Bombay High Court
Pundalik Dinkar Jagtap (Deceased) vs Prashant Ratnachandra Gandhi on 14 December, 2023
Author: Amit Borkar
Bench: Amit Borkar
2023:BHC-AS:37717
11-sa406-2023.doc
VRJ
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.406 OF 2023
VAIBHAV
RAMESH
JADHAV
Digitally signed by
Pundalik Dinkar Jagtap (Deceased)
VAIBHAV RAMESH
JADHAV
Date: 2023.12.15
11:28:11 +0530 Through His Legal Heirs ... Appellants
V/s.
Prashant Ratnachandra Gandhi & Anr. ... Respondents
Mr. Nikhil Wadikar with Mr. Niranjan Kandade
with Mr. Malhar Pawar with Ms. Sejal Jain
i/by Mr. Nandu Pawar for the appellant.
Mr. Vishwanath Talkute for the respondents.
CORAM : AMIT BORKAR, J.
DATED : DECEMBER 14, 2023
P.C.:
1. The appellants are original defendants in a suit for
possession filed by the respondents claiming defendants to be
tenant in the property. The suit property is described in paragraph
No.1 by getting details of boundaries. According to the plaintiffs,
initially suit property was owned by Virchand Shah. The plaintiffs
purchased it from legal representatives of Virchand Shah in 1994.
The defendants are tenant in the suit property. After purchase of
suit property in the year 1994, plaintiffs communicated said fact of
purchase to the defendants and called upon defendants to pay rent
at Rs.250/- per month. The defendants paid rent to the plaintiffs
till October 1999. According to the plaintiffs, thereafter defendants
paid enhanced rent at Rs.800/-. It is pleaded that since the
11-sa406-2023.doc
plaintiffs are in need of suit property, they filed suit for possession.
2. The appellants filed written statement and contested the
suit. According to the appellants, they were inducted as a tenant
by the earlier owner Virchand Shah. Under the mistake of law, that
plaintiffs are owner of the suit property they paid rent to the
plaintiffs. However, subsequently they realized that the plaintiffs
are not owner of the suit property and, therefore, they stopped
paying rent to the plaintiffs. According to them, plaintiffs have no
right to claim possession of suit property as the defendants was
inducted as tenant by the earlier owner.
3. The Trial Court decreed the suit. The Appellate Court
dismissed the appeal.
4. Learned advocate for the appellants submitted that the
plaintiffs failed to prove ownership over the suit property by
producing on record copy of sale deed. Since the suit is for
possession, it was obligatory on the plaintiffs to prove their
ownership over the suit property. According to them, the
defendants are entitled to dispute title of the plaintiffs as bar
under section 116 of the Indian Evidence Act, 1872 operates
against the person who inducted tenant in the suit property.
According to them, description of the suit property is improper.
5. On perusal of the impugned judgments delivered by the
Courts below, it appears that the plaintiffs filed suit against the
defendants in his capacity as landlord of the suit property.
Undisputedly, provisions of the Maharashtra Rent Control Act,
1999 do not apply to suit premises. Therefore, rights of the parties
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will be covered under the provisions of the Transfer of Property
Act, 1882.
6. From the averments in the plaint and written statement, the
fact of payment of rent by defendants to the plaintiffs from 1994 to
1999 and, thereafter, at enhanced rate is not in dispute. Once the
relationship of landlord and tenant is established by payment of
rent by the defendants to the assignee of original owners' right, the
tenant is precluded from challenging derivative title of the
landlord.
7. The Apex Court in the Case of Apollo Zipper India Limited
vs. W. Newman and Co. Ltd. reported in (2018) 6 SCC 744 in
paragraphs 41 and 42 held as under:
"41. In other words, the burden of proving the ownership in
an eviction suit is not the same like a title suit. (See Sheela v.
Firm Prahlad Rai Prem Prakash reported in (2002) 3 SCC
357, para 10 at SCC p.383 and also Boorugu Mahadev &
Sons v. Sirigiri Narasing Rao reported in (2016) 3 SCC 343,
para 18 at SCC p.349.)
42. Similarly, the law relating to derivative title to the
landlord and when the tenant challenges it during
subsistence of his tenancy in relation to the demised property
is also fairly well settled. Though by virtue of Section 116 of
the Evidence Act, the tenant is estopped from challenging the
title of his landlord, yet the tenant is entitled to challenge the
derivative title of an assignee of the original landlord of the
demised property in an action brought by the assignee
against the tenant for his eviction under the rent laws.
However, this right of a tenant is subject to one caveat that
the tenant has not attorned to the assignee. If the tenant
pays rent to the assignee or otherwise accepts the assignee's
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title over the demised property, then it results in creation of
the attornment which, in turn, deprives the tenant to
challenge the derivative title of the landlord. (See Bismillah
Be v. Majeed Shah (2017) 2 SCC 274, para 24."
8. In view of aforesaid preposition of law laid down by the
Apex Court, the defendant is precluded from disputing title of the
plaintiff as landlord of the suit property. The Courts below have
recorded finding of fact that the defendants have failed to prove
payment of rent for period 1994 to 1999 and, thereafter, at
enhanced rate till 2003 was under mistake of fact and law. The
said findings are findings of fact which are based on material on
record. Considering the material findings of fact recorded by the
Courts below, it cannot be termed as perverse. Therefore, there is
no substantial question of law involved.
9. The second appeal is dismissed. No costs.
(AMIT BORKAR, J.)
