Jayaji S/O Sambhaji Raut vs Chunnilal S/O Chandanlal Lahoti
2017 Latest Caselaw 4431 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
                        Second Appeal No. 217 of 1989


 Jayaji son of Sambhahi Raut,
 since dead, through his
 legal heirs :

 1.      Smt. Gayabai widow of Jayaji
         Raut,
         aged about 60 years,
         resident of Marwadipura,
         near Gopal Temple, Karanja [Lad],
         Tq. Karanja, Distt. Akola.

 2.      Smt. Kokila Ramesh Khandare,
         aged about 38 years,
         resident of near Balapur Naka,
         Bharti Plot,
         Akola.

 3.      Smt. Malti wife of Shivaji Sawant,
         aged about 36 years,
         resident of Ramai Parisar,
         near Railway Station,
         Karanja (Lad),
         Tq. Karanja, Distt. Akola.

 4.      Shri Gautam son of Jayaji
         Raut,
         aged about 34 years,



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         resident of Marwadipura, near
         Gopal Temple, Karanja [Lad],
         Tq. Karanja, Distt. Akola.

 5.      Smt. Ujwala wife of Pran
         Khandare,
         aged about 28 years,
         resident of Chandramani Vasahat,
         near Goregaon Depot,
         Goregaon [West],
         Bombay-400 062.

 6.      Vivek son of Jayaji Raut,
         aged 21 years,
         resident of Marwadipura,
         near Gopal Temple,
         Karanja [Lad],
         Tq. Karanja, Distt. Akola.          .....           Appellants.


                               Versus


 Chunnilal son of Chandanmal
 Lahoti,
 since dead, through his legal
 heirs :

 1.     Smt. Kamlabai widow of Chunnilal
        Lahoti, [dead].

 1.a Vijay son of Chunnilal Lahoti,
     aged about 52 years,
     resident of Santoshimata
     Colony, Karanja [Lad],
     Distt. Washim.

 1.b Arvind son of Chunnilal Lahoti,
     aged about 48 years,
     occupation - business,




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        resident of Janta Commercial
        Bank,
        Amravati, Distt. Amravati.

 1.c Krushnakumar son of
     Chunnilal Lahoti,
     aged about 41 years,
     occupation - service,
     resident of Marwadipura,
     near Gopal Mandir,
     Karanja [Lad],
     Distt. Washim.


 1.d Padmabai wife of Rajednra Kumarji
     Rathi,
     aged about 67 years,
     occupation Household,
     resident of C/o Rajendrakumar Rathi,
     Temple Road Bazar, near
     Shukla School,
     Sitabuldi, Nagpur.

 1.e Shobha wife of Rameshchandra
     Rathi,
     aged about 55 years,
     occupation - Household,
     resident of Krushnnarpan
     Colony, Amravati.

 1.f Manda wife of Pramodkumar
     Mundhada,
     aged about 53 years,
     occupation - Household,
     resident of Sirajgaon Kasba,
     Tq. Chandur Bazar,
     Distt. Amravati.

 1.g Sarla wife of Bhaginathji Rathi,
     aged about 52 years,




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        occupation - Household,
        resident of Shivaji Society,
        Akot, Tq. Akot, Distt. Akola.               .....        Respondents.



                                 *****
 Mr. R. Kalangiwale, Adv., for the appellants.

 None for the respondents, though served.

                                       *****


                                   CORAM :        A.S. CHANDURKAR, J.

                                   Date       :    13th July, 2017
 ORAL JUDGMENT:

01. This appeal has been admitted on the following substantial

questions of law framed on 13th July, 1989 :-

"4. That both the Courts below should have held that there was a novatio between the respondent and the appellant and the earlier contract of tenancy did not subsist and therefore, the notice given by the respondent to the appellant was not proper and legal and therefore they should not have granted a decree for possession of the suit premises in favour of the respondent.

5. That, the learned lower Court should have held that the respondent had agreed to accept the rent of Rs.15/- per month and waived the notice.

