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In the High Court of Bombay at Goa
U.V. BAKRE
Nav Prakash S. Pednekar
Versus
Maharashtra State Financial Corporation & Others
FIRST APPEAL NO. 330 OF 2003
Decided on : 27-07-2012
Held - Contention not tenable - Obstructionist continue to be in possession as lessee even after expiry of lease, he is protected under Section 21 of Act - A tenant, cannot be prevented from purchasing tenanted premises from landlord - Non-disclosure of tenancy by obstructionist to auction purchaser/appellant is not a ground of eviction under Section 22 of Act - Appellant/auction purchaser knew about claim of obstructionist and yet participated in auction - Auction purchaser ought to be on guard and find out if there is any encumbrances to property which he was going to purchase at Court auction - Appeal devoid of merits - Dismissed.
Firstly, let Court see if there is any merit in the contention of the counsel for the auction purchaser that a tenant has no independent right to demised premises and to resist the delivery of possession of the premises to the auction purchaser under Rule 97 of XXI of CPC. There is no dispute that a person holding possession of an immovable property, as of his own right, can object in the execution proceeding under Order XXI, Rule 97 of CPC. There can also be no dispute that mere possession by third party would not be sufficient and the third party has also to show a right to possession independent of the judgment debtor.
In the present case, indisputably, the two registered lease deeds dated 16.12.1985, which are at Exhibits 92 and 93 respectively, executed by the respondent No. 2 in favour of the obstructionist, pertain to shop which is shown as hall in the sketch Exhibit-94 and the block which includes the bed room, dining room, kitchen, Pooja room, bath room and W.C., as shown in the said sketch.
A lessee of an immovable property has a right to possession and enjoyment of the leased property, to the exclusion of the lessor. Under the Rent Control Act, a tenant means any person by whom or on whose account or behalf the rent of any building is, or but for special contract would be, payable and includes in the event of his death the surviving spouse, or any son, or unmarried daughter or father or mother who had been living with him as a member of his family upto the date of his death and a sub-tenant and also any person continuing in possession after the termination of his tenancy, but shall not include any person against whom any order, or decree for eviction has been made.
In view of the provisions of the Rent Control Act, after the expiry of the lease deeds, the obstructionist became statutory tenant and if the obstructionist is found sometimes to be not occupying the demised premises then that may be a ground under Section 22(2)(f) of the Rent Control Act for his eviction. Such non-occupation, therefore, cannot amount to any kind of surrender of the possession of lease. In any case, admittedly the suit premises were found closed and physical possession of the same could not be taken. The evidence on record reveals that the keys are with the obstructionist. The respondent No. 2 has neither stepped into the witness-box nor has he been examined by the auction purchaser. As the obstructionist continues to be in possession as lessee even after the expiry of lease, he is protected under Section 21 of the Rent Control Act.
There is nothing in law preventing a tenant from purchasing the tenanted premises from his landlord. Conduct of the obstructionist, a tenant, as pointed out above, is not a ground of eviction under Section 22 or any other provision of the Rent Control Act. Section 21 of the Rent Control Act, inter alia provides that notwithstanding anything to the contrary contained in any other law or contract, a tenant shall not be evicted, whether in execution of a decree or otherwise, except in accordance with the provisions of this chapter. Hence, there is absolutely no force in the contention of the auction purchaser, in this regard.
U. V. Bakre, J.
This appeal is directed against the Order dated 09/09/2003 passed by the learned District Judge, South Goa (trial Court) in Civil Miscellaneous Application(C.M.A.) No. 4 of 1992.
2. In the said application(C.M.A. No. 4/1992) filed by the respondent no.1 (hereinafter referred to as “MSFC”) under Sections 31 and 32 of State Financial Corporation Act, 1951, against the above named respondents no. 2 and 3, the trial Court had ordered attachment of houses no. 144, 144/A and 144/B of Ward no.1 at Nagorcem, Canacona, which, in terms of the house-tax records maintained by the Canacona Municipal Council, were registered in the name of respondent no. 2. A warrant of attachment of immovable property under Order XXI, Rule 54 of the Code of Civil Procedure (C.P.C.) was issued by the trial Court, in respect of the said houses, copies of which were duly affixed by the Bailiff of the Court on conspicuous part of the said houses; on the Court building at Canacona; and Taluka Revenue Office, Chaudi Canacona. Subsequently, proclamation of Sale under Order XXI, Rule 66 of C.P.C. was issued in respect of those houses bearing nos. 144, 144A, 144B, admeasuring 2794 square metres in aggregate, situated in the land bearing Survey No. 167/14 of Chaudi, Canacona, with boundaries mentioned in the proclamation. The proclamation was duly published in news papers. Property was to be sold by public auction on 12/04/2002 on which day one Smt. Kamal Manju Naik Gaonkar and others filed objection for exclusion of an area of 895 square metres of the said land and by order of the same day, the said portion was excluded and portions “A” and “B” as shown on the plan at Exhibit 79/C were ordered to be sold. Subsequently, the said order dated 12/04/2002 was confirmed by further order dated 08/10/2002, thereby granting the application filed by Smt. Kamal Manju Naik Gaonkar and three others for exclusion of the said area of 895 square metres.
3. In the auction held on 12/04/2002, the appellant was the highest bidder at Rs. 10,55,000/-whereas the respondent no. 4 was the second highest bidder at Rs. 10,52,000/-. By order dated 14/06/2002, sale in favour of the appellant (hereinafter referred to as the “auction purchaser”) was confirmed and he was ordered to be put in possession. On 24/07/2002, the auction purchaser applied for possession to be given to him but on or about 16/08/2002, when the bailiff of the court went to execute the order for delivery of possession to certified auction purchaser of land, he found one lady by name Hema Fal Gaonkar staying in the house, who refused to vacate. Hence, the bailiff returned the order unexecuted.
4. The respondent no. 4 (hereinafter referred to as the “obstructionist”), then filed an application dated 02/09/2002 under Section 97 read with Section 151 of C.P.C., in that C.M.A. 4/1992.
5. The obstructionist, prior to the auction on 12/04/2002, had filed an application before the trial Court, on 28/03/2002 and the trial Court had ordered notice of the same to be given to MSFC but it seems that the same could not be given as the obstructionist did not pay process fee nor furnished copies of the application. The obstructionist had participated in the auction held on 12/04/2002, but as already stated earlier, he was the second highest bidder.
6. Case of the obstructionist was as follows :-
He had appeared on the date of auction and had disclosed to the Court that he was a tenant in respect of the building existing in the suit property, in respect of shop no. 2, by virtue of deed of lease dated 16/12/1985 on annual rent of Rs. 3600/-and in respect of block consisting of one room, one kitchen, toilet, bathroom, pooja room and area occupied by open space, by virtue of another lease deed dated 16/12/1985. The said two lease deeds were executed by the respondent no. 2 and were duly registered before the Sub-Registrar Canacona. The obstructionist is in possession of the said parts of the house right from the time o
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