Ved Prakash Jagga (Deleted) Thr. ... vs M/S. Abdul Kader Ali Mohamed And Co
2022 Latest Caselaw 12500 Bom

                                                          19-CRA 529.2022 with IA 20109.2022.doc


K.S. Jadhav
             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CIVIL APPELLATE JURISDICTION

                CIVIL REVISION APPLICATION NO. 529 OF 2022
                                              WITH
                   INTERIM APPLICATION NO. 20109 OF 2022

    Ved Prakash Jagga (Deleted)                                           ...Appellants
    Through Rajender Ved Prakash Jagga & Ors.,

            Versus

    M/s Abdul Kader Ali Mohamed & Co.                                     ...Respondent

                                             ----------
    Mr. Mayur Khandeparkar a/w Mr. Sajjad H. Patel, Advocate for
    Appellants.
    Mr. A.J. Rizvi, Advocate for Respondent.
                                             ----------
                                      CORAM : R.I. CHAGLA, J.

                                      DATE       : 28th NOVEMBER, 2022.
    ORDER :

1. Heard the learned Counsel appearing for the parties.

2. By this Civil Revision Application, the Applicant is seeking

quashing and setting aside of the impugned Order and

Judgments dated 5th January, 2017 and 12th September, 2022

passed by the Trial Court and the Appellate Bench of Small

19-CRA 529.2022 with IA 20109.2022.doc

Causes Court at Mumbai in Appeal No.86 of 2017 in T.E. Suit

No.187 of 2008, granting the decree in favour of the

Respondent.

3. The Trial Court of Small Causes had framed the issue

raised by the Appellants/Original Defendants viz. " Whether the

Plaintiff proves the landlord tenant relationship in between the

Plaintiff and Defendants?" This was answered in affirmative. In

Paragraph 9 whilst deciding this issue, the Trial Court has

considered the case of the Respondent/Original Plaintiff that on

the basis of Agreement of Lease dated 31st January, 1979

(Exhibit 30), the Original Plaintiff had acquired the suit premises

alongwith other plots from the previous landlords on Lease for a

period of 98 years. On the other hand, the Defendants have

denied that the Plaintiffs were transferred any rights in respect

of the suit premises.

4. The Trial court upon considering the rival cases found in

favour of the Plaintiff and decreed the suit for eviction. In the

impugned judgment and order of the Appellate Court of Small

19-CRA 529.2022 with IA 20109.2022.doc

Causes the aforementioned issue was also framed and in

Paragraph 12 thereof whilst determining this issue, the Appellate

Bench observed that there is an admission that Agreement

(Exhibit 30) is a Lease Agreement of 98 years and given for

development as well as for eviction of tenants. It is further

observed in Paragraph 16 of the said impugned judgment and

order upon considering the judgment relied upon by the

Advocates of the Respondent viz. Dr. Ambikaprasad Vs. Md.

Alam & Anr., 2015 (4) ALL MR 408 (S.C.) that since the

attornment by the tenant is not required, a Notice under Section

106 in terms of the old terms of lease by the transferor

landlord would be proper and so also the suit for ejectment.

The Appellate Court goes on to hold in Paragraph 17 that as per

Agreement (Exhibit 30) and Letter of Attornment (Exhibit 28),

the original landlords had given the suit premises and other

plots on lease to the Plaintiff for the period of 98 years for the

purpose of development. The Advocate for the Plaintiff had

given Notice dated 14th April, 1984 to the original Defendant

Vedprakash for termination of tenancy on the ground of

19-CRA 529.2022 with IA 20109.2022.doc

additions and alterations on the suit premises. This was

responded to by Vedprakash denying additions and alterations

and title of the Plaintiff. Thus, the Original Respondent

Vedprakash was made aware about the Agreement of Lease dated

31st January, 1979 and Letter of Attornment dated 1st August,

1980 executed by the landlords thereby creating rights and

interest in the suit premises in favour of the Plaintiff. The

original landlords have not accepted rent from the Original

Defendant. The Appellate Court on the basis of the facts and

evidence goes on to hold that relationship of landlord and tenant

between the Plaintiff and Defendant in respect of suit premises is

established on the record. However, in Paragraph 26 of the

impugned judgment and order, the Appellate Court has held that

in view of the facts and evidence already discussed, documents

sought to be relied upon by the Appellants are not relevant for

deciding the controversy in the suit. Thus, it is not clear,

whether the Appellate Court in fact considered that the

Agreement of Lease dated 31st January, 1979 was not a

registered document for transfer of the lease to the original

19-CRA 529.2022 with IA 20109.2022.doc

Plaintiff and / or whether the Appellante Court had considered

whether the Letter or Attornment dated 1st August, 1980

executed by the landlords creating rights and interest in the suit

premises in favour of the original Plaintiff was not served on the

Defendants.

