Rajaram Khondoje Gaikwad vs Smt.Chagonabai Vishwanath ...
2021 Latest Caselaw 3330 Bom

                                                                     3-wp-4806-1993


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION

                        WRIT PETITION NO. 4806 OF 1993

 Rajaram Khondoji Gaikwad                        ..Petitioner
      Vs.
 Chagonabai Vishwanath Shinde & Ors.             ..Respondents

                                        ----

 Mr. Prathamesh B. Bhargude i/b. Mr. Sugandh B. Deshmukh & Mr.
 A. V. Anturkar Senior Adv., for the Petitioner.
 Mr. P. P. Kakade, for the Respondents.

                                        ----

                                       CORAM : C.V. BHADANG, J.

RESERVED ON : 8th FEBRUARY 2021 PRONOUNCED ON : 23rd FEBRUARY 2021

P.C.

. The challenge in this petition is to the judgment and decree

dated 5/10/1993 passed by the learned Additional District Judge at

Pune in Civil Appeal No.15/1990. By the impugned judgment, the

learned District Judge while dismissing the appeal filed by late

Rajaram Gaikwad (original defendant) has confirmed the judgment

and decree dated 21/10/1989 passed by the learned Small Causes

Court at Pune, thereby directing eviction of late Rajaram Gaikwad,

from the suit premises.

     Mamta Kale                                                      page 1 of 12




                                                                      3-wp-4806-1993

2. The brief facts necessary for the disposal of the petition may

be stated thus-

That late Chagonabai Shinde (original plaintiff) filed Suit

No.2151/1986 against Rajaram Gaikwad (since deceased) for

eviction and possession on the ground of default in the matter of

payment of rent, reasonable and bonafide requirement, nuisance

and on the ground that the tenant had made permanent

construction in the tenanted premises. The parties herein are the

legal representatives of the original plaintiff and the defendant. For

the sake of convenience, they are referred to in their original

capacity as plaintiff and defendant.

3. The suit premises consist of one room admeasuring 7 x 16 feet

on the ground floor standing on CTS No.1857, Sadashiv Peth, Pune,

more particularly described in para 1 of the plaint.

4. The suit property originally belonged to one Vasant Pote and

others. Plaintiff purchased the suit property Benami, in the name of

her sister Harinabai on 23/6/1971 and subsequently, the property

was recorded in the name of the plaintiff on 13/11/1979. The case

made out in the plaint is that the defendant was occupying the suit

premises as a tenant on monthly rent of Rs.10/- exclusive of taxes.

      Mamta Kale                                                     page 2 of 12




                                                                 3-wp-4806-1993

The tenancy was as per the English Calender month. It was the

material case that the defendant had not paid the rent from

23/6/1971 either to the plaintiff or Harinabai and thus the

defendant was in arrears of rent of Rs.755/- plus taxes and has

become a willful defaulter. It was next contended that the family of

the plaintiff consists of eight members and she was in possession of

only two rooms which are insufficient. It was contended that the

elder son of the plaintiff was married and her two daughters were

also residing with her and the younger son was of a marriageable

age. It was thus contended that the plaintiff reasonably and

bonafide requires the suit premises for her occupation. It was

contended that the defendant has acquired five blocks at Vadgaon

Sheri and another premises at Kalewadi, Pimpri and was residing

there. It was thus contended that the defendant was not in need of

the suit premises. It was also contended that the defendant had

constructed a bath room and attick of wooden material in the suit

premises without prior permission of the plaintiff. It was also

contended that the defendant used to keep water tap open and there

were other acts attributed to him including of creating ruckus in a

drunken condition which was a nuisance. On all such grounds, the

eviction of the defendant was sought.

    Mamta Kale                                                  page 3 of 12




                                                                     3-wp-4806-1993

5. The defendant resisted the suit. It was denied that the

plaintiff was the owner or "vahivatdar" of the suit property. The

alleged purchase of the property by the plaintiff under a Benami

transaction and the transfer of the suit property in the name of the

plaintiff on 13/11/1979 were denied for want of knowledge. All

other adverse allegations about the defendant being in arrears of

rent or a defaulter etc. were denied. It was contended that the

defendant was occupying the suit premises as a tenant over last 30

years and paying rent at the rate of Rs.6/- per month inclusive of all

taxes and charges. It was contended that the defendant lost his wife

and was aged and was not maintaining good relations with his sons

and thus, had no other premises to occupy than the suit premises.

6. On the basis of the rival pleadings, the learned Trial Court

framed in all nine issues including whether the plaintiff was entitled

to possession, on the ground that the defendant had challenged the

title of the plaintiff.

