Bombay High Court
Rohidas Somji Mali vs Mohiyoddin Sayyad Roshan on 6 April, 2022
Bench: Mangesh S. Patil
1 CRA / 47 / 2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
925 CIVIL REVISION APPLICATION NO.47 OF 2022
ROHIDAS SOMJI MALI
VERSUS
MOHIYODDIN SAYYAD ROSHAN
...
Advocate for Petitioner : Mr. Kishore C. Sant
...
CORAM : MANGESH S. PATIL, J.
DATE : 06 APRIL 2022
PC :
Leave granted to correct the prayer clause.
2. This is the revision under section 115 of the Code of Civil
Procedure by the original plaintiff in a suit for eviction under section
16(1)(g) of the Maharashtra Rent Control Act, being aggrieved and
dis-satisfied by the dismissal of his suit as well as the appeal preferred
by him under section 34 of that Act whereby both the courts
concurrently held that the relationship of landlord and tenant did not
exist between the parties.
3. I have heard the learned advocate Mr. Sant.
4. The suit for eviction was filed with the averments that since
the petitioner was in need of money, he had borrowed some money
from the respondent and the possession of the suit premises was
handed over as a security. It was agreed that the money was to be
2 CRA / 47 / 2022
repaid without interest within 3 years. The transaction was evidenced
by a writing on a stamp paper. After repayment of loan, when he was
about to get the possession back, he was transferred to a different
place. Since there was home loan obtained by him and anyhow he
was due and payable of monthly installments for repayment of the
home loan, he allowed the respondent to continue to occupy the suit
premises and the latter started paying monthly installments in the loan
account in lieu of rent. The relationship of landlord and tenant,
therefore, came into being. After his retirement, he intended to occupy
the suit premises but in spite of his demand, the respondent refused to
vacate. Hence the suit.
5. The respondent admitted about having entered into
possession pursuant to an agreement which according to him was an
agreement of sale. He had parted with earnest money and occupied
the premises. Later on he started paying the balance amount of
consideration in installments by depositing an amount of Rs. 4000/- per
month with the petitioner's bank. He, therefore, flatly denied existence
of any relationship between the parties as that of landlord and tenant.
6. The trial court as also the lower appellate court have
recorded a concurrent finding that the respondent was in possession of
the suit property in part performance of the agreement to sell and no
relationship existed between them that of landlord and tenant and
dismissed the suit and the appeal.
3 CRA / 47 / 2022
7. The learned advocate Mr. Sant submits that both the
courts have recorded a perverse finding and reached an illegal
conclusion. There was no reason for the respondent to continue to
deposit periodical amount in the petitioner's bank that too after
repayment of the loan amount. That was indicative of the fact that
there was in existence relationship of landlord and tenant. Though the
courts below readily accepted the statement of the respondent on oath,
a similar statement of the petitioner was discarded for no reason.
The revision be admitted.
8. I have carefully considered the submissions and have
perused the judgments of the courts below.
9. Needless to state that this being a revision under section
115 of the Code of Civil Procedure, this court can step in only if the
observations and the conclusions by the courts below are perverse,
arbitrary or capricious or that they have exercised the jurisdiction not
vested in them or have refused to exercise it though it vested in them.
10. Bearing in mind the limitation on the powers of this court
while considering the prayer for undertaking a revision, as is mentioned
herein-above, both the courts below have recorded a concurrent
finding that the respondent is in possession pursuant to the agreement
of sale and not as a tenant and no relationship of landlord tenant
existed between the parties. In arriving at such a concurrent finding,
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they have taken into account the fact that the petitioner himself had
come with the case that initially the respondent was inducted in the
premises by executing an agreement of sale albeit it was his stand that
the agreement was not to be acted upon.
11. The fact remains that a writing in the nature of agreement
of sale was brought into existence while inducting the respondent into
the suit premises. Bearing in mind the fact that the parties were careful
enough to bring into existence some formal writing, one cannot
comprehend as to how and why they have decided not to act upon
agreement of sale and change the relationship between them as
landlord and tenant. No such similar writing was brought into
existence. A man of prudence who was careful enough to bring into
existence the agreement of sale though it was not to be acted upon
would have been equally prompt to create some kind of writing if the
respondent was subsequently to be considered as a tenant.
12. As has been rightly noted by the courts below, it was oath
against oath. Merely because respondent continued to deposit
installment in the appellant's account, they have taken a plausible view.
The payment of installments could have been towards the balance
amount of consideration. In this regard, it is further pertinent to note
that in spite of the appellant having come with a specific case of
existence of agreement which according to him was not to be acted
upon, he was bold enough to deny his signature thereon.
5 CRA / 47 / 2022
13. All these facts, circumstances and evidence has been
carefully considered by the courts below in reaching a conclusion
which by no stretch of imagination can be said to be either perverse or
arbitrary so that this court can re-appreciate it while exercising limited
jurisdiction.
14. The Revision is dismissed.
[ MANGESH S. PATIL ]
JUDGE
arp/
