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IN THE HIGH COURT OF BOMBAY
A.V. Savant, J.
Ramkrishna Girishchandra Dode others ..... Petitioners.
Versus
Anand Govind Kelkar others ..... Respondents.
Writ Petition No. 2014, 2047, 2048, 2066 2093 of 1991, decided on 12/13-10-1998.
Advocates appeared :
S.M. Paranjape with Vhatkar in W.P. No. 2014 of 1991, for petitioners.
V.A. Thorat with V.B. Naik and Bharat Mehta i/b. Kanga Co. in W.P. No. 2014 of 1991, in W.P. No. 2047 of 1991, in W.P. No. 2048 of 1991, in W.P. No. 2066 of 1991 in W.P. No. 2093 of 1991, for the respondents.
B.P. Apte with A.K. Abhyankar in W.P. No. 2047 of 1991, in W.P. No. 2048 of 1991 in W.P.No. 2066 of 1991, for the petitioners.
Vhatkar, in W.P. No. 2093 of 1991, for the petitioner.
Order XXI, Rule 97-Eviction suit against tenant-Decree--Landlords executed sale-deed in respect of land-Execution of decree obstructed by sub-tenants-Vendee claiming under sale-deed took out obstructionist notice - There was a specific reference to the eviction decree obtained by vendors/landlords, in the agreement of sale as well as in the sale-deed-Plea that vendee was not competent to take out obstructionist proceedings, negatived.
Order XXI, Rule 97, Transfer of Property Act, Sections 105, 107 and Bombay Rents, Hotel and Lodging House Rates Control Act, (57 of 1947), Sections 13(1)(e), 14 and 15-A-Decree for eviction of lessee of plot of landExecution-L£5see had erected structures on suit land and inducted licensees or sub- lessees therein-Execution of decree obstructed by licensee/ sub-lessee-No privity of contract between lessors and sub-lessees-Law recognises no independent right in licensees or sub-lessees qua the land beneath the structures-Obstructionists as licensees or sub-lessee cannot, therefore, claim protection of Bombay Rent Act-If the licensees or sub-lessee or the structures were deemed to be the tenants in respect of land underneath the structures, such a position would clearly be illegal and recognition of the doctrine of dual ownership would be meaningless and futile - The leased property was a plot of land belonging to one A who died on 4th March, 1924, leaving behind son X and daughter Y. After obtaining probate of will of their father, X and Y on 28th July, 1940 executed a registered lease deed in favour of the original lessee of the said plot of land for a period of 50 years. There was a clause in the lease deed that the lessee had specifically covenanted with the lessor that the lessee will not assign or let or part with the possession of the said premises or erection and structure to be put up by the lessee thereon or interests thereon without the consent of the lessor. On 6th October, 1967, the original lessee expired leaving a will. On 15th November, 1968 a notice was issued by both X and Y terminating the tenancy of defendant No.1 - son of the original lessee. On 12th September, 1970, suit was filed by X and Y against son of the original lessee, his heirs and legal representatives and the executor of the will of the deceased lessee. The plaintiffs alleged that the deceased lessee had, in breach of the conditions of the lease, parted with possession of the construction put up on the said plot of land without first obtaining their consent. It was further alleged that there was failure to pay the rent and the municipal taxes. The plaintiffs prayed for decree of ejectment of the defendants. The defendants Nos. 1 and 2 stated that they did not claim any interest in the suit premises and that the entire estate of the deceased tenant was being looked after and managed by defendant No.3. The defendant No.3 denied the alleged breaches of the terms of the lease by the lessee. The trial Court decreed the suit of 4th October, 1978 and directed the defendants to vacate the suit premises and deliver vacant possession to the plaintiffs. On 29th December, 1978 an agreement of sale was executed by X and Y in respect of the land in dispute along with structures standing thereon. On 7th August, 1979 X expired. Thereafter Y filed execution application for executing the decree and for obtaining possession. The execution of decree was obstructed by several obstructionists who were occupying the structures put up on the suit land as sub-tenant/ sub-lessees. The trial Court as well as the appellate Court came to the conclusion that the obstructionists had filed to prove any right in respect of the premises in dispute and that they had caused obstruction at the instance of the judgment debtors. The obstructionists challenged these concurrent findings of fact in writ petition.
