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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR

Writ Petition No. 3971 of 2015

Shri Narendra s/o Sadashiv Dalvi

V/s

Wasudeo Atmaram Borkute (Dead) Durgabai wd/o Wasudeo Borkute & 4 others.

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Office Notes, Office Memoranda of Coram,

Court's or Judge's orders

appearances, Court's orders of directions

and Registrar's orders

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Shri A.R. Prasad, Advocate for the petitioner.

Shri A.M. Ghare, Advocate for the Respondent No. 1,2,4 and 5.

CORAM : Z.A. HAQ, J.

DATED : 07/11/2017

Heard.

1.

The petitioner / original defendant has

suffered decree for eviction and possession

and the judgment passed by the District Court

granting decree is challenged in this petition.

2.

The respondents/plaintiffs filed civil suit

praying for decree for eviction, possession,

arrears of rent and inquiry into mense profits.

According to the plaintiffs, the defendant was

the tenant; he was in arrears of rent from

01/04/2003 till 31/12/2004 and had not paid

the arrears of rent in spite of service of notice

on him demanding rent. The plaintiffs further

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claimed possession of the suit property on the

ground that they require it for their own use.

3.

The defendant opposed the claim of the

plaintiffs contending that the plaintiffs entered

into an agreement to sale the suit property

with Smt. Shobha Kashikar, the agreement

having been executed on 02/02/1998 and on

execution of the agreement to sell, the

plaintiffs lost their status as landlord and had

no right to claim rent from the defendant. The

defendant opposed the claim of the plaintiffs

for possession of the suit property on the

ground of bonafide requirement on the same

contention that the plaintiffs were not landlord

from 02/02/1998, after execution of agreement

to sell.

4.

The learned trial Judge conducted the

trial and by the judgment dated 23/07/2009

dismissed the civil suit accepting the defence

of defendant that the plaintiffs lost their status

as landlord on execution of the agreement to

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sell.

5.

The plaintiffs challenged the judgment

and decree passed by the trial Court before

District Court in appeal which is allowed by the

impugned judgment.

6.

With the assistance of the learned

Advocates for the respective parties, I have

examined the documents placed on the record

of the writ petition. I find that the learned

District Judge has properly considered the

evidence on record, rightly referred to the

provisions of Section 55 (4) of the Transfer of

Property Act and has rightly concluded that the

defence raised by the defendant is

unacceptable and the plaintiffs continued to

be landlord even after 02/02/1998 and had not

lost their status of landlord only because of

execution of the agreement dated 02/02/1998.

It is relevant to state that Smt. Shobha

Kashikar had filed Regular civil suit No. 443/

2001 against present respondents (plaintiffs)

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praying for decree for specific performance of

the agreement dated 02/02/1998. This civil suit

was dismissed. The Appeal filed before the

District Court has been dismissed and Second

Appeal filed before this Court is also dismissed.

7.

The contention of the defendant that he

is entitled to continue in possession of the suit

property as per Section 53-A of the Transfer of

Property Act, being in occupation of the suit

property alongwith Smt. Shobha Kashikar, is

rightly repelled by the learned District Judge.

8.

Undisputedly, the defendant has not

paid anything towards rent to