Bombay High Court
Mr. Sudesh Jayram Raut vs Mr. Prabhakar Vishnu Patil on 2 May, 2025
Digitally signed
by IRESH
IRESH MASHAL
2025:BHC-AS:20018
MASHAL Date:
2025.05.02
20:54:37 +0530
901.168.12 sa.docx
Iresh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 168 OF 2012
Mr. Sudesh Jayram Raut,
Age 41 years Occ. Business,
Resident of Gavaliwada, Ratnagiri ....Appellant
Vs.
1. Mr. Prabhakar Vishnu Patil
Age 54 years, Occ. Repairing Garage
Resident of Zadagaon, Ratnagiri
2. Smt. Indubai Atmaram Devalekar
Deceased by her heirs as under:
2A. Smt. Mandakini Khatu
(Abated vide Reg. Judl II order
dt. 9/7/2015)
2B. Sou. Bharati Bhalchandra Dali
Age about 62 years, Occ. Household,
R/o Near Milk Center, Near Sati,
Varchi Ali, Kherdi, Tal. Chiplun,
District Ratnagiri
2C Sou. Vandana Madhukar Gangan
Age about 60 years, Occ. Household
r/o Nevare, Bajarpeth, Tal. Ratnagiri
3. Mr. Umesh Shrikant Shetye
Age about 44 years, Occ. Business
r/o Teli Ali. Ratnagiri.
4. Mr. Rajan Ramkrushna Shetye,
1/57
::: Uploaded on - 02/05/2025 ::: Downloaded on - 03/05/2025 10:45:38 :::
901.168.12 sa.docx
Age about 52 years, Occ. Business
r/o Shivaji Nagar, Ratnagiri
5. Mr. Rajan Prabhakar Salvi
Age about 43 years, Occ. Business
r/o 1274, Teli Ali, Ratnagiri
6. Bhikubai Sitaram Devalekar
(Deleted) ....Respondents
WITH
CIVIL REVISION APPLICATION NO. 507 OF 2008
Shri Prabhakar Vishnu Patil
Age 51 years, Occ. Business,
Residing at Zadgaon, Dist. Ratnagiri ....Applicant
Vs.
1. Sudesh Jayaram Raut
Occ. Business, Residing at
House No. 1166, Gawali Pada,
District Ragnagiri
2. Prakash Jayaram Raut
Age 49 years, Occupation Auto
Electricians, Residing at
Karvanchi Vadi, Ratnagiri ....Respondents
Mr. Malhar Bageshwar i/b Mr. Sanjiv Sawant for appellant in SA
168/2012 and for respondent in CRA 507 of 2008
Mr. Sagar Joshi for respondent in SA 168/2012 and for applicant in
CRA 507/2008
CORAM : GAURI GODSE J
RESERVED ON : 19th DECEMBER 2024
PRONOUNCED ON : 2nd MAY 2025
2/57
::: Uploaded on - 02/05/2025 ::: Downloaded on - 03/05/2025 10:45:38 :::
901.168.12 sa.docx
JUDGMENT:
BASIC FACTS:
1. The second appeal is preferred by the plaintiff to challenge the
judgment and decree passed by the First Appellate Court, reversing
the Trial Court's decree and dismissing the appellant's suit. The suit
was filed regarding a land and a shop structure thereon, for specific
performance and a declaration against defendant nos. 1 and 2 as
original owners and against defendant no. 3, in whose favour the
owners had executed a sale deed. Defendant No. 1 died pending the
suit. Thereafter, defendant no. 2 executed a sale deed in favour of the
plaintiff for the shop structure. The suit was then amended, and the
plaintiff prayed for directing the defendant no. 3 to execute a sale deed
in favour of the plaintiff for the land beneath the shop; however, the
plaintiff continued with the prayer for a declaration that the sale deed in
favour of defendant no. 3 is void to the extent of the land beneath the
suit shop.
2. Defendant nos. 1 and 2 are the original owners, and defendant
no. 3 is the purchaser from defendant nos. 1 and 2. The appellant
901.168.12 sa.docx
claims that he is entitled to specific performance of an agreement
executed by defendant nos. 1 and 2. However, in view of the sale deed
executed in favour of defendant no. 3, the decree for specific
performance was passed by the trial Court against defendant no. 3, by
declaring the sale deed in his favour as null and void. The trial Court's
decree was challenged by the defendant no. 3 in the first appeal. The
first appeal is allowed, and the suit is dismissed. Hence, the second
appeal by the plaintiff.