Held, that creation of tenancy must be established by a contract between the lessors (the plaintiffs) and the obstructionists. There has to be a privity of contract between. the plaintiffs and the obstructionists. If there was no privity of contract between the landlord and the sub-lessees and where the landlord is the owner of the plot which has been let out to the lessee, who erected the structures and inducted licensees or sub-lessees the law recognises no independent right in the licensee or sub-lessee qua the landlord of the plot of land. Where there is an embargo upon the tenant from subletting the land, it would be difficult to confer the status on the sub- tenant of the structure to be the tenant of the land beneath the structure. If the subtenants or even the tenants of the structures, were deemed to be the tenants in respect of the land underneath the structures, such a position would be clearly illegal and recognition of the doctrine of dual ownership would be meaningless and futile. If there was no privity of contract or privity of estate between the owner of the land on the one hand and the tenant of the structure on the other, the tenant of the structure would have no right whatsoever quo the land beneath the structure. In respect of the structure, the tenants right would be restricted to the persons who recognised him as a tenant qua the structure namely the lessee of the plot of land. The premises let out by the owner of the land, namely the landlord of the suit land was something different from the structures let out by the said tenant to the occupants of the structure viz. the present obstructionists. Such a position is not unknown in India where the concept of dual ownership is recognised. The contention, therefore, that the lessee of the plot having been permitted to put up or erect structures, the licensees of the structures inducted by the lessee were entitled to become the tenants of the land underneath the structures had no merit. 1979 BCR 670, AIR 1981 Bom 190, 1986 Mah RCJ 376, AIR 1998 SC 1605, 1987 Mah. Rent Control Journal 701, AIR 1985 Bom 429, AIR 1941 Bom 337 and CRA No. 1511 of 1960 dt. 21 November, 1962-Ref.; 1971 Mh LJ 369: 1973 BLR 140-Dist.
Order XXI, Rule 97 and Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947), Section 13(1)(e)-Eviction of tenant-Execution of decree obstructed by sub-tenants on ground that there was attornment of tenancy of obstructionists by landlords-Letters referred to as letter of attornment was not addressed by landlords to each and every obstructionist-Moreover, contents of letters were factually incorrect and were not proved-In absence of possession of land by landlords despite decree, there was no question of attornment of any tenancy by landlords. AIR 1967 SC 174-Referred.
Order XL, Rule 1 and Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947), Section 13(1)(e)-Suit for eviction of tenant Decree-Execution of decree obstructed by sub-ten ants-During pendency of suit, Court Receiver appointed to accept rent without the Receivers tenure being expressly defined-In the absence of specific order of discharge of Receiver at the time of disposal of suit by Court, though Receiver may be answerable to the Court his acceptance of rent from obstructionists would not amount to creation of fresh tenancy in their favour. 1993 (1) Mh LJ 727: 1993 (2) BCR 137, AIR 1975 Madh 231, AIR 1993 Bom 265, AIR 1991 SC 899, AIR 1980 SC 1605-Relied on; AIR 1962 SC 211, AIR 1958 SC 725 Referred.
Article 226-Belated plea - Eviction suit-Decree-Findings of trial Court confirmed by appellate Court-Execution of decree obstructed by subtenant-Plea taken for first time in writ petition that decree obtained in eviction suit was itself a nullity as the estate of deceased tenant was not properly represented in the suit-Contention negatived.
Articles 226 and 227-Eviction decree-Concurrent findings-Neither any error of law nor of jurisdiction in the two judgments-Appreciation of evidence found to be satisfactory and not perverse--Interference of High Court under Article 226 or 227 of the Constitution not called for.
Sections 67, 45 and 47 and Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947), Section 13(1)(e)-Decree for eviction of tenant-Sale-deed executed by landlords transferring property-Execution of decree obstructed by subtenants-Obstructionists relying on rent receipts alleged to have been executed by landlords in their favour in respect of structures on suit property- Vendee of said property had specifically denied signature on rent receipts to be those of either of two landlords-Despite this fact, neither of landlords were examined in obstructionist proceedings to prove their signatures on receipts-Order refusing to admit rent receipt in evidence, justified. 1967 Mh LJ 65 : 1968 BLR 228, 1968 Mh LJ 879 : 70 BLR 683, 1992 Mh LJ 840, AIR 1971 SC 1949-Relied on.
