Vasant Raghu Bhingardive And Ors. vs Nagori Muslim Misgar Jamat Trust ...
2007 Latest Caselaw 92 Bom

JUDGMENT

V.R. Kingaonkar, J.

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1. This is defendants appeal against eviction decree rendered by first appellate Court.

2. Subject matter of the suit is an agricultural land bearing S.No.127 situated at village Kedgaon, which is in the outskirts of Ahmednagar town, comprising two (2) acres area as indicated in plaint map.

3. Nagori Muslim Misgar Jamat Trust, is a religious trust and owns the suit land. The Trust is duly registered under provisions of the Bombay Public Trust Act. The competent authority has granted exemption certificate on 21.12.1968 under provisions of Section 88 of the Bombay Tenancy and Agricultural Lands Act, 1954 (for short B.T. and A.L. Act) to the Trust. S.No.127 was leased out by the plaintiff Trust to Raghu Shankar Bhingardive, on annual rental basis. The agreed rent was of Rs.25/-per year. The lease transaction took place way back before commencement of the B.T. and A.L. Act, as well the Bombay Public Trust Act. Original tenant Raghu Bhingardive died, leaving behind him his sons and mother as legal representatives. They committed willful defaults in payment of the annual rent. The plaintiff Trust desires to convert the suit land for non-agricultural use. The Trust wants to develop a garden and construct building of a school in the suit land. Consequently, tenancy of the defendants was determined by virtue of a notice dated 16.8.1973 and they were called upon to deliver possession of the suit land alongwith arrears of rent amount. They did not comply with the notice. Hence, the Trust filed suit for their eviction from the suit land.

4. By filing written statement (Exh.72), the defendants resisted the suit. They denied all the material averments made by the plaintiff Trust. They disputed correctness of the description of the suit land. They contended that the suit is untenable for want of correct and proper description of the suit land. They pleaded that exemption certificate obtained by the plaintiff Trust is not binding on them inasmuch as they were not made parties to the concerned proceedings. They further alleged that the tenancy rights are not legally terminated because the defendant Nos.2 and 3 had not received any notice of termination. They submitted that they are tenants of the agricultural lands in question and hence, the Civil Court has no jurisdiction to try the suit for eviction. They also denied that the suit land was required by the plaintiff Trust for bonafide purpose of development of a garden and construction of a school. They averred that the suit is bad for want of sanction required Under Section 50 of the Bombay Public Trust Act. They sought dismissal of the suit on the strength of the above mentioned pleadings.

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5. The parties went to trial over certain issues framed by the trial Court. The trial Court held that the plaintiff - Trust could not prove service of legal notice on the defendants for termination of the tenancy. The trial Court further held that the suit land was not properly described and, hence, decree for possession cannot be granted. The trial Court held that the suit was improper in its form and the plaintiff - Trust was not entitled to recover possession of the suit land. The suit therefore, was dismissed. The first appellate Court reversed the findings of the trial Court. There is sufficient identity of the suit land. The first appellate Court came to the conclusion that the suit land is required by the plaintiff -Trust for bonafide purpose. The first appellate Court also held that the tenancy was duly terminated under quit notice served on the defendants. The first appellate Court repelled all objections of the defendants. In keeping with its findings on material issues, the first appellate Court granted eviction decree in favour of the plaintiff - Trust.

6. Mr. Kasliwal, learned advocate for the defendants strenuously argued that findings of the first appellate Court are improper and incorrect. He would submit that service of the notice Under Section 106 of the Transfer of Property Act is not duly proved. He would submit that after demise of the original tenant, namely, Raghu Bhingardive, the tenancy rights devolved on all the legal representatives and hence, it was incumbent for the plaintiff - Trust to serve termination notice on all of them. He argued that the legal representatives of deceased tenant - Raghu Bhingardive -would inherit the tenancy rights as tenants in common and their shares are separate. He argued further that the suit land is not appropriately described as required Under Order VII Rule 3 of the C.P.C. which has rendered the plaint defective. He supported findings of the trial Court. He would submit that the first appellate Court committed error in law and facts while reversing the findings of the trial court and decreeing the suit. On the other hand, learned advocate Mr.Gatne, for the Respondents supported the findings of the first appellate Court. He urged to dismiss the appeal.

7. There are three material points involved in this Second Appeal. They are :

(a) Whether description of the suit land is adequately and properly given in the plaint.?

(b) Whether the plaintiff Trust has proved that the defendants committed willful defaults and further that the suit land is bonafidely required for the development purpose as alleged.?