3. The landed property and the structures were originally owned by
two sisters, Bhikubai Devalekar and Indubai Devalekar (hereinafter
referred to as the original owners). The original owners were joined to
the suit as defendant nos. 1 and 2. Sudesh Raut, i.e., the plaintiff, was
the tenant of one of the shops (the plaintiff is hereinafter referred to as
'Raut'). Defendant no. 3, Prabhakar Vishnu Patil, was the tenant in
another structure (hereinafter referred to as 'Prabhakar'). Thus, the
present dispute is between the two tenants of the original owners.
4. Based on a sale deed executed by the original owners in favour
of Prabhakar, he filed a suit under the Rent Act for the eviction of Raut
from the shop structure. Raut challenged Prabhakar's title to the shop
901.168.12 sa.docx
structure in the eviction suit. The eviction suit filed by Prabhakar was
dismissed, and he was held entitled to recover arrears of rent.
Prabhakar, therefore, filed an appeal challenging the rejection of his
prayer for eviction. Raut filed a separate appeal challenging the decree
for payment of arrears of rent. By a common judgment, Prabhakar's
appeal was dismissed, and Raut's appeal was allowed, setting aside
the decree for payment of arrears of rent. Hence, Prabhakar filed the
Civil Revision Application No. 507 of 2008. The revision application is
admitted and directed to be heard along with the second appeal. By
way of an administrative order, the revision and the second appeal
were directed to be listed before the Court, taking up the second
appeals. Hence, the second appeal and the civil revision application
are heard and decided by this common judgment.
5. The second appeal is admitted by order dated 6 th December
2013, on the following substantial questions of law:
"A. Whether the Courts below can ignore the issue of
ownership which has been decided in the proceedings
bearing R.C.S.No.168 of 1997 and therefore the
decision on the said issue in the Civil Appeal No.52 of
901.168.12 sa.docx
2009 will be hit by principle of Resjudicata as provided
under Section 11 of C.P.C. 1908.
B. Whether the courts below, can discard the specific
finding given in the Regular Civil Appeal No.88 of 2004
that, the Respondent No.1 has not established his title
and status as a Owner/Landlord of the Appellant herein.
C. Whether the court below can ignore thereby not
considering the findings given in proceedings in R.C.S.
No.167 of 1997 and Civil Appeal No.88 of 2004 and
further the findings given in R.C.S. No.322 of 2000 and
Civil Appeal No.1 of 2006."
SUBMISSIONS ON BEHALF OF PRABHAKAR:
6. The submissions made by the learned counsel for
Prabhakar are summarised as under:
a) The suit for eviction was filed on the grounds of default in
paying rent and subletting. Out of the shop Galas
constructed by the original owners, one shop was
occupied by Raut as a tenant of the original owners. By a
901.168.12 sa.docx
registered sale deed dated 23rd October 1996, the original
owners transferred the land and the structures, including
Raut's shop, to Prabhakar. Originally, the land was jointly
owned by the owners, i.e. Devalekar sisters. The shop
occupied by Raut came into the share of one of the
sisters, Bhikubai. However, in the revenue record,
Indubai's name was also entered; hence, even she signed
the sale deed in favour of Prabhakar.
b) In November 1999, Bhikubai died. On 20 th March 2001,
Indubai executed a sale deed in favour of Raut regarding
his shop. Based on the sale deed regarding the entire
land and the structures, Prabhakar filed a suit for eviction
and recovery of arrears of rent from Raut. The rent suit
was partly decreed accepting Prabhakar's title; however,
the appeal court held that Raut is the owner of the suit
shop. Based on the sale deed in favour of Raut, the rent
court held that Prabhakar had no title to the suit shop of
Raut and thus, the rent suit for eviction and recovery of
arrears of rent filed by Prabhakar was dismissed.
