Arun S/O Harendra Deotale vs Narhar S/O Mahadeorao Pande
2003 Latest Caselaw 333 Bom

JUDGMENT

P.S. Brahme, J.

1. This is a second appeal filed by the appellant/original plaintiff challenging the judgment and decree in Regular Civil Appeal No. 672/1984 passed by the Second Additional District Judge, Nagpur on 19.9.1989 reversing the judgment and decree passed in Civil Suit No. 1784/1983 passed by 18th Joint Civil Judge, Junior Division, Nagpur on 22.11.1984, decreeing the suit of plaintiff for possession.

2. This second appeal came to be admitted on 12.3.1990 by this Court on substantial question of law as stated in ground No. 1(a) as under :

1(a) Whether the proceedings in Regular Civil Suit No. 1784/1983 was tenable without permission of the Rent Controller as required by Clause 13 of the Rental Control Order.

3. In order to decide the controversy involved in this second appeal, it would be appropriate to state in brief plaintiffs claim in the suit. For the sake of convenience the appellant and respondent in this appeal are hereinafter referred as Plaintiff and Defendant respectively as per their original position in the suit. According to the plaintiff the suit premises bearing Flat No. 5 situated on the First Floor of Sangam Building, admittedly constructed by Nagpur Improvement Trust was let out to the defendant for residence as a monthly tenant on the rental of Rs. 200/- in addition to water and electricity charges. Father of the plaintiff was then President of Citizens Co-operative Housing Society Limited to whom plaintiff building was allotted by the Nagpur Improvement Trust for allotment of flats in the building to the members of the society. Defendant continued to occupy the flat which was allotted to plaintiff. When plaintiff came to Nagpur on his transfer from Pune he was accommodated by his father in Flat No. 1 of the said building as defendant was occupying plaintiffs flat No. 5 as tenant. As natural it could be plaintiff requested defendant to vacate the suit flat and also called upon defendant to vacate the flat by issuing notice dated 11.2.1979. However, defendant did not comply with the notice, but gave a false reply stating that he was informed that the owner of the suit flat was one Indirabai Dighe and defendant was asked to deposit rent in the post office and thus defendant refused to pay the rent to the plaintiff. As defendant failed to vacate the suit flat, plaintiff filed the aforesaid suit against defendant for possession of the flat after terminating the tenancy of the defendant. It is the case of the plaintiff that the building in which the suit flat is comprised was constructed in the year 1963 by Nagpur Improvement Trust and therefore, the provisions of the Rent Control Order, particularly seeking prior permission of Rent Controller, for filing the suit for eviction of a tenant are not applicable. Plaintiff also specifically pleaded that the defendant was estopped from challenging his title to the suit flat and setting up the title of a third person in view of Section 116 of the Indian Evidence Act. It was also averred by the plaintiff that by virtue of judgment in Regular Civil Suit No. 186/1983 the defendant was barred from denying the fact that he was tenant of plaintiff.

4. Defendant resisted the plaintiffs claim by his written statement Exh. 11 and traversed the averments in the plaintiff. Defendant denied that the plaintiff was owner of the flat. He also denied that the suit flat was not governed by the provisions of the Rent Control Order, He denied that plaintiff requested him to vacate the suit flat. He however, admitted that he received plaintiffs notice, but denied that he was estopped from denying the title of the plaintiff. He contended that the judgment in Regular Civil Suit No. 186/1983 did not operate as a res-judicata. He contended that the question of tenancy right was neither pertinent nor was necessary for the decision of that suit. In that suit both the plaintiff and his father fraudulently stated that the tenancy agreement with the defendant was entered into by the plaintiffs father and defendant. Said fact was admitted by plaintiff in his deposition in Civil Suit No. 707/1979 before the Small Causes Court which suit has been returned for proper presentation to the Court. Defendant further contended that the plaintiff by joining hands with his father fraudulently suppressed the true fact of agreement and played fraud on the Court, while getting a decree in earlier suit which came to be filed by defendant. Therefore, the decree passed by the Court in earlier suit was not binding on the defendant and that would not operate as res judicata.

5. Defendant further contended that the suit flat was allotted to one P.K. Dighe who died. The society illegally tried to cancel the allotment of the flat to Mr. Dighe and allotted it to the plaintiff. Father of the plaintiff was President of the society. When Smt. Dighe was informed that the allotment made to her husband was cancelled she raised dispute before the District Deputy Registrar, Co-operative Societies and her contention was that the cancellation of the allotment made in favour of her husband by the society was illegal and that has been upheld by the Registrar's nominee. The appeals against the said order were dismissed by the Maharashtra State Cooperative Appellate Court so also the revisions petitions. The said decisions are binding on plaintiff and would operate as res judicata. When the defendant was inducted as tenant by the President of the Society, the award regarding declaration that the allotment in favour of the plaintiff was already passed declaring it to be illegal.