A.V. SAVANT, J.:---Heard all the learned Counsel; Shri B.P Apte, Addl. Advocate General, Shri A.K. Abhyankar, Shri S.M. Paranjape and Shri Vhatkar for the petitioners and Shri V.A. Thorat for the respondents.
2.Writ Petition No. 2014 of 1991 is by 8 obstructionists Nos. 90 to 98 for whom Shri S.M. Paranjape has appeared; Writ Petition No. 2047 of 1991 is by obstructionist No. 122 whereas Writ Petition No. 2048 is by obstructionist Nos. 124 and 125 for whom Shri A.K. Abhyankar is appearing. Writ Petition No. 2066 of 1991 is by 74 obstructionists for whom I have heard Shri B.P. Apte, Writ Petition No. 2093 of 1991 is by obstructionist No. 123 for whom Shri Vhatkar is appearing. The questions of law are common arising in more or less the same set or facts. The judgments and orders of the learned trial Judge as also by the Appellate Bench of the Court of Small Causes in the obstructionist proceedings were common. Hence, by consent, all matters are disposed of by this common judgment and order.
3.These petitions by obstructionists depict the usual scenario and the plight of the landlord decree holder while trying to execute the decree for eviction obtained by him under the provisions of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947 (for short, "Rent Act"). The premises in dispute is a plot of land bearing City Survey No. 268 situated at Kelkarwadi, Kelkar Road, Dadar, Mumbai belonging to one Gabriel M. Misquitta. He died on 4th March, 1924 leaving behind two children-son Dr. Francis Misquitta and daughter Rita Misquitta. On 10th October, 1924 Francis and Rita obtained probate of the Will of their father Gabriel. On 28th July, 1940 Francis and Rita executed a registered lease deed in favour of the original lessee Govind Ramchandra Kelkar. The lease was in respect of the said plot of land. It was for a period of 50 years commencing with 13th October, 1941. The lease rent was agreed at Rs. 1800/- per year for the first 25 years ending with 12th October, 1966 and for the next 25 years, it was agreed at Rs. 2400/- per year ending with 12th October, 1991. There is a clause in the lease deed that the lessee had specifically covenanted with the lessor that the lessee will not assign or let or part with possession of the said premises or erection and structure to be put up by the lessee thereon or interests therein without the consent of the lessor had first obtained.
4.On 6th October, 1967 the original lessee Govind Kelkar expired leaving behind a Will and appointing Francis Misquitta and original defendant No. 3 Manilal Kapadia as executors of his Will. On 5th November, 1968, notice under section 12 of the Rent Act was issued by both Francis and Rita Misquitta terminating the tenancy of defendant No. 1 Anand son of lessee Govind Kelkar. On 17th November, 1968 defendant No. 3 Manilal Kapadia gave a similar notice to defendant No. 1. In March, 1970 defendant No. 3 Kapadia was granted probate of the Will of the tenant Govind Kelkar who had expired on 6th October, 1967. This probate was subject to the rights of Francis Misquita who was also one of the executors.
5.On 12th September, 1970 Suit No. 672/ 4547 of 1970 was filed by the two plaintiffs Francis and his sister Rita Misquitta against (1) Anand Govind Kelkar, (2) heirs and legal representatives of the deceased Govind Kelkar the original lessee and (3) Manilal Kapadia the executor of the Will of Govind Kelkar. In the plaint, the plaintiffs alleged that the lease deed was in respect of the plot of land and it was agreed between the parties that the lessee will not assign or part with possession of the land or erections or construction put up by the lessee or any interests therein without the consent of the lessors had first obtained. However, the plaintiffs averred that deceased lessee Govind Kelkar had, in breach of the conditions of the lease, parted with possession of the construction put up on the said plot of land without first obtaining prior consent of
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