7. The plaintiff examined her daughter Shobhana while the

defendant examined his son Sudam who is a Power of Attorney

holder. The parties produced certain documents.

      Mamta Kale                                                    page 4 of 12




                                                                          3-wp-4806-1993

8. The learned Trial Court found that the plaintiff had

established the case of the premises being reasonably and bonafide

required by her for personal use and occupation and also on the

ground that the defendant had challenged the title of the plaintiff. It

was also found that it was the plaintiff who would suffer greater

hardship if the eviction is not granted. All other grounds were

found to be not proved. In view of the affirmative findings against

Issue Nos.2, 3 and 6, the learned Trial Court by a judgment and

decree dated 5/10/1993 decreed the suit.

9. Feeling aggrieved, the defendant challenged the same before

the learned District Judge. The learned District Judge framed

following points for determination.

1. Does the plaintiff prove her reasonable and bonafide requirement for the decree of possession of the suit premises ?

2. Is there necessity to interfere in the order and decree passed by the Trial Court ?

3. What order ?

10. The learned District Judge answered the point No.1 in the

affirmative and point No.2 in the negative and by the impugned

judgment has dismissed the appeal. Hence, this petition.

      Mamta Kale                                                         page 5 of 12




                                                                    3-wp-4806-1993

11. I have heard Mr. Prathamesh Bhargude, the learned counsel

for the petitioner and Mr. P. P. Kakade, the learned counsel for the

respondents. The learned counsel for the petitioner has also placed

written submissions on record. I have gone through the same and

the record.

12. It is submitted by the learned counsel for the petitioner that

on her own saying the plaintiff claims to have purchased the suit

property benami in the name of her sister Harinabai Bhosale. It is

therefore submitted that the suit would be barred by the provisions

of Section 4 of the Prohibition of Benami Property Transactions

Act,1988 ('Act of 1988', for short). It is submitted that the

subsequent mutation entry dated 13/11/1979 cannot confer any

title on the plaintiff. It is submitted that the mutation entries are for

fiscal purpose and would not confer any title. Reliance in this

regard is placed on the decision of the Supreme Court in the case of

Rajinder Singh Vs. State of Jammu and Kashmir and others (2008) 9

SCC 368. It is next submitted that in the absence of any title, the

plaintiff, as a landlord who is only a rent collector would not be

entitled to seek eviction on the ground of personal occupation under

Section 13(1)(g) of the Bombay Rents, Hotel and Lodging House

Rates Control Act, 1947 ('Rent Act', for short). For this purpose, the

Mamta Kale page 6 of 12

3-wp-4806-1993

learned counsel has placed reliance on Explanation (b) to Section

13(2) of the Rent Act. It is submitted that the expression landlord

for the purposes of Section 13(1)(g) would not include a rent

farmer or rent collector or a estate manager. Reliance in this regard

is placed on the decision of this Court in Kamruddin Masjit Trust by

its Mutawali Trustee Shaikh Bashir Ismail Vs. Abdul Rahiman

Fakiruddin 1986 (2) Bom.C.R. 121. It is submitted that even

otherwise the ground of bonafide personal occupation is not

established on facts.

13. Lastly, it is submitted that the ground of denial of title also

does not subsist in view of the fact that the original plaintiff had

herself claimed purchase of the suit property benami in the name of

her sister. It is submitted that the decision in the case of Sankara

Hali & Sankara Institute of Philosophy and Culture Vs. Kishorilal

Goenka and Anr. (1996) 7 SCC 55 is distinguishable on facts.

14. The learned counsel for the respondent has supported the

impugned judgment. It is submitted that a three Judge Bench of the

Supreme Court in the case of R. Rajgopal Reddy (Dead) by LRs. &

Ors. Vs. Padmini Chandrasekharan (Dead) by LRs. (1995) 2 SCC

630 has held that the provisions of Section 4(1) of the Act of 1988

Mamta Kale page 7 of 12

3-wp-4806-1993

are not retrospective in operation. It is thus submitted that the

reliance on the provisions of the said Act, is misplaced in asmuch as

the transaction in this case is dated 23/6/1971 and even the suit

was filed on 22/12/1986 i.e. prior to the coming into force of the

Act of 1988. It is submitted that the ground of bonafide personal

need has rightly been upheld as also the ground of denial of title.

15. I have carefully considered the rival circumstances and the

submissions made. At the outset, it is necessary to note that the

eviction has been ordered only on the basis of the twin grounds i.e.

of suit premises being required by the plaintiff for her bonafide

personal use and occupation i.e. under Section 13(1)(g) of the Rent

Act and on the ground that the defendant had denied the title of the

plaintiff. All other grounds have been negatived. Thus, the

consideration is confined only to these two grounds.

