Bombay High Court
Shri.Akbar Babubhai Shaikh And Anr vs Shri.Abdulgani Mohmadkhan (Since ... on 3 October, 2024
2024:BHC-AS:39008
Neeta Sawant WP-1694-1996-FC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 1694 OF 1996
Shri. Akbar Babubhai Shaikh and another } ....Petitioner
(Orig. Defendants)
: Versus :
Shri. Abdulgani Mohmadkhan since deceased
through Legal Heirs and others } ....Respondent
(Orig. Plaintiffs)
__________
Mr. Anil Y. Sakhare, Senior Advocate with Ms. Anita A. Agarwal and
Ms. Ashwini B. Jadhav for the Petitioner.
Mr. Rahul Kadam, a/w. Mr. Shardul R. Diwan, for Respondent No.1.
__________
CORAM : SANDEEP V. MARNE, J.
Judgment Reserved on : 20 September 2024.
Judgment Pronounced on : 3 October 2024.
JUDGMENT :
1) The petition is filed challenging the Judgment and Decree
dated 23 November 1995 passed by the 5th Additional District Judge, Pune
by which the Appeal filed by Respondents/Plaintiffs has been allowed and
the decree of the Trial Court dismissing Civil Suit No. 1661 of 1985 has been
set aside. The Appellate Court has decreed Civil Suit No. 1661 of 1985 and
has directed Petitioners/Defendants to handover vacant possession of the
suit premises to the Plaintiffs.
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2) Vacant land admeasuring 15 sq. ft out of CTS No. 275, Guruwar
Peth, Pune are the 'suit premises'. The suit premises were owned by
Plaintiffs' mother Lalvi Mohmad Khan, who passed away on 20 November
1984 and Plaintiffs are her sole legal heirs. The suit premises were let out to
Defendant No 1-Akbar Babubhai Shaikh vide Rent Note dated 4 June 1969.
Defendant No.1 is the brother of Defendant No.2. It is the case of
Defendants that the suit premises were taken on rent by both the brothers
for use of the family, which is a reason why Defendant No.2 signed rent
note as a witness.
3) Plaintiffs filed Civil Suit No. 1661 of 1985 in the Court of Small
Causes seeking recovery of possession of the suit premises on the grounds
of default in payment of rent, non-use and illegal transfer in favour of
Defendant No. 2. The suit was resisted by Defendants by filing a common
Written Statement contending that the suit premises were taken on rent
for common use of both the Defendants for joint family business.
Defendants also denied the grounds of default in payment of rent, non-user
and bonafide need and illegal transfer. Both the sides led evidence in
support of their respective claims. The Trial Court proceeded to dismiss the
suit after considering the pleadings, documentary and oral evidence vide
decree dated 6 March 1990. The Small Causes Court rejected the grounds of
default in payment of rent and bonafide need of the Plaintiff. So far as the
ground of non-user by Defendant No.1 is concerned, the same was linked to
the allegation of illegal transfer of the suit premises in favour of Defendant
No.2. The Small Causes Court held that Defendant No.2 was a member of
joint family and was entitled to carry on business in the suit premises. The
Small Causes Court therefore rejected the allegation of illegal transfer of
tenancy.
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4) Plaintiffs filed Civil Appeal No. 441 of 1990 in the Court of
District Judge, Pune challenging the decree of the Small Causes Court. The
Appellate Court has reversed the Trial Court's decree by accepting the
ground of illegal transfer of tenancy in favour of Defendant No.2 and non-
user by Defendant No.1. The ground of default in payment of rent and
bonafide requirement of Plaintiffs are however rejected by the Appellate
Court. The Appellate Court has accordingly decreed the suit directing
Defendants/Petitioners to handover possession of the suit premises to the
Plaintiffs. The decree of the Appellate Court is under challenge in the
present petition.
5) The petition came to be admitted by this Court by an order dated 6
May 1997 by staying the decree of the Appellate Court on usual terms.