6. It is the contention of the defendant that the tenancy agreement was with the society and not with the plaintiff. The plaintiff and his father had fraudulently tried to bring in the name of the plaintiff who had no title over the suit flat, there was no need to prove the contract between the plaintiff and the defendant. Defendant has specifically contended that the plaintiffs suit was not tenable in as much as the plaintiff did not obtain permission to terminate the tenancy of the defendant. The notification exempting the house built after 11.1.1951 from the operation of the Rent Control Order, 1949 being ultra vires, the protection given to the tenant in the order was available to the defendant. He therefore, urged that the suit be dismissed.

7. Before the Trial Court the parties went on trial with issues framed at Exh. 13. Plaintiff examined himself as well as his father as witness on his behalf. So far as the defendant is concerned, he examined himself alone. The documentary evidence mainly consists of rent receipt (xerox copies) admittedly Exhs. 45 to 56 issued by father of plaintiff to the defendant for having accepted the rent in respect of the suit flat. He also filed xerox copies of the tax receipt in the name of plaintiff showing that the plaintiff was the owner of the flat. The father of the plaintiff who was President of the Society also produced rent receipts Exhs. 25 to 27-A passed by him showing that the plaintiff was the owner of the flat which was let out to the defendant. He also produced xerox copies of the payment receipts showing that the plaintiff has paid full costs of the flat to the society and the flat has been recorded in the name of the plaintiff and Exh. 24 is the certificate of allotment of the flat to plaintiff. After considering the oral and documentary evidence on record the learned Trial Court held that the plaintiff proved that he was the owner of the suit flat and the defendant was occupying the same as tenant and the defendant failed to prove that he was occupying the suit flat under the agreement with the society. He also negatived defendant's contention that the month of tenancy used to commence from 15th day of each month. The Trial Court held that findings recorded in Regulars Civil Appeal No. 186/1983 were binding on the defendant. It was also held that issue of bonafide did not survive as the suit premises are not governed by Rent Control Order. The Trial Court therefore, in keeping with these findings decreed the plaintiffs suit as stated above.

8. It is pertinent to note that the Trial Court while observing that the defendant was estopped from denying the title of the plaintiff was bound by the findings recorded by the Court in suit bearing No. 186/1983 which was filed by the defendant. In paragraph 7 of the judgment the Trial Court has literally reproduced the issues and findings thereon recorded by the Court in that suit. It is significant to note that the issue No. 1 in that suit was "Whether the plaintiff proves that he was inducted as tenant in the suit premises by defendant No. 1 on behalf of the society", and the finding on this issue was in the negative. While the second issue was" does the defendant No. 2 prove that the plaintiff was inducted as tenant?" and the finding was in the affirmative. It is also matter of record that though defendant denied plaintiffs title vis-a-vis the suit flat, in his written statement defendant has not denied the fact that he has taken suit flat on rent from the father of plaintiff who was then President of the Society and that the suit flat was let out to him by the plaintiffs father on behalf of the plaintiff. Therefore, it was in that context that the Trial Court observed that the defendant was estopped from denying the plaintiffs title over the suit flat, so also, the factum of obtaining the suit flat on lease from plaintiff. In other words it stood concluded as a finding of fact that suit flat was obtained on lease by defendant from plaintiff and as such the plaintiff was lessor.

9. Defendant feeling aggrieved by the decree of possession preferred Regular Civil Appeal before the learned Additional District Judge. His appeal was allowed and the Appellate Court set aside the decree passed by the Trial Court and dismissed the suit. The Appellate Court however, confirmed the finding of the Trial Court that the defendant was a monthly tenant of the plaintiff. In addition to that the Appellate Court also confirmed the finding of the Trial Court that the defendant was estopped from challenging the title of the plaintiff by virtue of Section 116 of the Indian Evidence Act. However, the Appellate Court has reversed the finding of the Trial Court and held that the Trial Court committed an error in coming to the conclusion that the suit flat was not governed by the provisions of the Rent Control Order and that the tenancy of the defendant was properly terminated by the suit notice. As the Appellate Court found that the permission of the Rent Controller under the Rent Control Order was required, the suit of the plaintiff was dismissed.