16. Coming to the 1988 Act, it is evident that the Supreme Court

in the case of Rajgopal Reddy (supra) has held that the provisions

of the said Act are not retrospective in operation. Thus, the said Act

cannot have any bearing. Section 1(3) of the said Act would

indicate that the provisions of Section 3, 5 and 8 came into force at

once while the remaining provisions (which would include Section

Mamta Kale page 8 of 12

3-wp-4806-1993

4) shall be deemed to have come into force on 19/7/1988. It can

thus be seen that the Act would not affect the transaction dated

23/6/1971.

17. The record discloses that there is a contemporary agreement

(Exh.38) executed on the same day i.e. on 23/6/1971 (Exh.37) on

which date the sale deed was executed in favour of the sister of the

plaintiff. Then there are the entries in the property card (Exh.33

and 40). Having regard to the fact that the act has been held to be

not retrospective in operation, the contention on behalf of the

petitioner cannot be accepted.

18. Coming to the ground based on the Explanation 'b' to Sub-

section 2 of Section 13 of the Rent Act, it is true that as per the

explanation the expression 'landlord', for the purpose of the eviction

sought under Section 13(1)(g) of the said Act would not include a

rent collector. However, once it is held that the plaintiff was owner

having acquired title as per the sale deed dated 23/6/1971 and the

agreement Exh.38, the contention based on the said explanation

also cannot be accepted.

    Mamta Kale                                                   page 9 of 12




                                                                  3-wp-4806-1993

19. Coming to the ground of reasonable and bonafide personal

occupation, both the Courts on the basis of the oral evidence have

concurrently held the said ground to be proved and I do not find

that there is any infirmity in the said finding. It has come on record

that at the relevant time the plaintiff was in possession of two rooms

admeasuring 9 x 7 ft and 16 x 10 ft each, which included a sanitary

block. At the relevant time, there were eight members in the family

of plaintiff including two couples. The elder son of the plaintiff was

married. Another was of marriageable age and there was an

unmarried daughter. It is trite that the landlord is the best judge of

his requirement and even otherwise on facts the need of the

landlord has rightly been held to be reasonable and bonafide. Quite

to the contrary, it has come on record that the defendant was living

at Pimpri with his third son Nandkishore. The elder son Vilas was

living at Vadgaon Sheri at his own house of four blocks. Second son

Chandrakant was staying in rented premises at Hadapsar. It has

come on record that Sudam the fourth son of defendant was only

residing in the suit premises alongwith his wife and two daughters.

Thus, on a consideration of comparative hardship, the Courts have

come to the conclusion and rightly so that it is the plaintiff who

would suffer greater hardship in the event eviction decree is refused.

   Mamta Kale                                                  page 10 of 12




                                                                      3-wp-4806-1993

20. Lastly, coming to the ground of denial of title. As already held

and in view of the fact that the contention based on the Act of 1988

has been negatived, the plaintiff was the owner and the landlord.

21. It is true that the revenue entries are for fiscal purposes and

cannot confer title. However, in the present case, the plaintiff is

claiming title on the basis of sale deed dated 23/6/1971 which

albeit according to her is executed benami in the name of her sister

as an ostensible owner. Once it is held that the said transaction is

not hit by the provisions of the Act of 1988, the claim of the plaintiff

is not merely based on the mutation entries taken on 13/11/1979.

Thus, the decision in the case of Rajinder Singh (supra) cannot

come to the aid of the petitioner in this case.

22. It is necessary to note that the defendant within one month of

the receipt of the notice dated 14/3/1986 had filed MA

No.254/1986 for fixation of standard rate against the respondent

(plaintiff). It can thus be seen that on or about the filing of the suit

itself the defendant by filing the said proceedings had accepted the

plaintiff as a landlord for all practical purposes. The subsequent

denial of the title therefore would result into the forfeiture of the

tenancy under Section 111(g)(2) of the Transfer of Property Act,

Mamta Kale page 11 of 12

3-wp-4806-1993

1882. The finding so recorded, in my considered view, does not

suffer from any infirmity.

23. I have gone through the impugned judgment and decree

passed by the Courts below and I do not find that it suffers from any

infirmity so as to require interference in the supervisory jurisdiction

under Article 227 of the Constitution of India. The petition is

without any merit and is accordingly dismissed with no order as to

costs.

C.V. BHADANG, J.

   Mamta Kale                                                   page 12 of 12