6) Mr. Sakhare, the learned senior advocate appearing for
Petitioners would submit that the Appellate Court has erred in reversing
well-reasoned order of the Small Causes Court dismissing the suit. That the
ground of non-user and illegal transfer of tenancy in favour of Defendant
No.2 has been erroneously accepted by the Appellate Court. That the suit
premises were not let out to Defendant No.1 for his exclusive use. That the
Plaintiffs were always aware that the suit premises were let out for family
business of both Defendants. That there is sufficient evidence on record to
indicate that the entire negotiations had taken place with both the
Defendants at the time of issuance of rent receipt, which is a reason why
Defendant No.2 was present at the time of execution of the rent receipt and
signed as a witness. That the Shop Act license in respect of the suit
premises is issued in the joint names of both the Defendants. That both the
Defendants were initially conducting joint business in the names of AMCO,
Tiger Rolling Shutters and Luxor Painting. That sufficient evidence was
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produced on record to prove that the suit premises were used by both the
brothers jointly since inception.
7) Mr. Sakhare would further submit that during pendency of
proceedings, Defendant No.2 purchased the share of Plaintiff No.2 and thus
became landlord in respect of the suit premises and that this vital aspect
has been erroneously glossed over by the Appellate Court. He would submit
that compromise deed dated 7 February 1983 executed between the two
Defendants also clearly indicates that the suit premises were jointly used
by both the brothers for their business purposes. Mr. Sakhare would
therefore submit that the Appellate Court has erroneously decreed the suit
ignoring the vital aspect of joint conduct of business by both the brothers
in the suit premises since inception. He would pray for setting aside the
decree of the Appellate Court.
8) The petition is opposed by Mr. Kadam, the learned counsel
appearing for the Respondents. He would submit that the rent note has
been executed in singular name of the First Defendant. That there is
nothing on record to indicate that the suit premises were taken up for use
of joint family partnership or business. That if there was any intention of
the parties to create tenancy for the joint family, the same ought to have
been specifically mentioned in the rent note. That the factum of Defendant
No.2 signing as a witness to the rent note falsifies the theory of joint
tenancy. That Defendant No.2 was major at the time of the execution of the
rent note and accepted tenancy for his own individual use of the premises.
He would take me through the cross-examination to demonstrate that the
rent note was prepared as per the negotiations between the parties. So far
as the compromise deed arising out of filing of Special Civil Suit between
the Defendants is concerned, Mr. Kadam would submit that the contents of
the Compromise Deed are not binding on the landlords in any manner.
That the compromise deed is nothing but a mere contract with seal of the
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Court, which does not bind the third parties. Alternatively, Mr. Kadam
would submit that the compromise deed would infact estop the Petitioners
from wriggling out of clear terms therein, by which the tenanted premises
are sought to be transferred in his name. That the license at Exhibit-15/3 is
in the name of the First Defendant alone. That Defendant No.1 shied away
from participating in the proceedings and did not enter the witness box. He
did not lead evidence that the tenancy was in the joint names. Therefore,
the evidence given by Defendant No.2, whose name is not reflected in the
rent note, is meaningless. He would submit that the Decree passed by the
Appellate Court does not suffer from any palpable error. He would rely
upon the judgment of the Apex Court in Mohammedkasam Haji
Gulambhai Versus. Bakerali Fatehali (Dead) by LRs. 1 in support of his
contention that the First Defendant had completely left control over the
business after the compromise deed and therefore illegal transfer of
tenancy is clearly established. He would pray for dismissal of the petition.
9) Rival contentions of the parties now fall for my consideration.
10) Though the suit was initially filed on four grounds of default
in payment of rent, bonafide need of Plaintiffs, non-user by Defendant No.1
and illegal subletting, the Trial Court had rejected all the four grounds and
had dismissed the suit. The Appellate Court has concurrently rejected the
grounds of default in payment of rent and bonafide requirement of
Plaintiffs. Ultimately, the grounds of non-user of premises by Defendant
No.1 and unauthorised subletting in favour of Defendant No.2 are accepted
by the Appellate Court. Here again, both the accepted grounds are
interconnected. The ground of non-user is accepted essentially because the
suit premises are found to be used by Defendant no. 2 exclusively on
account of transfer of tenancy rights, which has led to acceptance of
(1998) 7 SCC 608
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ground on non-user by Defendant No. 1. Thus, both the grounds of non-
user and unauthorised subletting are interconnected.