10. Mr. Bhandarkar, learned Counsel appearing for the appellant submitted that the Appellate Court erred in holding that for determining the tenancy of the tenant the permission of the Rent Controller is required as per Clause 13 of the Rent Control Order. The Appellate Court observed that the defendant was in fact the tenant of the plaintiff but he has renounced his character as tenant. If that was so, then the Appellate Court was in error in holding that the defendant is entitled for protection of the Rent Control Order. Appellate Court committed an error of law in holding that the suit notice was invalid in the eyes of law. The Appellate Court also erred in holding that the defendant is entitled for restoration of possession of the suit flat under Section 144 of the C.P.C. It is submitted that the provisions of Section 144 of the C.P.C. are not at all applicable in the case before hand and as such defendant is not entitled to restoration of possession, when possession of the suit flat was obtained by the appellant in execution of the decree passed by the Trial Court.

11. Learned Counsel pointed out from the decision of this Court in Prabhakar Rokde v. State of Maharashtra, 1985 Mh. L.J. 548 that notification No. 659-66 II dated 6.2.1952 issued by State Government under Clause 13 of the C.P. & Berar Letting of Houses and Rent Control Order, 1949 exempting from operation of the provisions of the said order any house used for residential purpose if the house is constructed on the site lying vacant on 1.1.1951, or on site made vacant on or after that date by demolition of any structure standing on such site is null and void being unconstitutional violative of Article 14 of the Constitution. The declaration of the notification dated 6.2.1952 is null and void, will not however, affect the validity of any proceedings in which the decree for eviction has become final and the landlord had already taken possession of the suit building in question pursuant thereto. It is true that the notification dated 6.2.1952 granting exemption is struck down and is declared as null and void. But the declaration that the notification dated 6.2.1952 granting exemption is null and void was made by this Court on 19.6.1985 when the judgment in the case of Prabhakar Rokde, 1985 Mh. L.J. 548 (supra) was pronounced. Learned Counsel in this context pointed out that the Trial Court passed the judgment in the suit on 22.11.1984. Therefore, the Counsel submitted that the notification dated 6.2.1952 granting exemption was very much valid and the parties were governed by the legal position as then prevailing when the Trial Court pronounced the judgment. In other words the notification granting exemption from operation of the rent control order was in existence validly and therefore, the Trial Court was justified in holding that the provisions of the Rent Control Order are not applicable so far as the suit flat is concerned. The notification granting exemption from operation of the Rent Control Order, it held the field till the decision in 1985 Mh.L.J. 548 (supra) was given by this Court.

12. The Trial Court passed the decree for possession during the subsistence of the notification granting exemption from the operation of provisions of the Rent Control Order, Appellate Court has no jurisdiction to order restoration of the possession to the defendant when the plaintiff got the possession inexecution of the decree. Before the notification issued on 6.2.1952 was declared null and void by this Court. Learned Counsel further submitted that admittedly defendant has denied plaintiffs title and as such there was disclaimer on the part of the defendant. If that was so, then plaintiff was entitled to sue for eviction by giving a quit notice under Section 11(G)(ii) of the Transfer of Property Act. Learned Counsel placed reliance on the decision of this Court in Ashwinkumar Govardhandas Gandhi and Anr. v. Gangadhar Dattatraya Gadgil, 1990 Mh. L.J. 18 wherein it has been held that when the tenant renounces his character as such by setting up title in third person or by claiming up title in himself as claim under Section 111(G) of Transfer of Property Act, permission under Clause 13 of the Rent Control Order is not necessary for giving notice determining the lease as contemplated by Clause (G) as Section 11 of the Transfer of Property Act. The suit therefore for ejectment of such tenant without obtaining permission of the Rent Controller is maintainable. Learned Counsel submitted that this legal position still holds good and as such it is applicable to the case before hand wherein admittedly the defendant has renounced his character by setting up title in third person and therefore the plaintiff was perfectly right in instituting the suit for eviction without seeking prior permission of the Rent Controller under the provisions of the Rent Control Order. He therefore, urged that Appellate Court was wrong in holding that the suit filed by the plaintiff was incompetent. He therefore, urged that the appeal be allowed and the decision of the Trial Court be restored.