901.168.12 sa.docx
c) Raut had instituted a suit for specific performance against
the original owners and Prabhakar. The trial court partly
decreed the rent suit on 8 th July 2004. Thereafter, on 31 st
December 2008, the suit for specific performance and
declaration filed by Raut was decreed. The rent appeals
were decided on 25th April 2008. Thereafter, on 2nd
September 2011, the appeal preferred by Prabhakar
against the decree for declaration and specific
performance in the suit of Raut was allowed.
d) The document of title in favour of Prabhakar is prior in
time and rightly accepted by the Rent court, would,
therefore, preclude the Civil Court from recording any
contrary findings in the suit filed by Raut. Thus, the
findings recorded by the rent court based on the evidence
on record would, therefore, be binding in the subsequent
suit.
e) Thus, in the revision application, Prabhakar claims
eviction of Raut on the ground that he is the owner of the
land and the suit shop of Raut and seeks eviction on the
901.168.12 sa.docx
ground that Raut has sublet the suit property and is in
arrears of rent.
f) The findings recorded on Prabhakar's ownership in the
rent suit were binding on the Civil Court deciding the suit
for declaration and specific performance filed by Raut.
Therefore, if Prabhakar succeeds in proving in the
revision application that the findings recorded in the rent
appeals are illegal and perverse regarding Prabhakar's
title, Raut would not be entitled to seek a decree of
declaration and specific performance.
g) The original owners in the written statement supported
Prabhakar's title. Initially, Raut prayed for the specific
performance of his shop and the land beneath it in view of
the agreement executed by Bhikubai. Subsequently, by
way of amendment, Raut prayed for a declaration and
cancellation of the sale deed in favour of Prabhakar to the
extent of the land beneath his shop. Raut objected to the
sale deed in favour of Prabhakar; thus, both the Courts
erred in granting specific performance in favour of Raut,
directing Prabhakar to execute the sale deed. Therefore, if
901.168.12 sa.docx
Raut challenged Prabhakar's title, he would not be
entitled to seek any specific performance from Prabhakar.
h) The sale deed in favour of Prabhakar is prior in time.
Hence, the original owners had no right, title or interest to
execute any agreement or sale deed in favour of Raut.
The sale deed in favour of Prabhakar is dated 23 rd
October 1996. Though Raut claims title to the suit shop
based on the document dated 20 th March 2001, the said
document is executed only by Indubai. The suit shop
occupied by Raut was allotted to the share of Bhikubai.
Therefore, the agreement/sale deed executed by Indubai
would not confer any title on Raut. Even if it is held that
Indubai had any right in the suit shop, she had also
signed the sale deed in favour of Prabhakar. Hence,
Indubai had no right to execute any document in favour of
Raut. Thus, the document relied upon by Raut, executed
by Indubai, would not confer any title to Raut.
i) The document dated 20th March 2001, signed by Indubai,
though, was relied upon as the document of title by Raut;
he filed the suit for specific performance of the contract
901.168.12 sa.docx
from the original owners as well as Prabhakar. Thus, Raut
admitted Prabhakar's title and sought specific
performance. However, at the same time, he sought the
declaration and cancellation of the sale deed in favour of
Prabhakar. Hence, there was no question of granting
specific performance to Raut.
j) The suit for specific performance was decreed on 31 st
December 2008. However, the rent suit filed by Prabhakar
in 1997 was decreed on 8 th July 2004, which is much prior
to the date of filing of the suit by Raut. Thus, the findings
recorded in the rent suit would operate as res judicata in
Raut's suit. Hence, the Civil Court could not have
recorded contrary findings in the subsequent suit filed by
Raut. He therefore submits that the questions of law
framed in the second appeal must be answered in favour
of Prabhakar.
k) With reference to the identification of the property, learned
counsel for Prabhakar relied upon the description in the
sale deed executed in favour of Prabhakar as well as
901.168.12 sa.docx
Raut and contended that the shop occupied by Raut was
the subject matter of the sale deed in favour of Prabhakar.
Hence, based on a subsequent document, Raut was not
entitled to challenge Prabhakar's title. Admittedly,
defendant no. 2 in the rent suit was occupying Raut's
rented shop. Thus, Prabhakar was entitled to a decree on
the ground of subletting.
l) Once Prabhakar's title is accepted based on the
registered sale deed, he is also entitled to seek recovery
of arrears of rent from Raut. Admittedly, Raut did not pay
the rent, and he challenged Prabhakar's title and thus
objected to the decree on the grounds of denying the title.
