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2021 Supreme(Bom) 187
IN THE HIGH COURT OF BOMBAY AT GOA
M.S. SONAK, J.
Sonu Sitaram Verenkar, (since deceased) represented by his legal heirs: & Others – Appellant
Versus
Nishith M. Prabhu Verlekar – Respondents
Second Appeal No. 105 of 2006
Decided On : 16-02-2021
For the Appellants :P. Talaulikar, Advocate
For the Respondent:Shivan Desai along with Varun Bhandankar, Advocates
Headnote:
lease - agreement dated 04/05/1977 - [mandatory injunction, permanent injunction, and damages] - [Sections 91, 92 of the Indian Evidence Act, 1872] - The agreement dated 04.05.1977 did not itself create any lease in favour of the plaintiff in respect of shop nos.2 and 3. The agreement was only executory and subject to completion of the ground floor premises, the plaintiff was entitled to insist upon a lease in respect of shop nos.2 and 3. The plaintiff was not entitled to proceed on the basis that the agreement dated 04.05.1977 had, by itself, created a lease in his favour in respect of shop nos.2 and 3. The findings particularly on the aspect of the creation of a lease as well as delivery of possession are vitiated by perversity. The finding on the aspect of the creation of lease is based on a misconstruction of the agreement dated 04.05.1977 as also the applicable legal provisions under Section 107 of the Transfer of Property Act and the provisions of the Registration Act, 1908. The findings on the aspect of possession are not backed by evidence on record and in any case, the evidence which travels beyond the pleadings could not have been looked into by the First Appellate Court. The evidence on record also bears out that the plaintiff expended an amount of Rs.81,656.72 in the year 1979 for the construction of the ground floor premises. It is the case of the plaintiff that out of this amount, the plaintiff has already recovered some amount thereby leaving a balance of Rs.75,356.72 receivable in the year 1983 or thereabouts. The plaintiff is already in possession of shop no.4 and no rents are being paid in respect of the occupation of shop no.4. The lease in respect of shop nos.2 and 3 was intended to cover 2/3rd of the construction expenses, which would come to approximately Rs.50,000/- or thereabouts. Therefore, although this appeal is hereby allowed and the impugned judgment and order dated 27.04.2006 made by the First Appellate Court is hereby set aside, the appellants are directed to pay to the plaintiff a sum of Rs.10,00,000/- within four weeks from today failing which this amount will carry interest @ 5% p.a. till the date of effective payment. The decrees made by the two Courts to stand modified to this extent. The defendants are at liberty to deposit the amount of Rs.10,00,000/- in the executing Court within four weeks from today after giving a written intimation to the learned counsel for the Plaintiff. Thereafter, the defendants will be entitled to apply to the executing Court for a direction to the Plaintiff to remove his locks on shop numbers 2 and 3 so that the defendants can use the said two shops unhindered by the Plaintiff. The executing Court to permit the Plaintiff to withdraw the amount of Rs.10,00,000/- only after the plaintiff removes the locks on shop numbers 2 and 3 or after the executing Court causes the locks to be removed through a suitable execution process. The appeal is disposed of in the aforesaid terms. There shall be no order as to costs.
JUDGMENT :
1. Heard P. Talaulikar for the Appellants and Mr. Shivan Desai who appears along with Mr. Varun Bhandankar for the Respondent.
2. This appeal was admitted on 08.03.2007 on the following substantial questions of law:
“(a) Whether the purported points for determination framed by the Appellate Court in para 9 of the impugned judgment are not at all points for determination in true sense as mandated by Order 41 Rule 31(a) of Civil Procedure Code?
(b) Whether the main point for determination was whether in the light of specific clause 4 of the agreement dated 04/05/1977 (Exh.PW1/A), the Plaintiff proves that there was agreement’ dated 04/05/1977?
(c) Whether the Appellate Court failed to follows the mandate of Sections 91 and 92 of the Indian Evidence Act, 1872 according to which, it was mandatory to have agreement in writing as per Clause 4 of the agreement, no oral evidence could be looked into except the lease in writing, which does not exist in the present case?
(d) Whether the Appellate Court failed to address to the issue of the consent of the wife (Defendant No.2) to the lease instead addressed to the implied consent of the wife to the construction of the building?
(e) Whether the findings recording by the lower Appellate Court are not based on the evidence on record, but only on the conjectures and surmises and therefore, the findings are perverse?”
3. By way of interim relief it was directed that the Assistant Registrar of this Court be appointed as the Receiver of the property in dispute. The Assistant Registrar was directed to take possession of the property and appoint such party to the dispute as her agent, who was willing to pay a higher royalty on usual terms and conditions and thereafter place such party in possession of the property in dispute. However, on 30.03.2007, the learned counsel for the parties stated that none of the parties were interested in entering into possession of the property in dispute as agents of the Court Receiver. Therefore, by order dated 30.03.2007, the interim order made on 08.03.2007 was recalled and it was directed that there shall be status quo as regards the suit property, which was admittedly under the locks of both the parties as on the said date.
4. Learned counsel for the parties submit that the position as obtained on 30.03.2007 continues till date. This means that the suit property is under the lock and key of both the appellants and the respondent.
5. The appellants are the original defendants or the legal representatives of some of the original defendants who expired during the pendency of the proceedings. The respondent is the original plaintiff in Civil Suit No.328/1983 instituted in the court of the Civil Judge, Senior Division, Bardez at Mapusa, Goa (Trial Court). As a convenience, the appellants will be referred to as the “defendants” and the respondent as the “plaintiff”.
6. The plaintiff, in this case, instituted a suit for mandatory injunction, permanent injunction, and damages. The plaint was amended and the relief of recovery of possession was also applied for.
7. The plaintiff has pleaded that he was in the business of distributing pharmaceutical and electronic products and defendant no.1 was the owner of a plot of land described in paragraph 2 of the plaint.
8. The plaintiff has pleaded that defendant no.1 wished to demolish the house existing in the plot and construct a two-storied building thereon. However, defendant no.1 did not have sufficient funds to undertake such a project. The plaintiff has pleaded that he also required accommodation for expansion of his business activity and therefore offered to incur necessary expenses in the first instance for the construction of the ground floor of the proposed new building in consideration of the defendant no.1 granting to the plaintiff a monthly tenancy of two shops on the ground floor. The plaintiff has pleade
