Bombay High Court

Akhileshwar Singh Mangal Sing vs Mevalal Bhgawat Yadav And Another on 23 August, 2021

Bench: V. V. Kankanwadi

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                      21 SECOND APPEAL NO.345 OF 2021

                  AKHILESHWAR SINGH MANGAL SING
                                VERSUS
               MEVALAL BHGAWAT YADAV AND OTHERS
                                   ...
                 Advocate for Appellant : Thole Vinod I.
       Advocate for Respondents No.1 and 2 : Mr. M. R. Sonawane

                                           ...
                                    WITH SA/346/2021
                                           ...

                                    CORAM :   SMT.VIBHA KANKANWADI, J.
                                    DATE :    23-08-2021.

ORDER :

1. Both the appeals have been filed by the same person, however,

challenging two different decrees. It is between the same parties.

Second Appeal No.345 of 2021 has been filed by the appellant/original

plaintiff challenging the concurrent findings and decrees of dismissal of

his suit i.e. Special Civil Suit No.574 of 2011. He had filed that suit for

specific performance of the contract and permanent injunction.

Learned Civil Judge, Senior Division, Aurangabad dismissed the said

suit on 17-11-2015. The original plaintiff/present appellant challenged

the said Judgment and decree in Regular Civil Appeal No.75 of 2016

which was heard by learned District Judge-9, Aruangabad and

2 SA 345-2021, 346-2021

dismissed on 11-10-2019.

2. In Second Appeal No.346 of 2021, the present appellants/

original defendants are challenging concurrent decree. Present

respondents had filed Special Civil Suit No.257 of 2013 before Civil

Judge, Senior Division, Aurangabad for recovery of possession of the

suit property and for damages as well as future mesne profits.

Learned Civil Judge, Senior Division, Aurangabad decreed the suit

and directed the present appellants/original defendants to handover

the possession immediately and also pay damages worth

Rs.1,32,000/-. Inquiry has been ordered in respect of mesne

profits. The said decree was challenged by filing Regular Civil appeal

No.01 of 2016 before the same District Judge-9, Aruangabad and by

Judgment and decree dated 11-10-2019, the said appeal has been

dismissed. Hence, the second appeal.

3. Heard learned Advocate Mr. V. I. Thole for appellants and

learned Advocate Mr. M. R Sonawane for respondents.

4. It has been vehemently submitted on behalf of the appellants

that while dealing with Special Civil Suit No.257 of 2013, the present

respondents/original plaintiffs had come with a case that they had

3 SA 345-2021, 346-2021

given the suit premises to the defendants on rent. Therefore, the

provisions of Maharashtra Rent Control Act were applicable. The

said proceedings ought to have been registered under the Rent

Control Act and in view of Section 33 of the Maharashtra Rent

Control Act, the learned Civil Judge Senior Division had no

jurisdiction to try and entertain the rent suit. Further, there was

absolutely no decision on the point that when the defendants in that

suit i.e. the present appellants were contending that they are

possessing the said property by virtue of agreement to sell executed

in their favour, then issues in that respect were not framed. Even

the learned First Appellate Court failed to consider those points and,

therefore, the substantial questions of law are arising in this case.

5. Further, he submitted that in Second Appeal No.345 of 2021,

the document of agreement to sell was produced and proved. In

fact, the actual transaction was of a nature that defendant No.1 had

booked the property with the builder, however, he had taken loan

from the Bank but had no means to repay it. Therefore, he entered

into an agreement with plaintiff on 09-06-2008 and thereupon

plaintiff had deposited amount of Rs.2,25,000/- to the builder. He

has also paid some amount in the loan account of the defendant

4 SA 345-2021, 346-2021

No.1. He was regularly paying the installment with ICICI Bank from

where the defendant No.1 had taken home loan. The last

installment that was deposited by him was on 28-11-2011 and then

he requested the defendants to execute sale deed in his favour. In

fact, he has paid more than Rs.10 lakh towards the transaction.

Both the Courts have not taken a note of that evidence and have not

even considered the refund of any amount to be paid to the plaintiff.

The Judgment and decree passed by both the Courts below is

perverse and, therefore, that second appeal is also raising

substantial questions of law.

6. Per contra, the learned Advocate appearing for the

respondents vehemently submitted and supported the reasons given

by both the Courts below in both the cases and submitted that no

substantial questions of law are arising in this case. The Courts

below had jurisdiction to try and entertain the respective suits. He

relied on Kammana Sambamurthy (deceased by L.Rs.) vs.

Kalipatnapu Atchutamma (deceased by L.R) and Ors., reported in

AIR 2011 Supreme Court 103, wherein it has been held that,

"When the wife who was also the owner of the property was not party to the agreement and there was also no express or implied authority given by her

5 SA 345-2021, 346-2021

to her husband then Section 41 of the Transfer of Property Act would not apply. The vendee will not be entitled to seek specific performance of the agreement."

