Smt Narmadabai Rangrao Raut & 2 ... vs Ramesh Natthuji Mandawkar
2017 Latest Caselaw 4622 Bom

                                                                   sa513.03


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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
                        Second Appeal No. 513 of 2003


 1.      Smt. Narmadabai wife of Rangrao
         Raut,
         aged 59 years,
         occupation - Household,

 2.      Janardan son of Rangrao Raut,
         aged 30 years,
         occupation - service,

 3.      Kailash son of Rangrao Raut,
         aged 28 years,
         occupation - Service,

         all residents of Janardanpath,
         Amravati, Tq. & Distt.
         Amravati.                           .....           Appellants.
                                                           Org. Defts.


                                   Versus


 Ramesh son of Natthuji
 Mandawkar,
 aged 36 years,
 occupation - business,
 resident of Janardhanpath,



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 Amravati,
 Tq. & Distt. Amrvati.                              .....        Respondent.
                                                                 Org. Plff.



                                 *****
 Mr. P. R. Agrawal, Adv., for the appellants.

 Mr. S. V. Purohit, Adv., for respondent.

                                        *****


                                   CORAM :         A.S. CHANDURKAR, J.

                                   Date       :    18th July, 2017

 ORAL JUDGMENT:

01. This Appeal has been heard on the following substantial

questions of law:-

"1. Whether the suit for ejectment is maintainable in absence of permission from the Rent Controller to issue quit notice when, admittedly, the defendant was the licensee not only of the present owner, but of the previous owner as well?

2. Whether the judgment of the lower appellate Court could be considered to be legal and proper when without there being any ground or occasion, the learned appellate Court has recorded the defendant as trespasser on the face of his admitted status as licensee?"

02. The respondent is the original plaintiff who had filed suit for

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declaration and possession of Western portion of house admeasuring

400 sq. ft. The plaintiff claims to have purchased the same by

registered sale-deed dated 25th February, 1988. According to the

plaintiff, the defendant no.1 was his sister and defendant nos. 2 and 3

were sons of defendant no.1. The husband of defendant no.1 was in

service and as he was transferred out of Amravati, the plaintiff

permitted the defendant no.1 to reside in a portion of the suit house.

Though the defendant no.1 had constructed a separate house, she did

not vacate the premises and hence after issuing notice seeking

possession, the suit came to be filed.

03. In the Written Statement filed by the defendants, it was

pleaded that after the plaintiff became owner of the suit house, he

inducted the defendant no.1 as a tenant in respect of 200 sq.ft., on

25th May, 1990 at annual rent of Rs.25/-. This lease agreement was

for a period of ninety-nine years and an amount of Rs.3500/- had been

paid to the plaintiff on 6th February, 1989. It was, therefore, prayed

that the suit be dismissed.

04. After the parties led evidence, the trial Court held that the

plaintiff had proved that he was the owner of the suit property and that

he had permitted the defendants to occupy two rooms in gratuitous

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manner. The Lease Agreement at Exh.26 was held to be inadmissible

as it was unregistered. Thus, on the basis of title, the suit came to be

decreed. The appellate Court affirmed the findings of the trial Court.

05. Shri P.R. Agrawal, learned counsel for the original

defendants, submitted that both the Courts failed to take into

consideration the fact that there was a relationship of licensor and

licensee between the parties. According to the defendant no.1, she

was residing there since 1976. According to him, the document at

Exh.26 was not liable to be discarded. Assuming that the same was

unregistered, it could be considered for collateral purpose under

Section 49 of the Registration Act, 1908. It was, thus, urged that

without obtaining permission from the Rent Controller, the defendants

could not be evicted.

06. Shri S. V. Purohit, learned counsel for the original plaintiff,

supported the impugned judgments. According to him, the document

at Exh.26 was rightly discarded by both the Courts as it was an

unregistered document. Even otherwise, the stamp paper was

purchased on 9th January, 1989, the defendant no.1 had signed the

document on 6th February, 1989 and the plaintiff who had denied his

signature, was shown to have signed the document on 25th May,

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1990. It was then submitted that even for collateral purpose, this

document could not be gone into as the collateral purpose would be

something different from establishing the relationship of licensor and

licensee.

07. I have heard the learned counsel for the parties at length

and perused the records of the case.

08. The title of the plaintiff has been proved vide sale-deed at

Exh.15 dated 25th February, 1988. The stand of the defendants is

specific and is based on the document at Exh.26. This document

indicates that it is purported to be a Lease Agreement. The stamp

paper has been purchased on 9th January, 1989, the defendant no.1

has signed said document on 6th February, 1989 and the plaintiff has

signed the same on 25th May, 1990. It has been found by both the

Courts that there is no explanation for the document being signed on

different dates after the stamp paper was purchased. This approach

appears to be justified. Even assuming that said document could be

taken into consideration, it is clear that the same was required to be

duly registered as it is a lease agreement for ninety-nine years. Faced

with this situation, it was urged by the appellants that in terms of

proviso to Section 49 of the Registration Act, 1908, it could be

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considered for collateral purpose. In K. B. Saha & Sons Pvt. Ltd.

Vs. Development Consultant Ltd. [ (2008) 8 SCC 564] , it has been

held that a collateral transaction must be independent of the

transaction which in law requires registration. In other words, the

document at Exh.26, which is a Lease-Deed, cannot be used for the

purpose of demonstrating the manner in which the defendants are

inducted in possession and, thus, lessees. It cannot be used to prove

the entry as a lessee. Hence, on that count, the finding recorded by

both the Courts with regard to Exh.26 does not call for interference.

09. The submission that the defendant no.1 was residing in the

suit premises since 1961 is not of much avail as the plaintiff purchased

the suit property on 25th February, 1988. The sale-deed at Exh.15

does not refer to the occupation of two rooms by the defendant. In the

light of the specific stand taken by relying upon the document at

Exh.26 that the defendant was a lessee, this aspect would not assist

the case of the appellants. Having regard to the fact of defendants'

status as lessees not being proved, there would be no question of

obtaining permission from the Rent Controller.

10. I view of aforesaid, the substantial questions of law are

answered by holding that the suit for ejectment was maintainable

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without permission from the Rent Controller and the judgment of the

first appellate Court maintaining the decree passed by the trial Court

was legal and proper.

11. As a result, the Second Appeal stands dismissed with no

order as to costs.

12. At this stage, learned counsel for the appellants seeks

continuation of interim relief for a period of eight weeks from today.

This request is opposed by the learned counsel for the respondent.

The decree for eviction shall not be executed for a period of eight

weeks from today.

Judge

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