He, thus, submitted that Prabhakar would be entitled to a
decree of eviction on the grounds of subletting and
default.
m) To support his submissions, learned counsel for
Prabhakar relied upon the admissions given by Raut that
his rented shop was occupied by defendant no. 2.
Thus, there was a clear ground of subletting; thus, the
901.168.12 sa.docx
eviction suit is erroneously dismissed on the ground of
disbelieving Prabhakar's title.
n) To support his submissions on the findings in the rent suit
being binding upon the Civil Court in the suit filed by Raut,
learned counsel for Prabhakar relied upon the decision of
the Hon'ble Apex Court in the case of Mohd. Nooman and
Others Vs. Mohd. Jabed Alam and Ors 1 and the decision
of this court in the case of Narayan Sadashiv Bhalerao
and anr Vs. Navnitdas Narayandas Bhaskar and ors 2. He
submitted that the Hon'ble Apex Court held that the
findings recorded in the eviction suit would operate as res
judicata in the subsequent suit filed for declaration of title
and recovery of possession. He submitted that in the
present case, the legal principles settled by the Apex
Court are applicable in favour of Prabhakar.
SUBMISSIONS ON BEHALF OF RAUT:
6. The submissions made by learned counsel for Raut are
summarised as under:
1 (2010) 9 Supreme Court Cases 560
2 [1991(1) Mh.L.J. 407]
901.168.12 sa.docx
a) If Raut successfully gets the decree of cancellation of the
sale deed in favour of Prabhakar, the findings recorded by
the Rent Court on Prabhakar's title will have to be set
aside. If Prabhakar has no right, title or interest, he would
not be entitled to seek a decree of eviction. Thus, the
issue of Raut's possession of the tenanted shop based on
his original tenancy and the subsequent document
executed in his favour would be a material aspect in
deciding the judgment in the eviction suit filed by
Prabhakar.
b) Bhikubai, i.e. one of the original owners, had filed a
written statement in Raut's suit. Prabhakar would not be
entitled to seek eviction on the ground that Raut is
Prabhakar's tenant. Prabhakar initially denied the
payment of ₹50,000 by Raut to Bhikubai; however, the
receipt bears the signature of Prabhakar as attesting
witness. Bhikubai admitted to signing blank papers for the
execution of the documents in 1996. Bhikubai expired
before she could be examined. Hence, the contentions
raised by Bhikubai against Raut cannot be taken into
901.168.12 sa.docx
consideration.
c) Learned counsel for Raut relied upon similar litigation
between Prabhakar and one other tenant, i.e. Neelam
Bhosale. He submitted that the suit filed by Neelam
Bhosale for similar relief of specific performance was
decreed. However, Prabhakar's appeal was allowed, and
the decree was set aside. He further submits that the
findings recorded in the rent suit would not operate as res
judicata in the substantive civil suit filed by Raut based on
the independent document executed in his favour. The
consideration recorded by the Civil Court in the suit filed
by Neelam Bhosale would also be relevant to decide the
present proceedings.
d) So far as the claim of Prabhakar based on default is
concerned, the sale deed relied upon by Prabhakar
nowhere indicates that there were arrears from the
tenants from 1996. In the sale deed executed between
Bhikubai and Prabhakar, there was no mention of any
pending rent from the defendant. The shops occupied by
901.168.12 sa.docx
the tenants were situated on a larger plot of land, and
thus, the larger plot of land purchased by Prabhakar,
admeasuring 955 square feet, does not include Raut's
tenanted shop. Raut, at the same time, had paid ₹50,000
towards the security deposit as a tenant for his shop. The
construction of the shops and the improvement allegedly
made by Prabhakar would not change the theory of the
original construction of the shops. Prabhakar admitted in
his cross-examination that no documentary evidence was
produced on record that he had constructed the shops on
the larger land.
e) Therefore, the suit property described in the suit filed by
Prabhakar would include only the larger land. Thus, the
original owner executing the agreement/sale deed in
favour of Raut cannot be denied. Though Prabhakar
purchased the larger area, his document does not include
the suit shop occupied by Raut. Thus, the sale deed
executed by Indubai in favour of Raut in respect of the
suit shop occupied by Raut would not be affected due to
the sale deed in favour of Prabhakar in respect of the
901.168.12 sa.docx
larger land, which does not include the shop occupied by
Raut.
f) The adjudication of the title in a rent suit and ownership of
the land in a civil suit would have a different scope. When
the landlord relies upon the derivative title and the same
is challenged in the civil suit, it is to be proved and
established in the form required under the civil suit. So far
as the adjudication of title in a rent suit is concerned, it
would therefore not affect the adjudication in a civil suit.