Further, reliance has been placed on the decision in A. H. Mistry &

Co. vs. Awadh Narayan Singh Shiv Nayak Singh & Ors., reported in

2010 (6) Bom.C.R. 469, which is also on the same line as to when

only one of the co-owner agrees to sell the property then the

contract will not be binding on the other co-owners. Further,

reliance has been placed on Sultan and others vs. Ganesh and

others, reported in AIR 1988 Supreme Court 716, wherein it has

been held that,

"In a suit for declaration of title and possession filed by the plaintiff who claimed to have purchased the premises, the defendant who was in possession, claimed title by adverse possession against the vendor. The defendant never raised the plea that he was the tenant of the vendor and on the contrary denied the relationship of landlord and tenant. The plaintiff had also claimed a decree for mesne profits and rent. The decree for possession and rent was passed by the lower Courts......."

"Since the suit was not for eviction but was for possession based on title from the very beginning,

6 SA 345-2021, 346-2021

the defendant could not also claim protection under Section 13-A of the Rent Act in respect of non- payment of rent. Such plea cannot be raised at a subsequent stage."

7. At the outset, it is to be noted that when both the suits were

before the same Trial Judge and the parties were fighting in the

same capacity as they had contended, then it appears that both the

suits ought to have been tried together and no separate Judgments

ought to have been given. Same is the case with the appeal. Both

the Lower Courts i.e. same Judges have given two separate

Judgments on the same day. The confusions and unnecessary

repetitions would have been then avoided.

8. In Special Civil Suit No.257 of 2013 when the plaintiffs

themselves had come with a case that they had given the suit

property on rent and the defendants were denying their said

capacity then it appears that the issue regarding jurisdiction was not

framed at all. That being a law point, the appellant herein can

definitely raised it even at the stage of second appeal. According to

the appellant in view of Section 33 of the Maharashtra Rent Control

Act, the Civil Judge Senior Division had no jurisdiction to try and

entertain the suit. Further, it is also to be noted that the plaintiff

7 SA 345-2021, 346-2021

therein had come with a case that the defendant was tenant. Both

the parties agree that the provisions of Maharashtra Rent Control Act

are applicable to Waluj area of Aurangabad. If this is so, then it is

also required to be noted, as to whether the second appeal is

maintainable. In view of Dattatraya Krishna Jangam vs Jairam

Ganesh Gore, reported in AIR 1965 Bombay 177, which is the

decision of the Full Bench of this Court, it is then required to be seen

that as to whether the second appeal is maintainable. The basic

question that has to be answered is whether there was relationship

of landlord and tenant between the parties and whether that

relationship has been proved by the plaintifs. As regards Second

Appeal No.345 of 2021 is concerned, there appears to be evidence

regarding payments of installment by the plaintif in the loan account

of the defendant. There is a document dated 09-06-2008 styled as

agreement to sell. The defendants had come with a case that that

document is a forged document. Therefore, on the basis of evidence

both the Courts had come to the conclusion that plaintif has failed

to prove execution of such agreement in his favour. But then when

evidence has been adduced it is then required to be seen as to

whether that fnding is perverse and, therefore, substantial questions

of law are arising in this case requiring both the second appeals to

8 SA 345-2021, 346-2021

be admitted, accordingly they are admitted. Following are the

substantial questions of law :-

A) Whether Second Appeal No.346 of 2021 is maintainable in view of Dattatraya Krishna Jangam vs Jairam Ganesh Gore, reported in AIR 1965 Bombay 177 ?

B) Whether the Civil Judge Senior Division had jurisdiction to decide Special Civil Suit No.257 of 2013 wherein the plaintifs contended the relationship of landlord and tenant and whether the provisions of Maharashtra Rent Control Act are applicable to the suit premises ?

C) Whether Special Civil Suit No.257 of 2013 was for seeking eviction of tenant under the provisions of Maharashtra Rent Control Act or it was suit for possession on the basis of title ?

D) Whether the plaintifs in Special Civil Suit No.257 of 2013 were entitled to get possession and damages as prayed ?

E) Whether the plaintif in Regular Civil Suit No.75 of 2016 had proved that defendants No.1 and 2 therein had entered into agreement to sell the suit property on 09-06-2008 in his favour ?

F) Whether the said plaintif was and is ready and willing to perform his part of the contract ?

      G)        Whether the plaintif therein was entitled to the relief of





                                         9                      SA 345-2021, 346-2021

specifc performance of the contract or alternatively the Courts below ought to have granted refund of the amount paid by him towards the mitigation of loan taken by defendant No.1 ?