Vijaykumar Shivnarayan Saraiyya vs Arun Atmaramji Kalal (Ukey) And ...
2017 Latest Caselaw 129 Bom

                                 1
                                                               sa520.15.odt

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                NAGPUR BENCH, NAGPUR

                    Second Appeal No.520 of 2015


  Vijaykumar Shivnarayan Saraiyya,
  Aged about 55 years,
  Occupation - Landlord
  Agriculturist,
  R/o Lala's Chal, Near
  Railway Station, Amravati,
  Tq. & Dist. Amravati.                            ... Appellant/
                                                   Ori. Plaintiff


       Versus


   1. Smt. Anusayabai Atmaramji Kalal (Dead).

   2. Aun Atmaramji Kalal (Ukey),
      Aged about Adult, 
      Occupation - Business.

   3. Dilip Atmaramji Kalal (Ukey),
      Aged Adult,
      Occupation - Labour.

       Both R/o Lala's Chal, 
       Near Railway Station,
       Amravati.                                   ... Respondents/
                                                   Ori. Defendant


   Shri D.P. Jaiswal, Advocate for Appellant.
   Shri D.V. Mahajan, Advocate for Respondents.

               Coram : R.K. Deshpande, J.

Dated : 28th February, 2017

sa520.15.odt

Oral Judgment :

1. Heard the learned counsels appearing for the parties.

2. The Trial Court as well as the lower Appellate Court are

concurrent in rejecting the claim of the plaintiff-landlord for eviction

and possession of the defendant-tenants from the open land, although

it is held that the plaintiff has established that the defendant-tenants

are the defaulters in payment of rent.

3. Undisputedly, the lease was in respect of the open land, to

which the provisions of the Maharashtra Rent Control Act, 1999 are

not applicable. Therefore, the termination of tenancy has to be on the

basis of the notice issued under Section 106 of the Transfer of

Property Act, 1882. Two things are required to be established - the

first one is that there is a breach of condition, and the another is that

the notice issued under Section 106 of the Transfer of Property Act is

legal and valid.

4. In the present case, the Trial Court holds that it was a notice

under Section 15 of the Maharashtra Rent Control Act and, therefore,

sa520.15.odt

dismisses the suit, whereas the lower Appellate Court holds that the

notice under Section 111(g) of the Transfer of Property Act was

essential to determine the tenancy.

5. The matter was admitted on 19-1-2017 and the following

substantial question of law was framed by this Court :

"Whether the Courts below were right in rejecting the claim of the plaintiff for eviction and possession of the defendants from the suit premises after recording the finding that the plaintiff has established that the defendants are the defaulters in payment of rent and the notice was issued determining the tenancy, marked as Exhibit 22 dated 21-3-2004?"

6. Both the Courts are concurrent in holding that one Atmaram,

the father of the defendants, was a tenant in respect of the suit

premises, who paid the monthly rent up to June, 1993, but failed to

pay it at the rate of Rs.25/- with effect from 1-7-1993. Atmaram died

on 4-7-2005, and the suit for eviction and possession was filed against

his legal representatives, who were in possession of the suit property.

In this background, it cannot be said that there was no relation of

'landlord' and 'tenant' between the plaintiff and defendants.

sa520.15.odt

7. Breach of condition of payment of rent for the period from

1-7-1993 to 31-3-2004 is also established. By issuing a notice

dated 21-3-2004 at Exhibit 22, the defendants were called upon to

make the payment of rent within a period of 90 days; failing which, it

was stated that the tenancy shall stand terminated. The payment was

not made to the plaintiff, but it is claimed that subsequently it was

deposited in the Trial Court. Merely because the notice stated that the

proceedings under the provisions of the Maharashtra Rent Control Act

will be instituted for non-compliance of the requirement of payment

of rent, it does not mean that the notice cannot be treated under the

provision of Section 106 of the Transfer of Property Act. The Trial

Court has, therefore, committed an error in treating the notice as

issued under Section 15 of the Maharashtra Rent Control Act. The

notice clearly mentions about determination of the tenancy, and this

was ignored by the Trial Court.

8. The lower Appellate Court holds that the tenant-Atmaram, in

response to the notice issued by the landlord, raised a plea of

perfecting title by way of adverse possession over the suit premises.

Obviously, the ownership or title of the plaintiff was not in dispute.

sa520.15.odt

Once it is held that there existed a relationship of 'landlord' and

'tenant', the question of perfecting the title by way of adverse

possession, does not at all arise. The lower Appellate Court has,

therefore, committed an error in holding that the notice under

Section 111(g) of the Transfer of Property Act was required to be

issued. The said finding cannot, therefore, be sustained.

9. From the findings recorded by both the Courts below, it is

apparent that the defendants are held to be defaulters in payment of

rent. Thus, there was a breach of condition of tenancy. The notice

under Section 106 of the Transfer of Property Act was issued, which

cannot be termed as illegal and invalid. The findings recorded by the

Courts below against the plaintiff are not based on relevant

consideration of law. Hence, the judgments delivered by both the

Courts below will have to be quashed and set aside, holding that the

plaintiff was entitled to a decree for eviction and possession along

with the arrears of rent.

10. In the result, the second appeal is allowed. The judgment

and decree passed by the Trial Court on 30-6-2011 in Regular Civil

Suit No.98 of 2011 as well as the judgment and order

sa520.15.odt

passed by the lower Appellate Court on 13-7-2015 in Regular Civil

Appeal No.147 of 2011, are hereby quashed and set aside. The suit is

decreed as under :

The defendant Nos.1 to 3 are directed to pay an amount of

Rs.1,296/- to the plaintiff towards arrears of rent for 36 months

preceding the institution of the suit. They are further directed to hand

over the peaceful possession of the suit premises to the plaintiff by

removing structure, if any, standing thereon within a period of 30

days from today. In case the defendant Nos.1 to 3 fail to remove the

structure, the plaintiff shall be entitled to remove the same and to

recover the costs of it from the defendants. There shall be an enquiry

into future mesne profits under Order XX, Rule 10 of the Code of Civil

Procedure. The suit is decreed with costs throughout.

JUDGE.

Lanjewar