Kashinath Gosavi Patil vs Govala Vyankanna Tatayya since deceased by heirs

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1995 Supreme(Bom) 160

IN THE HIGH COURT OF BOMBAY
Dudhat M.L., J.
Kashinath Gosavi Patil.... Appellant.
Versus
Govala Vyankanna Tatayya
since deceased by heirs.... Respondents.
Second Appeal No. 484 of 1985, decided on 13-3-1995.
Advocates appeared :
P.M. Pradhan, for appellant.
Mrs. S.S. Gokhale for K.J. Abhyankar, for respondents Nos. 1 to 3.

Headnote:Section 28 and Transfer of Property Act, Section 111 (g)-Landlord and tenant-Relationship of sine qua non for Section 28 of Rent Act.
       In the present case, both, in the trial Court as well as the lower appellate Court, the argument as regards jurisdiction was not advanced on behalf of the defendants. In spite of this the defendants could adverse this argument in the second appeal, but for the peculiar facts in the present case. Here, in this case the defendants have taken in a specific stand of disclaimer. Both the lower Courts have come to the conclusion that said stand is not bona fide The reason being through, the defendants have taken a stand that G was not the owner and his mother was the owner and that they entered into an agreement to purchase the said property for Rs. 2,000/- and as part performance they obtained possession they have produced no document to support this contention. Alternatively, the defendants have also taken a stand of adverse possession. It is pertinent to note that in this case the defendants also have admitted that they were the tenants of G and that G had addressed a notice dated June 19, 1975 informing them that the property was sold to the original plaintiff by a registered sale deed and calling upon them to attorn the original plaintiff as the landlord and pay the rent to him. It is also an admitted position that though the defendants received the aforesaid notice they did not give any reply nor did they pay the rent. The defendants also did not file suit for specific performance of the agreement as alleged. In view of these facts and circumstances both the lower Courts were justified in coming to the conclusion that the defence of disclaimer taken by the defendants is not bona fide. In view of this peculiar position the question is also to whether the defendants can get the protection of the provisions of the Bombay Rent Act which was made applicable to the suit premises when the suit was pending i.e. on August 10, 1983. According to court where the relationship of landlord and tenant between the plaintiff and the defendant was not in existence at the time of or even prior to the suit for eviction as a result of disclaimer of title the bar of iurisdiction of civil court does not apply. The relationship of landlord and tenant is a sine qua non for the attract ability of the provisions of Section 28. If such a condition is not fulfilled, it is open to the owner of the property to recover possession of the premises de hors the provisions of the Rent Act. By the disclaimer of the title, not only the contractual tenancy of the defendant comes to an end and the defendant becomes a statutory tenant so as to claim protection of the Bombay Rent Act, but disclaimer under Section 111 of the Transfer of Property Act is an act of renunciation by a lessee of his title as a tenant. The effect of such a disclaimer is that it bring to an end the relationship of landlord and tenant: the essential being by operation of law resulting from proprio motu (a voluntary act) of the tenant. There is no reason to imply in favour of such a tenant the sprouting of a statutory tenancy or the operation of the restructive provisions of the Rent Act in his favour. The voluntary action of the tenant takes the case out of the pale of Section 5 (11). Statutory protection under the Act is to a tenant who claims to be a tenant and who is ready to Willing to abide by the terms of the tenancy. A tenant who disclaims his tenancy does not fulfill the aforesaid qualifications In such Cases the dispute between the claims owner and the occupant ceases to be a dispute between a landlord and a tenant in regard to any matter covered by the Rent Act and it falls outside the purview of Section 28.
       Section 111 (g).
       See Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 -Section 28.

JUDGMENT - DUDHAT M.L., J.:—This second appeal is preferred against the judgment and decree dated August 3, l985, passed by the District Judge, Thane in Civil Appeal No. 403 of 1983 whereby the lower Appellant Court confirmed the decision of the Joint Civil Judge, Junior Division, Thane in R.C. Suit No. 796 of 1975 The original plaintiff (deceased) had filed suit against the defendant (deceased) for possession of the suit property i.e. House No. 387 situated in Survey No. 349, Hissa No. 2, Majiwade village, Taluka and District Thane. It was contended on behalf of the original plaintiff that the said property was purchased by him from Gajanan Madhavi by a registered sale deed dated June 19, 1975. In the said property the defendant-appellant was residing and running a cycle shop on a rental basis of Rs. 15/- per month. After the purchase of the said property by original plaintiff from Gajanan Madhavi Vendor-Gajanan Madhavi addressed a notice dated June 19, 1975 to the defendant informing him that the said property was purchased by the plaintiff and also called upon him to attorn the said plaintiff as his landlord and pay the rent accordingly. It is the case of the plaintiff that in spite of the said letter the defendant failed to pay rent of Rs. 15/- per month from the date of the purchase of the said property till the date of the filing of the suit and, therefore, after giving due notice as per the Transfer of Property Act terminating the tenancy of the defendant, the plaintiff filed the present suit for eviction. It was contended on behalf of the defendants that the original plaintiff was not the owner of the suit property. He further contended that Gajanan Madhavi was never the owner of the suit property. The defendants also contended that the suit property belonged to Rakhamabai, the mother of Gajanan Madhavi, and she had agreed to sell the suit property to the defendants for Rs. 2,000/-. In pursuance of the aforesaid agreement the defendants were in part possession. Alternatively, the defendants also claim that they are the owners of the property by virtue of adverse possession. Both, the trial Court as well as the lower Appellant Court, decreed the suit against the defendants by coming to the conclusion that the plaintiff was the owner of the suit property of which the defendants were the tenant and that they have committed default in payment of rent and, therefore, they are liable to be evicted. It is against the aforesaid concurrent finding given by both the lower Courts this second appeal is preferred.

2. Mr. Pradhan, the learned Counsel appearing on behalf of the defendants, contended that the decision of both the lower Courts is liable to be set aside as the same is without jurisdiction. He contended that in the present case the suit was filed by the plaintiff on December 20, 1975, and while the said suit was pending i.e. on August 10, 1983 the Rent Act was made applicable to the Majiwade village where the property is situated and the trial Court decreed the suit. Against the said decision the defendants preferred appeal and the same was also dismissed on August 3, 1985 From the aforesaid facts it is contended on behalf of the original defendants that since the Rent Act was made applicable pending the suit both the lower Courts had no jurisdiction to decide the suit under section 28 of the Bombay Rent Act and therefore the suit ought to have been dismissed on the ground of jurisdiction. To support the aforesaid argument Mr. Pradhan relied upon the ratio as laid down in the case of (Ramdas v. Monica)1, 1974 Mh.L.J. 539, and in the case of (Marutrao v. Eknath Shivram)2, 1980 Mh.L.J. 238. At the first blush the aforesaid argument as advanced by Mr. Pradhan is very attractive one. But according to me, in the facts and circumstances of the present case the ratio relied upon by him is not applicable to the case. Admittedly, in the present case, both, in the trial Court as well as the lower Appellant Court, the a

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