To support his submissions, learned counsel for Raut
relied upon the decision of the Hon'ble Apex Court in the
case of Vinay Eknath Lad Vs. Chiu Mao Chen3 and the
decision of the Hon'ble Apex Court in the case of
Swadesh Ranjan Sinha Vs. Haradeb Banerjee 4 and the
decision of the Hon'ble Apex Court in the case of
Sulochana Amma Vs. Narayanan Nair 5. Hence, the
findings recorded in the rent suit would not operate as res
judicata in the civil suit filed by Raut.
3 (2019) 20 Supreme Court Cases 182
4 (1991) 4 Supreme Court Cases 572
5 (1994) 2 Supreme Court Cases 14
901.168.12 sa.docx
g) The intention of Indubai to transfer the tenanted shop to
Raut is clear from the contents of the document and the
supporting evidence led by Raut. To support his
submissions regarding the real intention of the parties,
learned counsel for Raut relied upon the decision in the
case of Shree Gujarati Harijan Co-operative Housing
Society Ltd. Vs. Additional Collector, Bombay Suburban
District and anr6.
h) Raut was entitled to seek specific performance based on
a document executed prior in time and thus, was entitled
to challenge the document in favour of the subsequent
purchaser, i.e. Prabhakar. A purchaser in a prior
agreement is entitled to claim a decree of specific
performance against a subsequent purchaser without
seeking any declaration or cancellation of the document in
favour of the subsequent purchaser. To support his
submissions, learned counsel for Raut relied upon the
decision of the Hon'ble Apex Court in the case of Maharaj
Singh and others Vs. Karan Singh (Dead) through Legal
6 1991 SCC OnLine Bom 86
901.168.12 sa.docx
Representatives and others7.
i) According to the learned counsel for Raut, the decision in
Prabhakar's Rent Appeal would be limited to Prabhakar's
right to seek eviction. Thus, the Civil Court in the
substantive suit filed by Raut had jurisdiction to decide the
title. Thus, Raut would be entitled to a decree of
declaration challenging Prabhakar's title and would be
entitled to a decree for specific performance against
Indubai, the original owner, and Prabhakar, being a
subsequent purchaser, would thus be liable to execute the
sale deed in favour of Raut in respect of the land beneath
his shop. Thus, Raut would be entitled to a decree of
specific performance in respect of the land beneath the
shop.
j) Therefore, the questions of law framed in the second
appeal be answered in favour of Raut. Prabhakar failed to
establish his title regarding Raut's shop. Pending Raut's
suit, Bhikubai died, and Indubai executed a sale deed in
favour of Raut in respect of the shop. Thus, Raut would
7 (2024) 8 Supreme Court Cases 83
901.168.12 sa.docx
be entitled to a decree for specific performance regarding
the land beneath his shop.
CONSIDERATION OF THE FACTS AND SUBMISSIONS:
7. I have perused the record of the second appeal and the civil
revision application. The relevant dates and events are reproduced
below for a better understanding of the controversy;
a) Admittedly, Bhikubai and Indubai were the original owners
of the property in dispute. Prabhakar and Raut were the
tenants of the original owners with respect to the
respective shops occupied by them.
b) 1st October 1994: A receipt signed by Bhikubai
acknowledges receipt of Rs. 50000/- as a deposit from
Raut towards the shop gala given on rent to Raut.
c) 23rd October 1996: The original owners transferred the
land and the structures in favour of Prabhakar.
d) 3rd May 1997: Prabhakar filed a suit for eviction and
recovery of arrears of rent against Raut.
