Kumawat Cooperative Credit ... vs Sambhaji Gurappa Kapashe
2004 Latest Caselaw 605 Bom

JUDGMENT

D.G. Karnik, J.

1. By this petition, the petitioner challenges the judgment and order passed by the learned Vth Additional District Judge, Kolhapur dismissing the petitioners Civil Appeal No. 56 of 1986.

2. The respondent is a tenant in respect of a property bearing CTS No. 320 'C' Ward, Kolhapur more particularly described in paragraph No. 1 of the plaint. By an indenture of a sale dated 1th June 1978, the petitioner purchased the suit property and became the landlord of the respondent. According to the petitioner at the time of the purchase, the respondent was in arrears of rent for several years. While according to the respondent, he had paid rent upto end of November 1977. after the purchase, the petitioner issued a notice of demand demanding arrears of rent from 1.1.1969 at the agreed rate of Rs. 10/- p.m. Within one month of the receipt of the notice of demand, the respondent sent to the petitioner the money order of Rs. 250/- which covered the rent from 1st December 1977 since when according to him he was in arrears till the date of the notice. The petitioner refused to accept the rent and filed the suit for possession on the ground of default as well as bonafide requirement.

3. As regards the ground of default, the trial court held that the petitioner was not entitled to recover the rent prior to the date of it's purchase i.e. 1st June 1978. The respondent produced the copy of the sale deed which disclosed that the sale deed did not confer right on the petitioner right to recover the past arrears. According to the respondent No. 1, he had paid the rent to the previous landlord upto the end of November 1977 and he tendered the rent from 1st of December 1977 within one month from the date of the receipt of the notice. The previous landlord was not examined to show that the respondent was in arrears of rent prior to 1st of December 1977. Furthermore, neither the sale deed nor any other document confer a right on the petitioner to recover any rent prior to his purchase. In the absence of a contract to the contrary, the purchaser is not entitled to recover the rent prior to the date of the purchase (see Section 55(6)(a) of the Transfer and Property Act) The trial court held that the respondent had tendered the arrears of rent from 1st December 1977 which according to him was due and which was more than the rent due calculated from the date of the petitioner's purchase. As the rent was tendered within one month of the notice of demand, the trial court rejected the contention that the petitioner was a defaulter in payment of rent. The first Appellate Court also noted that the petitioner had tendered the arrears of rent within one month of the notice of demand. The rent tendered was more than the rent due from the date of the purchase and hence, the respondent was not a defaulter. The conclusion of the Courts below in the absence of the contract to the contrary the purchaser i.e. the petitioner was not entitled to recover arrears of rent prior to the date of it's purchase of the suit property is proper and in consonance with the provisions of Section 55(4)(a) read with Section 55(6)(a) of the Transfer of Property Act, 1882. The further finding of the Courts below that the respondent had tendered the rent which was due within a month of one month from the date of the notice, is also a finding of fact well supported by the evidence on record. The petitioner had declined to accept the money order sent by the respondent within one month of the notice of demand and so, the respondent could not be termed as a defaulter. The Courts below also noted that during the pendency of the suit, the respondent had deposited the rent in the Court regularly. I see no reason to interfere in the concurrent finding of fact, that the respondent was not a defaulter.

4. As regards the claim of bonafide requirement, the trial Court held that the petitioner was in possession of an office premises though there is some controversy as to the area of the office premises. The trial court held it to be of 8' x 10' and the appellate Court held it to be 10' x 12'. The trial Court held that in addition to the said office room, the petitioner was in possession of the premises known as 'Kumbhar Mandap' which was a covered premises with a roof. The area of the Kumbhar Mandap as per the municipal records is 137.1 sq.m which is approximately 1500 sq.ft. The trial Court recorded a finding of act that the petitioner was in possession of Kumbhar Mandap. The appellate Court has also recorded a finding of fact that Kumbhar Mandap was in possession of the petitioner. It is undisputed that during the pendency of the appeal the petitioner obtained possession of three rooms totally admeasuring about 300 sq.ft. from Ms. Vaskar against whom the petitioner had filed a separate suit. No evidence was adduced before the trial court to show the exact requirement of the petitioner. Despite production of evidence of obtaining possession of three rooms of about 300 sq.ft. during the pendency of an appeal, no additional evidence was adduced as to how the petitioner additionally required suit premises and the justification for such claim.

4. No other point was urged.

5. There is no merit in the petition which is hereby dismissed.

Rule discharged with no order as to costs.