1. Regular Civil Suit No.83 of 1997 for eviction and possession of the open land instituted by the respondent No.1/plaintiff-landlord was decreed by the Trial Court by its judgment and order dated 28-11-2011. Regular Civil Appeal No.191 of 2012 preferred by the appellant/defendant No.2-tenant challenging the decree passed by the Trial Court, was dismissed by the learned Ad hoc District Judge, Malkapur. Hence, this second appeal by the original defendant No.2-tenant.

2. The factual position, which is not challenged during the course of arguments, needs to be stated as under:

The suit property was the open land owned by one Govind Vishnu Saoji (Mahajan). By executing the registered sale-deed dated 1-1-1943, it was transfered in the name of the appellant/defendant No.2 Radhakisan Ramnath Malpani for a fixed period of 61 years, ending on 31-12-2003. The lessor Govind Saoji died on 29-12-1968 and the property was bequeathed under his Will in favour of the adopted son Dattatray Mahajan, who allotted it to his son Rajesh Mahajan, the respondent No.1/original plaintiff, in partition on 1-11-1978.

3. The respondent No.1/plaintiff Rajesh Mahajan filed Regular Civil Suit No.83 of 1997 on 11-6-1997 against the appellant/defendant No.2 Radhakisan Malpani for eviction and possession of the open land, which is the suit property, on the ground of breach of the terms and conditions of the lease agreement dated 1-1-1943. During the pendency of this suit, the Maharashtra Rent Control Act, 1999 came into force with effect from 31-3-2000, and the lease period of 61 years also expired on 31-12-2003. By way of an application for amendment filed on 20-6-2005, the respondent No.1/plaintiff introduced a new ground of lease coming to an end by efflux of time. The said application for amendment was allowed by the Trial Court on 2-7-2005.

4. The Trial Court rejected the claim of the respondent No.1/plaintiff for eviction and possession on the ground of breach of the conditions of the registered lease-deed. However, it allowed the said claim on the ground that the lease was determinable by efflux of time. The Trial Court recorded the finding that after expiry of the lease period on 31-12-2013, almost seven years have lapsed, but no case of mutual extension of the lease period is made out. Relying upon the decision of this Court in the case of Manoramabaiwd/o Shamrao Saoji and others v. Municipal Council, Saoner and another, reported in 2010(4) All MR 76, the Trial Court held that in case where the lease is for a fixed period coming to an end after expiry of it, notice under Section 106 of the Transfer of Property Act, 1882 is not necessary unless the tenant is holding over and the suit cannot be dismissed for non-issuance of such notice. The Trial Court also held that the suit property is open land and hence does not come within the purview of the Maharashtra Rent Control Act, 1999.

5. The Appellate Court has concurred with the findings recorded by the Trial Court. In addition to it, the Appellate Court has held that the remedy of the general law, i.e. the Transfer of Property Act, 1882, was available, and the landlord cannot be compelled to institute the proceedings before the Rent Controller for grant of permission to issue notice determining the lease, as contemplated under clause 13(1)(b) of the C.P. & Berar Letting of Premises and Rent Control Order, 1949 (for short, “the Rent Control Order”). The Appellate Court has further held that the provisions of Section 58 of the Maharashtra Rent Control Act, 1999 gave an option to the landlord to continue with the proceedings before the Rent Controller under the repealed Rent Control Order, or to institute the fresh proceedings under the new Act. It has further been held that the proceedings for recovery of possession in respect of the lease of open plot was not governed by the provisions of the Maharashtra Rent Control Act, and hence the Civil Court has jurisdiction to entertain, try and decide th