(c) Whether due service of the notice of termination Under Section 106 of the T.P. Act is proved and such notice is legal and valid.?

My findings on these points are in the affirmative. The reasons are discussed hereinafter.

8. As regards description of the suit land, it is pertinent to note that the objection of the defendants was that the plaintiff Trust failed to mention boundaries thereof in the plaint. The plaintiff -Trust, however, filed certified copy of the map drawn by the District Inspector of Land Records (D.I.L.R.). The plaintiff - Trust made it clear that the land demarcated in the said map is the suit land. The plaintiff - Trust urged in the plaint itself that the said map may be treated as part and parcel of the plaint. It appears that there are some huts and there is portion covered by uncultivable land in rest of the Page 0303 land. The plaintiff described 2 acres area, excluding the area under the hutment and the area of the fallow land, shown in the map drawn by the D.I.L.R. The measurement map was prepared by the Public Officer in due course of the official business. The first appellate Court was right in relying upon the said plaint map. The description of the suit land is adequate and proper in view of demarcation shown in the plaint map. There is due compliance of Order VII Rule 3 of the C.P. Code. The suit cannot be dismissed on the technical ground that boundaries of the suit land are not shown in the plaint. There is no substance in the objections raised in this behalf.

9. The plaintiff - Trust adduced evidence of P.W. 1 Munirkhan in support of its case. His version reveals that he is a Trustee of the plaintiff Trust. By resolution dated 30.6.1972, the trustees have authorised him to file the suit. His version purports to show that the suit land was given to deceased Raghu Bhingardive in 1952. His version further reveals that deceased Raghu failed to pay the rent arrears to the plaintiff -Trust. The notice of termination was tried to be served on him in 1964. The postal envelope, containing quit notice, was returned with an endorsement that the addressee (Raghu) was dead. The version of P.W. Munirkhan reveals that on 16.8.1973, termination notice was issued to the three defendants. He corroborated the recitals of the termination notice. His version purports to show that the notice was sent by Registered Post and acknowledgment receipt was received from the defendant No.l. The registered postal envelopes of notices sent to the defendant Nos.2 and 3 was returned with endorsement that they had gone out of Station. He, thereafter, sent the notices to them under certificate of posting. The postal acknowledgment (Exh.26) reveals that the original defendant No.l was duly served with the quit notice (Exh.19). The envelopes Exh.27 and 28 were returned to the plaintiff - Trust with an endorsement that the defendant Nos.2 and 3 were not at home or were avoiding to meet the postman. It appears that again the notice was sent by the plaintiff - Trust to them under certificate of posting.

10. Mr.Kasliwal, learned advocate for the appellants/defendants, would submit that service of the notice on the original defendant Nos. and 3 is necessary and the same is not proved. He would further submit that there are sisters of the defendant Nos.1 and 2, who were necessary parties and the service of notice on them was also necessary. It appears that the appellants challenged legality and validity of the notice on the ground that service thereof is defective. At this juncture, it is worthwhile to note that D.W.1 Vasant admitted, unequivocally, that he received the notice. He admitted that the acknowledgment (Exh.32) bears his signature. He further admitted that he did not reply the notice. He received another notice from the plaintiff - Trust but did not give any reply. He also admitted, that there was no partition between the legal heirs left by deceased Raghu Shankar. He is the eldest member of the joint Hindu family. He further admitted that there is no internal dispute between himself and his brothers, mother and grand mother. His version is that deceased Raghu died in 1959, leaving behind three sons, 7 daughters, wife and mother. His version reveals that he has no personal knowledge as regards payment of rent by the deceased tenant - Raghu. He stated that an application filed by the plaintiff Trust in Tenancy Court was rejected. He relied upon copy of the tenancy Courts order (Exh.82).

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11. The clinching question is as to whether service of the quit notice Under Section 106 of the T.P.Act on eldest male member of the joint Hindu family would suffice the purpose. Mr.Kasliwal, learned advocate appearing for the defendants/appellants seeks to rely on Oza Kumbhar Naran Ala v. Meta Nanalal Jethabhai and Ors. . A Single Bench of Gujarat High Court has held that notice sent under certificate of posting cannot be deemed to have been served. There is no presumption of due service when notice is sent under certificate of posting. Similarly, he seeks to rely on State of Maharashtra v. Rashid B. Mulani . The Apex Court held that a certificate of posting obtained by sender is not comparable to a receipt for sending a communication by Registered Post. In absence of adequate evidence, a certificate of posting may be of very little assistance to draw an inference regarding due service of notice. There is no dispute about the fact that service of notice by Registered Post on original defendant Nos.2 and 3 is not proved.

