for the defendants No.1 and 2 is liable to be rejected, which we accordingly do.The position of law and decision cited cannot be applied in abstract. Therefore, the fact situation is to be noticed. Hence having taken note of the above contention what is noticed at the outset is that the predecessor of the appellants, namely, the defendant No.5 did not choose to file the written statement in the suit. In that circumstance the contention to the effect that the suit schedule property or a portion thereof was an agricultural property was never the contention raised in the suit or as to whether the issue in the suit should be referred to the Authority under the MTAL Act. In that view no issue in that regard arose before the trial court to consider as to whether the Civil Court had the jurisdiction to entertain the suit. That apart the undisputed fact is that the legal representatives of defendant No.5 had assailed the judgment of the court below in CRA No.114/2012 which was considered along with CRA No.112/2012 and claiming to be aggrieved by the dismissal of the CRA No.114/2012 had preferred SLP(C) No.31644/2015 before this Court. This Court through the order dated 23.11.2015 had dismissed the Special Leave Petition. Despite failing in the very proceeding relating to which the execution petition has been initiated the said legal representatives of defendant No.5 filed the application in execution proceedings claiming to be agricultural tenants and defeat the execution by terming the decree as a nullity. It is in the said proceedings the executing court having taken into consideration all aspects, dismissed the application by the order dated 15.10.2018. The executing court thus having taken into consideration the order dated 20.07.2015 passed by the High Court in CRA Nos.112, 113 and 114 of 2012 has dismissed the application. Further the right as claimed by the said legal representatives based on the entry contained in 7/12 extract has been rejected. We find no error committed by the executing court for the following reasons.In our view even assuming for a moment that the name of the predecessor was indicated in the 7/12 extract, the basis of such entry is not demonstrated to be made after the procedure being followed. Though the learned senior advocate has relied on the reference contained in the lease deed dated 22.05.1928 that the hut of the agricultural tenant is situate in the leased land, there is no reference made to the name of such tenant so as to indicate that the reference is to their predecessor i.e. defendant No.5 nor can the co¬existence of the agricultural operations being carried out in the land which was leased for storage of goods be assumed without definite material or demarcation indicated from records. The reference is only to the existence of a hut. That apart even if the same is taken as a reference to the defendant No.5 in the year 1928 the tenancy being continued and being operational on the tiller?s day i.e. 01.04.1957 is to be established to claim right under MTAL Act. Further while the MTAL Act creates right in favour of the agricultural tenant as on the appointed day the further procedure as contemplated is also required to be followed under Section 32G of the said Act. In the instant case apart from the fact that no such contention was urged in the suit by filing a written statement, no document to indicate that the procedure contemplated under the MTAL Act has been followed is available so as to conclude that the defendant No.5 had become the landlord of the property by operation of law so as to bar the jurisdiction of the Civil Court.In that view, the decision referred to supra by learned senior advocate would not be of assistance in the present case since the said decision only indicates the legal position and was applicable in the said case since in that case it was an admitted position that as on 01.04.1957 Tara Chand was the landlord and Janardan was the tenant. On the other hand, in the present facts as already noticed no such contention was taken at the first instance nor has it been conclusively established that the defendant No.5 was an agricultural tenant more so in the circumstance where the suit schedule property did not continue to exist as an agricultural property but was within Ahmednagar Municipal Limits which was a Town Planning Scheme as on the date of the suit. Though we are not oblivious to the fact that certain agricultural properties would subsequently get included in the Town Planning Scheme, in the instant facts if the claim of the defendant No.5 is to be taken note, not only the reliance on 7/12 extract but a subsequent inclusion of the name in the Municipal records based on any right that was crystalized in favour of defendant No. 5 based on the MTAL Act was also necessary to be established. In the absence of the same the contention put forth by the learned senior advocate cannot be accepted.