13. Mrs. Joshi, learned Counsel appearing for the respondent/defendant submitted that the appeal has become infructuous in as much as the appellant is not in possession of the suit premises, nor he is owner of the suit premises. She submitted that First Appellate Court has rightly held that the suit filed by the plaintiff was not suffering from legal disability in as much the permission of the Rent Controller was not sought by the plaintiff before issuing the notice terminating the tenancy. She submitted that the notice was given by plaintiff on 11.2.1979 determining the tenancy by 31.3.1979. Suit was decided on 22.11.1984, though the decision in 1985 Mh. L.J. 548 was given on 19.6.1985, when the notice was issued the notification dated 6.2.1952 granting exemption from the operation of the provisions of the Rent Control Order was in force and therefore subsequent declaration of the said notification as null and void, did not affect the right accrued to the plaintiff to bring action for eviction in the Court without seeking permission of the Rent Controller and as such the Appellate Court was justified in reversing the judgment of the Trial Court holding that the suit filed by the plaintiff was incompetent for want of prior permission from the Rent Controller under the Rent Control Order. The Appellate Court has committed no error in holding that the plaintiff was required to obtain prior permission of the Rent Controller before terminating the tenancy of the defendant and as permission was not obtained, the suit was rightly found to be incompetent. She therefore, urged that the appeal merits no consideration at all and as such the same should be dismissed.

14. The Trial Court has recorded a finding of fact that the suit flat was let out by the plaintiff to the defendant as a monthly tenant. This finding of fact has been confirmed by the Appellate Court observing that the conclusion arrived at by the Trial Court on the evidence on record was correct. Similarly, Appellate Court has confirmed the finding of Trial Court that the defendant was estopped from challenging the title of the plaintiff by virtue of Section 116 of the Indian Evidence Act. Though plaintiff in this second appeal has assailed the judgment of the Appellate Court, the concurrent findings of fact as stated above are not questioned. Therefore, it stands concluded that the suit flat was obtained by the defendant on lease as monthly tenant from plaintiff and that the defendant is estopped from challenging the title of plaintiff vis-a-vis suit flat. This has significance because admittedly the suit flat was allotted to one Mr. Dighe and after his demise said flat had gone to his wife Smt. Indirabai Dighe. The father of the plaintiff who was then President of the society cancelled the allotment of flat to Dighe and then it was allotted to the plaintiff. Thereafter, the suit flat was let out to the defendant by father of plaintiff on behalf of plaintiff and that is how the defendant came to be inducted as tenant.

14-A. But then Mrs. Indirabai Dighe challenged the action of cancellation of the flat allotted to her husband before the Assistant Registrar, Cooperative Societies who referred the same to the Officer on Special Duty (O.S.D.) for decision under Section 91 of the Maharashtra Co-operative Societies Act. It is admitted that the learned Office on Special Duty passed the award on 29.4.1974 directing the society and the present plaintiff to restore possession of the suit flat to Smt. Indirabai Dighe after holding that she was entitled to its possession, since determination of higher purchase agreement entered into by her husband was illegal. Feeling aggrieved by the said order, the society filed Appeal No. 324/1974 and the present plaintiff filed Appeal No. 342/1974 before the Maharashtra State Co-operative Appellate Court and admittedly both the appeals were dismissed by the judgment and order dated 25.10.1978. Thereafter, the society as well as plaintiffs filed revision petitions but the same were dismissed by the judgment and order dated 13.8.1979. The final word on the point is of the judgment of this High Court in Writ Petition No. 2606/1986 in which it was held that the allotment in favour of Shri Dighe was illegally cancelled on 15.7.1973 and Smt. lndirabai Dighe as alleged by her was entitled to possession of the flat. Consequently, the allotment made in favour of the present plaintiff was also set aside. It is in this background that the defendant had challenged the title of the plaintiff vis-avis the suit flat. Therefore, defendant contended in his written statement that plaintiff was not the owner of the flat and Mrs. Dighe was the owner of the flat.