12. The first appellate Court did not rely upon service of notice under certificate of posting. The first appellate Court held that the notices were sent lateron under certificate of posting by way of further caution. The evidence on record unmistakably shows that the notice of termination was duly served on the defendant No.1 and although, the envelopes sent by Registered Post were returned by the defendant Nos.2 and 3 yet, they did so because they were having knowledge about the contents of the said envelopes. This can be gathered in view of the fact that all the defendants were members of the joint family at the relevant time. The defendant Nos.2 and 3 did not enter the witness box in order to prove their ignorance regarding notice of termination. They did not make any complaint regarding non-service of the termination notice. It is difficult to say that the defendant No.l - D.W. Vasant might not have shared his knowledge regarding termination of the tenancy rights with the defendant Nos.2 and 3.

13. In Kanji Manji v. The Trustees of the Port of Bombay , the Apex Court held that service of notice to determine lease on one of the joint tenants is sufficient. It is observed :

nce it is held that the tenancy was joint, a notice to one of the joint tenants was sufficient, and the suit for the same reason was also good. Mr.B. Sen, in arguing the case of the appellant, did not seek to urge the opposite. In our opinion, the notice and the frame of the suit were, therefore, proper, and this argument has no merit.

In Mst. Ramubai v. Jiyaram Sharma , this Court held that heirs of deceased tenant cannot be regarded as tenants in common vis a vis landlord. This Court held that the heirs of the tenant are joint tenants and notice terminating tenancy served on some of them is valid. It is held that such notice Under Section 106 of the T.P. Act would be binding on all heirs of the deceased tenant.

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14. One cannot be oblivious of the fact that D.W. Vasant was then karta of the joint family. He represented the family. The service of notice Under Section 106 of the T.P. Act on him must be regarded as legal and proper. He being representative of the entire joint Hindu family, inclusion of other heirs of the deceased tenant was not necessary. For, the decree would be binding on all the joint tenants. The service of notice Under Section 106 of the T.P.Act is not the strict requirement of the law in regard to the agricultural tenancies, unless there is a special notification issued by the Government in this behalf. The provisions of Sections 105 to 116 of the T.P.Act contained in Chapter V are required to be harmoniously construed. The provisions of Section 117 of the T.P. Act would make it clear that Section 106 of the T.P. Act does not apply to leases for agricultural purpose. Still, however, the provisions of Section 106 would be applicable to the reasonable extent. It is well settled that the provisions contained in Chapter V of the T.P. Act are founded upon reason and equity and hence, are applicable to agricultural leases though not in strictosensu. Considering the letters and spirit of all these provisions, I have no hesitation in holding that service of the notice of termination on the defendant No.l is valid service for the purpose of determining the tenancy rights of not only himself but of all the other legal heirs left by the deceased tenant Raghu Shankar. Needless to say that the argument advanced on behalf of the appellants in this behalf is unacceptable. It follows that by virtue of the notice dated 16.8.1973 (Exh.19) the tenancy was duly terminated. The defendants were called upon to deliver possession of the suit land after six months from the date of service of the notice or as on the day when the tenancy year would expire after six months. There is no substantial error committed by the first appellate Court in holding that the quit notice is legal and proper.

15. The evidence of the plaintiff -Trust would show that the suit land is required for construction of a school and development of a garden. There is no denial to the fact that the plaintiff Trust is a public trust. Admittedly, from 1926 onwards the suit land is included in the limits of Ahmednagar town. The plaintiff - Trust is granted certificate Under Section 88(b) of the B.T. and A.L. Act. The plaintiff - Trust is exempted from operation of the B.T. and A.L. Act. The lease transaction is, therefore, governed by the provisions of the Transfer of Property Act. The plaintiff - Trust has adduced necessary evidence to show that the suit land is bonafidely required for non-agricultural use thereof. The version of D.W. Vasant would make it amply clear that the surrounding area is developed for residential purpose. The defendants did not reply the notice, wherein the requirement of land for non-agricultural use was stated by the plaintiff - Trust. Their mere denial about such requirement is of no avail. The plaintiff - Trust appears to have duly established its case regarding willful defaults committed by the defendants in payment of the rent arrears. The defendants have not produced any documentary evidence regarding payment of the agreed rent for each year. Considering the relevant aspects of the matter, I do not find any material irregularity or illegality committed by the first appellate Court while granting the eviction decree. The appeal is destitute of

16. In the result, the appeal fails and is accordingly dismissed. No costs.