11) There is no dispute about the position that the initial rent
agreement is executed in the sole name of Defendant No.1. Defendant No.1
had signed the rent agreement as a witness. Since the Rent agreement is in
the name of Defendant No.1, all the rent receipts are executed in the name
of Defendant No.1 alone. It appears that the premises as they were initially
let out, were vacant land and a shed later is constructed thereon for
carrying out business. Perusal of the records and proceedings would
indicate that permission of Municipal Corporation was secured under the
provisions of Sections 253 and 254 of the Maharashtra Municipal
Corporations Act, 1949 for erection of shed. The said permission is issued in
the name of 'A.B. Shaikh' (Defendant No.1) on 4 August 1969. Thus, in
addition to rent note as well as rent receipts being issued in the sole name
of Defendant No.1, even the permission for carrying out construction was
issued in the name of Defendant No.1 alone. In that view of the matter, it is
difficult to accept the defence of Defendant No.1 that the suit premises
were taken for joint use of the family by both the Defendants. In fact, if
there was any intention for doing so, the same ought to have been
specifically mentioned in the rent note. The evidence on record indicates
that there is a specific admission by Defendant No.2 that the rent note was
prepared as per the negotiations between the parties. Defendant No.2 has
not specified any particular disability/ prohibition for including his name
in the Rent Note. The contention of Defendant No.2 that Defendant No.1
was a minor at the time of execution of the rent note, also cannot be
accepted in view of reflection of his age as 22 years on the Rent Note
coupled with his admission in the cross-examination that his age was
reflected in the rent note as informed by Defendant No.2.
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12) Mr. Sakhare has strenuously relied upon Shop Act license
issued in the joint names of both the Defendants. As a matter of fact, what
is produced on record is Registration Certificate of the firm 'Tiger Steel'
issued under the provisions of Mumbai Shops and Establishments Act, 1949.
The firm is registered on 27 November 1969. Mere registration of the firm
'Tiger Steel' by both the Defendants did not mean that Defendant No.2 was
permitted to occupy the premises in any manner. Therefore, it cannot be
inferred on the basis of the said Registration Certificate that Defendant
No.2 was a joint tenant in respect of the suit premises.
13) It appears that Special Civil Suit No. 209/1981 was filed by
Defendant No.1 against Defendant No.2 in respect of their business
activities. A compromise purshis was filed in the said suit on 7 February
1983 by which the partnership firms named 'AMCO Engineering Works' and
'Tiger Steel' were dissolved. Though Mr. Sakhare has relied upon some of
the contents of the said compromise purshis, in my view, the contents
thereof cannot bind the landlord in any manner. Mr. Kadam has rightly
relied upon judgment of the Apex Court in Pushpa Devi Bhagat (Dead)
Through LR. Sadhna Rai (Smt) Versus. Rajinder Singh and others 2 in
support of his contention that a consent decree is nothing but agreement
between the parties with the seal of the Court which does not bind
outsiders.