5. Under Section 109 of the Transfer of Property Act, 1882,

the rights of lessor's transferee is provided as under :

"109. Rights of lessor's transferee - If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him:

Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee.

The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the

19-CRA 529.2022 with IA 20109.2022.doc

property leased."

In considering whether there is a transfer of rights of the

lessor to the transferee, it is necessary to consider registration of

the document of transfer. Effect of non-registration documents

required to be registered is provided under Section 49 of the

Registration Act, 1908 as follows :

"49. Effect of non-registration of documents required to be registered.-- No document required by section 17 1[or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall--

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:"

Thus, in order for the document to be a transfer of the

lessor's rights in the suit property, it is mandatory for the

document to be registered. This is clear from Section 49 as no

document required by Section 17 to be registered shall affect any

immovable property comprised therein, unless it has been

registered. Thus, it was necessary for the Trial Court as well as

the Appellate Court to consider the fact that the Agreement of

19-CRA 529.2022 with IA 20109.2022.doc

Lease dated 31st January, 1979 which formed the basis of

transfer of the original lessor's rights to the Original Plaintiff in

the suit premises was not a registered document. This is apart

from the fact that the said Agreement contemplated that a

irrevocable Power of Attorney shall be executed in favour of

lessee simultaneously with the execution of Agreement to enable

the lessee to carry out development work and sell the plots and

premises and to represent the lessor before the Government and

Municipal Authorities as the case may be.

6. Further, the Power of Attorney though asked to be

produced by the original Plaintiff during his cross examination

was not produced. Ultimately the Applicant/Original Defendant

produced the Power of Attorney before the Appellate Court. In

the executed Power of Attorney, it is mentioned in the recitals

that "We have given a license to the said M/s Abdul Kadar Ali

Mohamed & Co. to enter upon the said land hereditament and

premises for the purposes of developing the said property and

for starting the work of construction ." There is no mention of

19-CRA 529.2022 with IA 20109.2022.doc

the executed Power of Attorney that authority had been given to

be Original Plaintiff to collect rent.

7. In my prima facie view, the Trial Court as well as the

Appellate Court have failed to give proper appreciation to the

documents on record in considering whether the Plaintiff proved

landlord - tenant relationship. Further, the Appellate Bench was

of the view that the documents sought to be produced by the

Appellants in Appeal are not required by this Court to enable it

to pronounce judgment or for any other substance cause as

provided in Order 41, Rule 27 (1)(b) of the Civil Procedure

Code.

8. The decision relied upon on behalf of the original

Plaintiff / Respondent herein viz. Dr. Ambikaprasad Vs. Md.

Alam & Anr. (supra) is not applicable in the present case,

considering that in my prima facie view, there has been no

transfer of the lessor's right in favour of the transferee. It was

held in the above decision that since Letter of Attornment filed

by the tenant is not required as attornment by the tenant is not

19-CRA 529.2022 with IA 20109.2022.doc

necessary to confirm valid transfer of the lessor's right in favour

of the transferee. This pre-supposes that there has been a valid

transfer of the lessor's rights. It has accordingly been held in

the said decision that Notice under Section 106 in terms of the

old terms of lease by the transferor landlord would be proper

and so also the suit for ejectment. Thus, in my prima facie

view, considering that both the Trial Court and Appellate Bench

of Small Causes have decided the issue as to whether the

original Plaintiff was in fact a landlord for collection of rent

from the Defendant's without proper appreciation of the

documents on record and thus rendering a perverse finding, the

Civil Revision Application requires admission. Hence, the

following order :

           i)     Heard. Admit.


           ii)    Call for the Record and Proceeding.

iii) The learned counsel appearing for the Respondent /

Original Plaintiff waives service.

19-CRA 529.2022 with IA 20109.2022.doc

iv) The hearing of the Civil Revision Application is

expedited.

v) The implementation and / or execution of the

impugned Judgment and Decree dated 5 th January, 2017

and 12th September, 2022 of the Trial Court and Appellate

Bench of Small Causes at Mumbai in Appeal No.86 of

2017 in T.E. Suit No.187 of 2008, is stayed.

vi) Interim Application does not survive and is disposed

of.

[R.I. CHAGLA, J.]