Bombay High Court
Yadav Tukaram Khade vs Kashibai Gyanba Bhavare And ... on 6 April, 2021
Bench: R. G. Avachat
1 SA-626-2019.doc
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 626 OF 2019
Yadav s/o Tukaram Khade ... Appellant
(Orig. Deft.No.1)
Versus
Smt. Kashibai w/o Gyanba Bhavare and others ... Respondents
....
Mr. P. N. Kalani, Advocate for the appellant
....
CORAM : R. G. AVACHAT, J.
DATED : 06th APRIL, 2021
O R D E R :-
. The challenge in this appeal is to the judgment and
decree dated 30.08.2013 passed by the Civil Judge, Junior Division,
Kalamnuri, in a suit, Regular Civil Suit No.34 of 2011 and confirmed
by the judgment and decree dated 27.08.2019 passed by the District
Judge-1, Hingoli in Regular Civil Appeal No.47 of 2013. By the
impugned judgment and decree, the appellant (original defendant
No.1 in the suit) has been directed to vacate/hand over possession
of the suit premises to the respondent Nos. 1 to 3 herein (plaintiff
and defendant Nos. 2 and 3 in the suit).
2. It is the case of the plaintiff that the suit premises were
let out to the appellant herein in 2005. The period of lease was for
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11 months. On the lease period having been over, the possession of
the appellant became in a capacity as a tenancy by sufferance. The
possession was also asked for on the ground of bona-fide
requirement and default in payment of rent. In the alternative, the
possession was also sought on the ground of title.
3. The trial Court decreed the suit holding that the
provisions of the Maharashtra Rent Control Act do not apply. The
suit was governed by the provisions of Chapter V of the Transfer of
Property Act, 1882 (for short, 'the T.P. Act'). The trial Court held, the
appellant to have been in possession of the suit premises as a lessee.
On efflux of the period of lease, he is liable to vacate the suit
premises. It has also been held that the appellant denied the title of
the plaintiff (true owner) and therefore, became liable to be evicted
from the suit premises on the ground of disclaimer of title. The trial
Court held the plaintiff and original defendant Nos.2 and 3
(respondent Nos.1 to 3) to be owners of the suit premises. Since the
appellant do not have any right, title and interest in the suit
premises, he was directed to hand over its possession in favour of its
owners, respondent Nos. 1 to 3. The first appellate Court confirmed
the judgment and decree passed by the trial Court.
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4. Shri P. N. Kalani, learned Advocate appearing for the
appellant herein, would submit that both the impugned judgments
and the decree are inconsistent with the evidence in the case. The
appellant was said to be a tenant in the suit premises at monthly rent
of Rs.3,000/-. He is alleged to be in arrears of rent. In the plaint,
however, there is no claim for grant of arrears of rent. The appellant
has been occupying the suit premises since 1983. An agreement of
sale has been executed in his favour. He was ready and willing to
perform his part of the agreement. In view of principle of part
performance, he is entitled to continue with the possession of the
suit premises. The suit was also bad for non joinder of necessary
parties, since legal representatives of one of the co-owners of the suit
property had not been made parties to the suit. The appellant before
the first appellate Court had urged for remand of the suit with a
view to give him an opportunity to prove the agreement for sale
executed by original defendant No.2 in his favour. The learned
Advocate has placed on record a draft of substantial questions of law,
said to have arisen in the present Second Appeal. He, therefore,
urged for admission of this Second Appeal.
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5. I have considered the submissions made by the learned
Advocate. Also perused the impugned judgments.
Admittedly, the suit premises originally belonged to
Ukandi Dhondba Muneshwar. Respondent Nos. 1 to 3 (Plaintiff and
defendant Nos. 2 and 3 in the suit) being his daughters, inherited
the suit premises on his demise. The deceased Ukandi had one son,
by name Pandurang. It is in the evidence that he is no more and his
legal representatives are untraceable. It needs no mention that one
of the co-owners can file suit for possession.
6. Admittedly, provisions of the Maharashtra Rent Control
Act, do not apply to the present case. It is a case of lease under
Section 105 of the T. P. Act. The plaintiff had come with a case to
have given the suit premises to the appellant on lease for 11 months.
The witness examined on behalf of the appellant, admitted the
appellant to be a tenant in possession of the suit premises. Since it is
a case of lease under Section 105 of the T. P. Act, for a fixed period of
duration of 11 months and on efflux thereof, the appellant (lessee)
has become liable to vacate the leased premises. The suit has also
been decreed alternatively on the ground of title.
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7. The appellant although entitled to raise as many
defenses as he could, he came with some inconsistent/mutually
exclusive pleas. He, even claims title to the suit premises on the basis
of adverse possession. He also claimed to have purchased the suit
premises from its original owner Muneshwar. Another claim raised
by the appellant is that of having been in possession of the suit
premises, pursuant to the agreement of sale executed by respondent
No.3 (Defendant No.3). Before the trial Court, the appellant did not
produce any document evidencing to have purchased the suit
premises from its original owner. Before the appellate Court, he
urged for remand of the suit with a view to give him opportunity to
prove agreement for sale executed by respondent No.3. The first
appellate Court has rightly negatived his claim. As such, it is a case
of the appellant being in possession of the suit premises without any
right, title and interest either in the nature of ownership, lease or
part performance. The trial Court rightly decreed the suit. The
appellate Court confirmed the same.
8. I do not find any perversity in the impugned judgments
and the decree. In my view, no substantial question of law arises in
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this Second Appeal. The appeal is therefore liable to be dismissed.
The Second Appeal is therefore, dismissed.
9. The prayer for continuation of interim relief stands
rejected.
10. In view of dismissal of the Second Appeal, civil
application No.14240 of 2019 does not survive, therefore, same is
disposed of.
[ R. G. AVACHAT, J. ]
SMS
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