15. It is significant to note that the Appellate Court while confirming the finding of the Trial Court that the defendant was estopped from denying the title of plaintiff, took into consideration the factual position and also the final decision of this Court confirming the decisions of the Co-operative Court holding that the suit flat was rightly allotted to Mr. Dighe and that the cancellation of that allotment was illegal, so also subsequent allotment of the suit flat to the plaintiff. The finding recorded by the Appellate Court in that regard, which has virtually confirmed the finding of the Trial Court that defendant was estopped from denying the title of the plaintiff, appears to be right. That is why I have said earlier that in the second appeal plaintiff rightly did not question that finding. The Appellate Court has virtually reproduced the observations of the Apex Court in the case of Shri Ram Kasricha v. Jagannath and Ors., . The Apex Court observed -"Relations between the parties being that of landlord and tenant only the landlord could terminate the tenancy and institute the suit for eviction. The tenant in such a suit is estopped from questioning the title of the landlord under Section 116 of the Evidence Act. The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law in a suit between the landlord and tenant the question of title to the leased property is irrelevant." Therefore, it is obvious that, how so ever defective the title of such person or even the landlord may be at the time of the creation of the tenancy, the person inducted under the terms of contract cannot be permitted to rely on that defect to his advantage or to perpetuate his possession or to act in detriment to the landlord's right. In law even assuming that a third party has title to any extent in the suit property where the contract is one entered into between the plaintiff and the defendant and actual possession was given by the plaintiff and not the third party, must be regarded as the landlord of the defendant. Therefore, it is in this sense that denial of title of the landlord by the tenant, is of no consequence so far as the right of the landlord in bringing action against tenant for eviction. In other words even if title of the landlord is defective, the defendant-tenant cannot take advantage of that to raise a contention to non suit the plaintiff, so long as the defendant has been inducted as tenant by the plaintiff.

16. But then the subsequent event that after the decree was passed by the Trial Court and while the appeal was pending, the plaintiff got the possession of the suit flat in pursuance of the execution of the decree has certainly bearing on the claim of plaintiff for possession of the suit flat. It is no doubt true that the Appellate Court was well conscious of the fact that during the pendency of the appeal the defendant was dispossessed as the plaintiff had taken possession of the flat in execution proceedings. That is how the Appellate Court observed in the judgment that if the plaintiff has taken possession in execution proceedings, then remedy lies in restitution under Section 144 of the Civil Procedure Code. Therefore, the Appellate Court has thereby impliedly indicated that the defendant is entitled to the recourse for restoration of possession. Therefore, though defendant has lost possession, that by itself does not make the appeal preferred by the plaintiff infructuous. However, in this context another subsequent event has to be taken into consideration and it is the statement of fact made by the Counsel for the defendant that the suit flat is not in possession of the plaintiff. It appears that as the consequences of final decisions of this Court in writ petition, plaintiff has lost the possession. It is also clear between the parties to the suit that the suit flat is not presently in possession either of plaintiff or the defendant.

17. Appellate Court while recording finding that the plaintiff was required to obtain permission of the Rent Controller as per the Clause 13 of the Rent Control Order also found that the suit notice issued by the plaintiff without obtaining the permission of the Rent Controller was invalid and the suit based on such notice suffered from legal disability. In fact the defendant had challenged the validity of the suit notice on the ground of disparity as to the date of commencement of lease. The Trial Court considered that disparity and found that the suit notice was valid and legal as (i) the notice was issued on 11.2.1.979, terminating the defendant's tenancy by 31st March, 1979 and (ii) defendant received that notice on 20.2.1979. That apart, the Trial Court found that defendant failed to prove that the tenancy month commences from 15th day of each month. Therefore, a finding of the Trial Court as to the validity and legality of the notice terminating the tenancy is virtually confirmed in this context by the Appellate Court. The Appellate Court has observed that the suit notice was invalid because the action by plaintiff against defendant was initiated by filing suit without obtaining permission of the Rent Controller as mandatorily required under Clause 13(i) of the Rent Control Order.

18. The real controversy has arisen due to conflicting finding on the issue of requirement of seeking permission of the Rent Controller before instituting the suit as contemplated under Clause 13(i) of the Rent Control Order. The factual possession undisputed is that plaintiff did not seek permission of the Rent Controller under Clause 13(i) of the Rent Control Order when the suit was filed against the defendant. It is basically the contention of the plaintiff that no such permission of the Rent Controller was required as the suit is not governed by the provisions of the Rent Control Order. In that also, what was contended by the plaintiff was that Rent Control Order has no application so far as the suit premises are concerned, because admittedly the suit building was constructed in the year 1963. It is not disputed that as per notification dated 6.2.1952 issued by the State Government Bearing No. 659-66-11, under Clause 13 of the Rent Control Order, 1949 exemption from the operation of all the provisions of the said order has been granted to the house used for residential purpose, if the house is constructed on the site lying vacant on 1.1.1951. Plaintiff claimed that permission of the Rent Controller was not required as the case is covered by the exemption granted under the notification in question. The Trial Court decided the suit on 22.1.1984 and decree plaintiffs suit placing reliance on the exemption granted from the operation of the provisions under the Rent Control Order holding that no permission was required.