6. That the learned lower Court should have held that there was oral agreement between the parties and the respondent had agreed to execute the sale-deed of the suit premises in favour of the appellant for Rs.8,000/- and had

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accepted Rs.2,000/- as earnest money.

7. That the learned lower Court should have stayed the appeal in view of the fact that the Appellant has filed a suit for specific performance of contract against the respondent bearing No. 31/88."

02. The respondents are the legal heirs of the original plaintiff

who was the owner of house property situated at Karanja on Nazul Plot

No. 275. It was his case that the original defendant - Jayaji was

occupying the suit premises as a tenant paying rent of Rs.11/- per

month. The original plaintiff approached the Rent Controller for grant

of permission to issue quit notice. In these proceedings, such

permission came to be granted which attained finality. Thereafter, the

original plaintiff issued notice determining the tenancy and as the

possession was not handed over, he filed suit being Regular Civil Suit

No. 121 of 1983 for eviction.

03. The claim was opposed by the original defendant. By

amending the Written Statement, a plea was raised on 25 th May, 1985,

the plaintiff had agreed to sell the suit house to the original defendant

for consideration of Rs.8,000-00. Rs.2,000/- were received as earnest

amount and it was agreed that rent would be enhanced to Rs.15/- per

month. Hence dismissal of the suit was sought.

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04. After the parties led evidence, the trial Court disbelieved the

defence as regards oral agreement to sell. After holding the notice of

termination being valid, the trial Court decreed the suit. The appellate

Court by its judgment dated 4th February, 1989 dismissed the appeal.

Hence this Second Appeal.

05. Shri R. Kalangiwale, learned counsel for the appellants,

submitted that both the Courts erred in disbelieving the case of the

original defendant as regards oral agreement dated 25 th May, 1985.

He submitted that the defendant had examined DW 2 Akatram who

had witnessed the said agreement. His deposition has been

disbelieved merely on the ground that he was well acquainted with the

defendant. According to him, if the testimony of DW 2 was

independently assessed, it was clear that the agreement was duly

proved and, therefore, the suit ought to have been dismissed. He

further submitted that suit for specific performance was also filed in

the year 1988 and said aspect also required consideration. He,

therefore, submitted that the impugned judgments are liable to be set

aside and appeal deserves to be allowed.

06. The respondents - legal heirs of the original plaintiff have

been duly served and they have not chosen to contest the appeal.

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However, with the assistance of learned counsel for the appellants, I

have gone through the impugned judgments and the other evidence

placed on record.

07. The aspect of permission being granted to issue quit notice

is not in dispute. It is further not in dispute that notice terminating

tenancy after such permission was validly served on the original

defendant. The only question is with regard to the oral agreement

between the parties dated 25th May, 1985. In this regard, it has to be

noted that the suit was filed in the year 1983 and according to the

defendant, during its pendency, this oral agreement was entered into.

It has been found that there was no evidence on record to indicate

payment of earnest amount of Rs.2,000/-. Further, according to the

defendant, it was agreed that rent would be enhanced to Rs.15/- per

month. This amount of enhanced rent has not been shown to have

been remitted to the plaintiff. It has been further found that the

defendant was a teacher and, thus, the Courts have observed that it

was expected of him of obtaining some receipt for payment of the

alleged earnest amount. In so far as deposition of DW 2 is concerned,

it has been found that he was on visiting terms with the defendant.

Though it is true that merely on that basis his deposition could not

have been discarded, the conclusion that the agreement was not

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proved is arrived at after taking into consideration the entire evidence

and on the touchstone of preponderance of probabilities. Said aspect

being within the realm of appreciation of evidence and the same not

having been found to be perverse, the same cannot be interfered with.

Though the original defendant had filed suit for specific performance in

the year 1988, that by itself cannot lead to the conclusion that the

agreement dated 25th May, 1985 was proved. Needless to state that if

the original defendant ultimately succeeds in that suit, he would be

entitled for relief therein in accordance with law.

08. In view of aforesaid discussion, the substantial questions of

law as framed are answered against the appellants. The Appeal

accordingly stands dismissed with no order as to costs.

Judge

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