Jawed Beg Walibeg Mirza vs Hamayu Hussain Ahmed Hussain & ...
2016 Latest Caselaw 4776 Bom

                                         1
                                                                          sa401.03.odt

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                   
                    NAGPUR BENCH, NAGPUR




                                                           
                        Second Appeal No.401 of 2003


      Jawed beg s/o Walibeg Mirza,




                                                          
      Aged 33 years,
      Occupation - Business,
      R/o Near Haji Salam Garage,
      Bhandara,
      Tahsil and Distt. Bhandara.                            ... Appellants/




                                             
                                                             Ori. Defendant

           Versus
                             
      1. Humayu Hussain s/o Ahmed
                            
         Hussain Siddique,
         Aged 57 years.

      2. Anwar Hussain s/o Ahmed Hussain
         Siddiqui,
      


         Aged 40 years.
   



           Both resident of Jamnalal Bajaj Ward,
           Bhandara, Tahsil and District Nagpur.             ... Respondents/
                                                             Ori. Plaintiffs





      Shri N.S. Talmale, Advocate for Appellant.
      Shri   Ved   R.   Deshpande,   Advocate,   holding   for   Shri   S.V.   Sirpurkar, 
      Advocate for Respondents.





                    Coram : R.K. Deshpande, J.

Dated : 22 nd August, 2016

sa401.03.odt

Oral Judgment :

1. The Trial Court dismissed Regular Civil Suit No.135 of 1998

filed by the respondent-plaintiffs for recovery of rent in respect of the

super-structure standing on the land Khasra No.230/2, situated at

Baba Mastansha Ward (Old Bairagi Bada), Bhandara. The lower

Appellate Court allowed Regular Civil Appeal No.139 of 2000

on 2-8-2003 and passed a decree for recovery of rent of Rs.14,400/-

for the period subsequent to 26-4-1995.

2. On 22-9-2003, this Court passed an order, admitting the

appeal and framing the substantial question of law as under :

"Whether tenancy between appellant and respondents is not still continuing since 6-4-1995, in view of admitted facts that appellant purchased land from lessor of respondents vide

Registered Sale-deed dated 6-4-1995 and consequently provisions of Section 116 of Evidence Act are not applicable?"

3. The undisputed factual position is that the original owner of

the land in question was one Dalal and the respondent-plaintiffs were

his tenants in respect of the said land. The respondent-plaintiffs

sa401.03.odt

constructed the super-structure on the said land and it was let out to

the appellant-defendant on the monthly rent of Rs.400/-, which was

being paid by the appellant-defendant to the respondent-plaintiffs till

6-4-1995. The appellant-defendant discontinued the payment of rent

on the ground that he had purchased open land from Dalal by the

registered sale-deed dated 6-4-1995. Hence, the suit was filed by the

respondent-plaintiffs for recovery of rent in respect of the

super-structure.

4. In view of the aforesaid undisputed factual position, it is

apparent that the respondent-plaintiffs are lessees in respect of the

open land of the original owner Dalal, and they are also the owners of

the super-structure, which they had constructed after obtaining a lease

of the open land. The appellant-defendant purchased the land in

question from the said Dalal on 6-4-1995 and thereby they became

the owners of it. The appellant-defendant has not determined the

tenancy of the respondent-plaintiffs in respect of the said land. The

respondent-plaintiffs have also not determined the tenancy of the

appellant-defendant in respect of super-structure. In the absence of

such determination, the appellant-defendant was bound to pay the

monthly rent in respect of the super-structure leased out by the

sa401.03.odt

respondent-plaintiffs. The ownership conferred upon

respondent-plaintiffs in respect of the said land cannot divest the right

of the respondent-plaintiffs to claim the rent in respect of the

super-structure from the appellant-defendant, until the lease in respect

of the land is determined. The substantial question of law is answered

accordingly.

5. In the result, the second appeal is dismissed.

JUDGE.

Lanjewar

sa401.03.odt

CERTIFICATE

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Uploaded on : 23-8-2016