19. The Appellate Court while deciding the appeal on 19.9.1989 found that this Court in 1985 Mh. L.J. 548 (supra) held that the notification granting exemption dated 6.2.1952 was declared null and void being unconstitutional, violative of Article 14 of the Constitution and therefore plaintiffs suit was dismissed as plaintiff did not seek permission from the Rent Controller.

20. Learned Counsel for the plaintiff submitted that the suit notice was issued on 11.2.1952. That time the notification dated 6.2.1952 granting exemption was valid and the parties were governed by legal position as then prevailing and as the judgment in 1985 Mh.L.J. 548 was delivered on 19.6.1985 declaring the notification null and void and therefore, the Appellate Court was not justified in holding that the plaintiff was required to obtain the permission of the Rent Controller. This submission is on the footing that when the Trial Court decided the matter the notification granting exemption from the operation of the provisions of all Rent Control Order was very much in force and the declaration that the notification was null and void by this Court was subsequent to the decision by the Trial Court. It is very difficult to accept this submission of the learned Counsel for the plaintiff/appellant.

20-A. In fact the Appellate Court has rightly answered in his judgment as to the effect of the decision of this Court in 1985 Mh.L.J. 548 by referring to the decision of this Court in Namdeorao Natthuji Borkar v. Prakash Vithalrao, 1987 Mh.L.J. 1085. In that case the landlord instituted the suit for eviction against the tenant in respect of the premises let out for non-residential purposes constructed after 1.1.1969 which premises, were exempted from the provisions of the Rent Control Order by virtue of the notification issued in exercise of the powers under Clause 30 of the Order. The Trial Court passed a decree for possession in terms of compromise on 2.10.1985 and the tenant undertook to vacate the tenement by 31st March, 1986. In the meantime the exemption granted under Clause 13 of the Rent Control Order was declared to be ultra vires in the judgment delivered by the High Court on 29.8.1986 since reported in 1986 Mh.L.J. 882. Therefore, the decree passed in terms of compromise came to be challenged before the High Court in revision. In that case while setting aside the compromise decree this Court held. "In as much, the exemption available under Clause 30 was declared ultra vires, in the eye of law, there was no exemption at all at any stage. All the premises were equally governed by the provisions of the Rent Control Order. As a consequence the landlord was barred from instituting a suit for eviction without obtaining the permission of the Rent Controller. This permission was sine qua non for initiating the proceedings for eviction against a tenant. The Court could not proceed with the matter when there was a statutory bar against the plaintiff in initiating the eviction proceedings against a tenant. When the parties entertained with full knowledge and effect of compromise, the defendant tenant was not conscious of the fact that the landlord was suffering from a legal disability. He was not conscious of the fact that the landlord could not even approach the Court. It was in this frame of mind that the contract was entered into. This was a contract between the defendant on the one hand and the plaintiff who was not competent to come to the Court to claim relief of eviction on the other. It could not, therefore, be said that this contract would bind the defendant particularly when this contract could not be effected because the proceeding which gave rise to this contract were incompetent. Though there may be consent decree, the background on which the consent decree came to be passed by the Court cannot be ignored. Legal consequences had to follow and irrespective of the fact that the decree was based upon the contract entered into by the parties, it remained a contract with the party who was barred from coming to the Court. The Court was incompetent to grant claim for possession as there was clear contravention of law prevailing. The contention that the validity of the act depends on the facts existing at the time when the act was done and would not be affected by subsequent judicial determination, could not be accepted in as much as the alleged right had no basis in law as it was unconstitutional. The decree passed, therefore, was liable to be set aside.

21. The above pronouncement of this judgment by our Court makes position crystal clear that when a particular Notification granting exemption from the operation of the provisions of the Rent Control Order is declared ultra vires, unconstitutional in the eye of law, there was no exemption at all at any stage. Therefore, submission of learned Counsel for the plaintiff that declaration of the notification is null and void by this Court in the decision of Prabhakar Rokde v. State of Maharashtra, 1985 Mh.L.J. 548 was of no consequence, as the Trial Court has pronounced the judgment much prior to the decision of this Court and that when the suit was filed, the Notification granting exemption from the operation of provisions in the Rent Control Order was in force. In other words, in view of the decision of this Court in 1985 Mh.L.J. 548 holding that the Notification granting exemption dated 6.2.1952 as null and void, it has to be held in the eye of law that there was no exemption at all at any stage. Therefore, it is meaningless to say that when the Trial Court passed the decree, the Notification granting exemption from operation of the provisions under the Rent Control Order was in force. Therefore, Appellate Court committed no error in holding that the plaintiffs suit suffered from legal disability as the suit was filed by plaintiff without seeking the permission of the Rent Controller.

