Sukhdeo Rama Jadhav vs Kisan Balaji Malve
2021 Latest Caselaw 13274 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                         SECOND APPEAL NO.761 of 2012

                           SUKHADEO RAMA JADHAV
                                    VERSUS
                              KISAN BALAJI MALVE
                                      .....
                     Advocate for Appellant : Mr. P. K. Palve
                    Advocate for Respondent : Mr. Rahul Joshi
                                      .....

                                     CORAM :     SMT.VIBHA KANKANWADI, J.
                                     DATE :      16-09-2021.

ORDER :

1. Present appeal has been filed by the original defendant

challenging the concurrent Judgment and decree. Present respondent

had filed Regular Civil Suit No.26 of 2000 before Civil Judge Junior

Division, Sillod, Taluka Sillod, District Aurangabad, for possession and

arrears of rent. The said suit came to be decreed on 15-04-2006. The

present appellant challenged the said Judgment and decree by filing

Regular Civil Appeal No.213 of 2008. The said appeal was heard and

dismissed by learned District Judge-3, Aurangabad on 14-09-2010.

Hence, this second appeal.

2. Heard learned Advocate Mr. P. K. Palve for appellant and learned

Advocate Mr. Rahul Joshi for respondent. In order to cut short, it is

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stated that both of them have made submissions in support of their

respective contentions.

3. It is admitted that the Maharashtra Rent Control Act or the

then Bombay Rent control Act were not applicable to the suit

property and, therefore, the suit for arrears of rent and possession

came to be filed under the provisions of the Transfer of Property Act.

It is not in dispute that plaintiff is the owner of the suit property

consisting of four rooms. The plaintiff had come with a case that

monthly rent of the four rooms was Rs.400/- and it was given to the

defendant. The defendant has not paid the rent since 1995. It is

also stated that initially the rent period was limited but then it was

extended or renewed from time to time. Plaintiff also contends that

he is in need of premises and, therefore, he issued notice to the

defendant on 07-05-1999 and directed the defendant to handover

the possession. Again a notice was issued on 01-11-1999. Hence,

the suit.

4. The defendant in his written statement contended that though

initially the plaintiff was the owner of the suit premises, yet he

agreed to sell the suit premises for a consideration of Rs.25,000/- on

15-08-1995. He had paid earnest amount of Rs.1000/- at that time,

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later on further amount of Rs.19000/- has been paid. He was ready

and willing to perform his part of the contract by giving remaining

amount of Rs.5000/-. It was then contended that the initially the

rent was Rs.20/- per month but after the said agreement, the

plaintiff had not claimed the rent amount. He, therefore, prayed for

dismissal of the suit.

5. As aforesaid, the Trial Judge has come to the conclusion that

the defendant is in arrears of rent from January 1995 to 31-10-1999

to the extent of Rs.13600/-. Plaintiff requires the suit premises

bonafide for his use and occupation. The notice is legal. Defendant

has failed to prove that the plaintiff had agreed to sell the suit

property to him and, therefore, the suit came to be decreed. The

appeal filed by the present appellant came to be dismissed.

6. When basically the defendant has agreed that his induction in

the suit premises was as tenant then unless he proves that in view

of the agreement to sell now he is possessing the said property

under Section 53-A of the Transfer of Property Act. It is to be noted

that no such agreement has been produced and proved by the

defendant. The agreement to sell as per the contention of the

defendant appears to be the oral agreement executed on 15-08-

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1995. The amendment to Section 53-A of the Transfer of Property

Act came in the year 2000 which makes it compulsory that there

should be written agreement to claim protection under the said

section. Even if we consider that since the alleged date of

agreement is prior to the amendment to Section 53-A of the

Transfer of Property Act, it can be seen that when possession is

stated to be confirmed by way of such agreement then such

agreement ought to have been registered one and that too on a

sufficiently stamped paper. It also appears that defendant had tried

to contend at another breath that in fact the transaction that had

taken place on 15-08-1995 was sale transaction. Even if for the

sake of arguments we accept, yet the value was more than Rs.100/-

and, therefore, such document of sale should be compulsorily

registered, therefore on any count his contention fails.

7. Definitely, the evidence that is adduced by the plaintiff and the

fact that the defendant's induction in the suit premises was on the

basis of tenancy and admittedly he is in arrears of rent since January

1995, the Courts below have correctly decreed the suit and

dismissed the appeal respectively. Both the Courts below on the

appreciation of the evidence have come to the conclusion that the

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notices those were issued by the plaintiff for eviction under Section

106 of the Transfer of Property Act is legal and valid. The decision

does not call for any interference. No substantial questions of law

are pointed out by the appellant as contemplated under Section 100

of the Code of Civil Procedure, the appeal deserves to be dismissed,

accordingly, it is dismissed.

(SMT. VIBHA KANKANWADI) JUDGE

vjg/-