14) The compromise purshis recorded that the suit premises were in the
exclusive name of Defendant No.1 but the same was taken on rent jointly by
both the Defendants and that the same was in exclusive possession of
Defendant No.1. It would be apposite to reproduce the relevant statement
in the purshis which reads thus :
(2006) 5 SCC 566
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(५) घर नंबर २७५ गुरुवार पेठ मधीळ लागेची भाडे पावती सध्या वादीच्या नावाने आहे ; परंतु
सदर जागाही वस्तुत वादी व प्रतितवादी या दोघांच्या वापरासाठी भाड्याने घेतलेली आहे व ती
प्रतितवादींच्याच ताब्यात आहे. सदर जागेचे भाडे ४/१२/१९८२ पय.त घरमालकास दिदलेले
आहे. व त्याच्या पावत्या वादीचे नावे घर मालकांनी दिदलेल्या आहेत. परंतु सदर जागेवर वादी
व प्रतितवादी यांचा भाडेकरू म्हणून सारकाच हक्क व दिहत संबंध होता परंतु या तडजोडीने वादी
यांनी सदर जागेवरील आपला भाडेकरू म्हणून असलेला हक्क ओडू न दिदलेला आहे व यापुढे
सदर जागा संपूण;पणे प्रतितवादी यांच्या कडे भाड्याने राहवयाची आहे . त्यासाठी घर
मालकांकडू न प्रतितवादीच्या नावाने पावती करण्यासाठी वादीने जरूर ती लेखी संमती घर
मालकांचा नावाने लिलहून प्रतितवादीकडे द्यावयाची आहे, व सदर भाडे पावती बदलण्यासाठी
योग्य ती कायदेशीर मदत करावयाची आहे.
15) That it was specifically mentioned in the compromise purshis
that the suit premises were in possession of Defendant No. 2. In fact, by
stating so, Defendant No. 2 has admitted the position that as on the date of
execution of the compromises purshis, he was exclusively occupying the
suit premises. By that compromise purshis, Defendant No.1 'released' his
tenancy rights in respect of the suit premises and Defendant No.2 was to
remain as a tenant. Defendant No.1 agreed to issue necessary consent for
'transfer of rent receipt' in the name of Defendant No.2. Thus, the
compromise purshis leaves no manner of doubt that this is a clear case of
unauthorised subletting by Defendant No.1 without the consent of the
landlord in favour of Defendant No. 2. The compromise purshis itself admits
exclusive possession of Defendant No.2 as well as arrangement for getting
the rent receipt 'transferred' from the landlord with consent of Defendant
No.1. Thus, both the Defendants unilaterally agreed that the tenancy rights
would stand transferred in favour of Defendant No.2 without landlord
being party to such agreement.
16) There is another angle from which the arrangement between
the Defendants could be viewed. If Defendant No.2 was already a tenant in
respect of the suit premises, there was no necessity for 'transfer' of tenancy
rights as envisaged in the compromise purshis. This compromise purshis
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proceeds on a footing that the tenancy was in the exclusive name of
Defendant No.1 and that the same required transfer with the consent of the
landlord. Considering the above material on record, it is conclusively
proved that Defendant No.1 has unauthorisedly sublet the suit premises in
favour of Defendant No2. The admission in the compromise purshis that
Defendant No.2 was exclusively possessing the suit premises clearly
indicated that Defendant No.2 was not using the same, to the exclusion of
first Defendant. Thus, the whole theory of both brothers jointly using the
premises gets disproved by the contents of the compromise purshis. Both
the grounds of non-user as well as subletting are thus entirely established
in the present case.
17) In my view, the Appellate Court has rightly decreed the suit by
repealing the defence of execution of joint tenancy between Defendant
Nos.1 and 2. What is most striking is that though the present petition is
shown to have been filed in the names of both the Defendants, the same is
verified by Defendant No.2 alone. Furthermore, Defendant No. 1, who is the
tenant, never stepped into the witness box to depose that the tenancy was
jointly created in favour of both the brothers. Defendant No.2 is an outsider
to the entire arrangement and his evidence was insufficient for proving
that the tenancy was in the joint names.
18) After considering the overall conspectus of the case, I do not
find any valid reason to interfere in the decree passed by the Appellate
Court. Writ Petition accordingly fails and is dismissed. Rule shall is
discharged. Considering facts of the case, Petitioners are granted time of
three months to vacate the suit premises.
Digitally
signed by
NEETA [SANDEEP V. MARNE, J.]
NEETA SHAILESH
SHAILESH SAWANT
SAWANT Date:
2024.10.03
17:37:44
+0530
3 October 2024