22. The learned Counsel for the appellant has also urged that the Appellate Court was in error in interpreting the decision of this Court in 1985 Mh.L.J. 548 (supra). It was pointed out that this Court has specifically observed that the declaration of the Notification dated 6.2.1952 as null and void will not however, affect the validity of any proceeding in which the decree for eviction has become final and the landlord has already taken possession of building in question pursuant thereto. Learned Counsel submitted that admittedly in execution of the decree passed by the Trial Court, plaintiff has already taken possession of the suit flat from the defendant and as such there being finality to the judgment and decree, Appellate Court was not justified in reversing the judgment of the Trial Court.

23. It is significant to note that the Appellate Court has also considered this submission in its judgment. The Appellate Court while referring to the observations of this Court in 1985 Mh. L.J. 548 (supra) observed in paragraph 35 :

It is said that an appeal is a continuation of suit. The appeal is a part of the cause and does not create the cause. Appeal is a substantive right and the right of appeal accrues to the litigant and exists as on and from the date the lease commences. It should be noted that the Appellate Court is duty-bound to take the note of the change in law and give effect to the same even after judgment of Court of first instance. As decree of the Lower Court for eviction has not become final and it is under challenge in the present appeal. Mere fact that the plaintiff obtained the possession of the suit flat in the execution proceeding would not affect the legal right and the remedies under Section 144 of the Code of Civil Procedure.

We have no hesitation in saying that the Appellate Court was right in holding that the suit filed by the plaintiff was having inherent defect and legal disability as no permission from the Rent Controller was sought. The fact that the plaintiff obtained possession in execution proceeding during the pendency of the appeal is of no consequence in as much the pendency of the appeal by itself being continuation of the suit for all purposes and thereby there was no finality to the decree passed by the Trial Court. The position would have been different, had the plaintiff taken possession in execution of the decree before the defendant filed the appeal in the first Appellate Court or defendant would have filed appeal.

24. I shall now deal with the last submission of Counsel for the plaintiff. He placed reliance on a decision of this Court reported in 1990 Mh.L.J. 18 (supra). In that case the tenant renounced his character as such by setting title in third person by claiming title in himself and as mentioned in Section 111(g) of the Transfer of Property Act. The landlord had applied to the Rent Controller for permission to give notice determining the lease. The tenant therein renounced his character as a tenant and therefore, the landlord filed a pursis praying that the proceeding before the Rent Controller be filed as the tenant has renounced the tenancy and the Court, therefore, would have no jurisdiction to adjudicate on the matter. Rent Controller thereupon passed an order filing the proceedings. The landlord then served notice to the tenant and asked him to vacate the premises. As the tenant did not comply, he brought the suit for possession. One of the contentions raised by the tenant in the suit was that the suit was not maintainable as no permission from the Rent Controller was obtained as required under Clause 13 of the Rent Control Order. The Trial Court on the main issue held that it was necessary for landlord to obtain permission of the Rent Controller before instituting a suit and as such the suit was dismissed.

25. Aggrieved by the dismissal of the suit landlord appealed to the District Court. District Court allowed the appeal and decreed landlord's claim holding that the notice terminating tenancy, in consequence of forfeiture was valid in view of Section 111(g) of the Transfer of Property Act.

26. In the second appeal before this Court learned Single Judge was of the view that Clause 13(1)(a) of the Rent Control Order would not operate upon the statutory option to the landlord to bring about the determination of lease, which has been incurred by forfeiture by issuing a notice as required under the clause and for application of item (a) of Sub-clause (1) of the Clause 13, the option must flow from contract and not from the statute. The learned Single Judge, however, felt that since a different view has taken by another learned Single Judge of this Court in Vishwanath v. P. Madhusudan, 1986 Mh.L.J. 699 the question should be referred for decision to a Larger Bench, and that is how the reference was before the Division Bench of this Court. The point that was referred was "Whether the provisions of Clause 13(1)(a) of the C.P. & Berar Letting of Houses and Rent Control Order, 1949 are applicable to the present case?

27. This Court while answering reference observed "permission under Rent Control Order is not necessary before terminating the tenancy in a case where the lessee renounces his character as such by setting up title in the third person or in himself. The suit for ejectment after giving the notice of forfeiture of tenancy is maintainable in such a case without permission under Rent Control Order." This Court found that the provisions of Clause 13(1)(a) of the Rent Control Order would come in the way of giving notice without obtaining the permission of the Controller only in respect of classes covered by conditions (1) and (3) of Clause (g) of Section 111 of the Transfer of Property Act and since the present case falls in the later category, permission of the Rent Controller would not be necessary for giving notice determining the lease as contemplated by Clause (g) of Section 111 of the Transfer of Property Act. The suit was therefore, maintainable even without obtaining permission of the Controller.

28. The Counsel for the appellant/plaintiff vehemently submitted that this decision still holds the field. Then coming to the facts of the case before hand the learned Counsel pointed out that admittedly the defendant has renounced his character as tenant by setting up title in third person and by denying plaintiffs title as owner and thereby the clause as to forfeiture as per condition No. (2) of Clause (g) of Section 111 of the Transfer of Property Act comes into play, the plaintiff landlord was not required to seek permission bf the Rent Controller and therefore, the Trial Court was right in decreeing plaintiffs suit.

29. Submission of the learned Counsel is very much attractive at the first blush as apparently the stance of the defendant right from the inception is to deny the title of plaintiff landlord. But after close scrutiny of the contention of the defendant in this regard, it is found that the submission of the learned Counsel has to be rejected. In the first place, it is the plaintiffs case that disclaimer on the part of the defendant has resulted into forfeiture of the tenancy. That apart, viewed strictly the pleadings of the plaintiff, it is clear that the plaintiff has come up with the case that the provisions under the Rent Control Order are not applicable to the premises because the building was constructed in the year 1963 and there was exemption from operation of the provisions of the Rent Controller Order due to which plaintiff filed the suit without seeking permission of the Rent Controller. It is not that the plaintiff averred that because defendant denied plaintiffs title, he has incurred forfeiture of the tenancy and on that count the plaintiff was not required to obtain permission of the Rent Controller. If that is so, then now plaintiff cannot take recourse to the decision of this Court in 1990 Mh.L.J. 18 (supra) and claim that his suit for ejectment after giving notice of termination of tenancy is maintainable without seeking permission under the Rent Control Order.

30. In my opinion even on facts there is sharp distinction having regard to specific contentions of the defendants. I have elaborately considered the contention of the defendant while dealing with the issue as to whether the defendant is estopped from denying the title of plaintiff. As stated earlier, the concurrent finding recorded by the Court below has been accepted that the defendant is estopped from denying the title of the plaintiff vis-a-vis suit flat. It has been made clear that defendant is estopped from denying the title of plaintiff in the background that defendant has accepted contract of tenancy in respect of the suit flat and his entry in the suit flat as a tenant on the basis of that contract. It stood concluded that defendant accepted plaintiff as the landlord of the suit flat. It is only in the background of this fact of acceptance of tenancy by defendant, denial on the part of the defendant of plaintiffs title has to suit flat was found to be of no consequence. Therefore, according to me mere denial on the part of the defendant of plaintiffs title and ownership vis-a-vis suit flat, will not amount to disclaimer incurring forfeiture of tenancy. In addition to this in a strict sense defendant has not renounced his claim as a tenant vis-a-vis suit flat. As we know from the provisions under Section 111(g) of the Transfer of Property Act and more so in condition (2), it is only denial of factum of lease and consequent renouncement of title as a tenant of lease - demised premises and claiming title with himself by adverse possession, the forfeiture to tenancy is incurred. Therefore, viewed from this angle, I do not think that there is any forfeiture of tenancy in case of defendant. As such the decision on which reliance has been placed by learned Counsel for the plaintiff, is of no assistance for reversing the decision of the Appellate Court.

31. In this context now I shall consider the event that the plaintiff himself is not in possession of the suit flat. This has significance in the background of the fact that during the pendency of the appeal, defendant was dispossessed. Though the plaintiff got the possession of the suit flat, it is now stated at the bar that plaintiff has also lost the possession. I have referred in earlier part of the judgment that in pursuance of the final judgment of this Court confirming the decision of the Co-operative Court, holding that cancellation of allotment of the flat to Mr. Dighe was illegal and also allotment of the suit flat to plaintiff, was illegal and that Mrs. Dighe was entitled to get possession of the flat; plaintiffs claim for possession even on the basis of the decree passed by the Trial Court does stand to the reasons.

32. In the result, for the reasons stated above, I do not find that there is any merit and substance in the appeal. There is absolutely no reason to interfere with the decision of the Appellate Court. The appeal has to be dismissed and as such same is hereby dismissed. In the circumstances, no orders as to costs.