901.168.12 sa.docx
e) 27th February 1998: Raut instituted a suit for specific
performance and declaration against the original owners
and Prabhakar.
f) November 1999: Bhikubai died.
g) 20th March 2001: Indubai executed a sale deed in favour
of Raut for his shop.
h) 8th July 2004: The rent suit was partly decreed, accepting
Prabhakar's title. Prayer for eviction was rejected;
however, Prabhakar was held entitled to receive arrears
of rent.
i) 25th April 2008: The appeal court in the rent suit held that
Raut is the owner of the suit property. Based on the sale
deed in favour of Raut, the rent court held that Prabhakar
had no title to the rented shop of Raut and thus, the rent
suit for eviction and recovery of arrears of rent filed by
Prabhakar was dismissed.
j) 31st December 2008: The suit for specific performance
and declaration filed by Raut was decreed.
901.168.12 sa.docx
k) 2nd September 2011: The appeal preferred by Prabhakar
against the decree for declaration and specific
performance in the suit of Raut was allowed and Raut's
suit is dismissed.
8. Thus, the rent suit was partly decreed by the trial court during the
pendency of Raut's suit for specific performance and declaration. In
the meantime, similar litigation between Prabhakar and Neelam
Bhosale was decided. Neelam Bhosale also raised similar contentions
to those of Raut. The appeals arising out of the rent suit against
Neelam Bhosale were decided on 22 nd September 2005. Hence,
findings in those judgments were referred to and relied upon by the
appellate court in the appeals arising out of the rent suit against Raut.
The appeals in Raut's rent suit were decided on 25 th April 2008.
Thereafter, Raut's suit for specific performance and declaration was
decreed on 31st December 2008, and Prabhakar's appeal challenging
the decree in Raut's favour was allowed on 2 nd September 2011. Thus,
the rival claims are interlinked and decided in two separate
proceedings.
9. In the rent suit, Raut admits Prabhakar's title to the land;
901.168.12 sa.docx
however, he objects to Prabhakar's sale deed only to the extent of his
shop. In a subsequent suit, initially, Raut prayed for the specific
performance of his shop and the land beneath it in view of the
agreement executed by Bhikubai. Raut also prayed for a declaration
that the sale deed in favour of Prabhakar be declared null and void to
the extent of the land beneath Raut's shop. Pending Raut's suit,
Bhikubai died. Thereafter, Indubai executed a sale deed in favour of
Raut for his shop. Hence, Raut amended the suit and prayed for a
direction that Prabhakar should execute a sale deed in favour of Raut
for the land beneath his shop. At the same time, Raut continued with
his prayer for a declaration challenging Prabhakar's sale deed to the
extent of the land beneath his shop.
10. Thus, Raut has objected to Prabhakar's sale deed to the extent
of his shop, firstly on the ground that Bhikubai agreed to sell the shop
to him and secondly on the ground that Indubai executed a sale deed
for the shop in his favour. Therefore, in the Civil Revision Application
filed by Prabhakar, the controversy is about the title to the shop and
whether Prabhakar is entitled to a decree for eviction of Raut. In view
of the amended prayers in Raut's suit, the controversy to be decided in
the second appeal is whether Raut is entitled to a sale deed from
901.168.12 sa.docx
Prabhakar for the land beneath his shop and whether a decree can be
passed declaring that Prabhakar's sale deed is null and void to the
extent of the land beneath Raut's shop.
11. In view of the sale deed executed by Indubai in favour of Raut for
the shop, Raut has substituted his prayer in his suit against the original
owners and Prabhakar for specific performance of the shop, with a
prayer against Prabhakar for the land beneath his shop. Thus, now in
the civil revision application, the ground available to Raut to deny
Prabhakar's title to the shop is the sale deed executed by Indubai. It is
not disputed that the portion of the land where Raut's shop is situated
was allotted to Bhikubai's share. Indubai executed the sale deed in
favour of Raut on the ground that, after Bhikubai's death, the title to the
property devolved upon Indubai and thus she was entitled to execute
the sale deed. Thus, if it is held that Prabhakar's sale deed included
Raut's shop, there would not be any subsisting right, title or interest
with Bhikubai and Indubai.
12. Raut's initial claim for specific performance of the contract for his
shop is based on a Receipt executed by Bhikubai. Raut has not
claimed any privity of contract with Indubai. Bhikubai and Indubai
901.168.12 sa.docx
executed the sale deed in favour of Prabhakar; therefore, there was no
subsisting right, title, or interest with Indubai when she executed the
sale deed in favour of Raut. Therefore, Raut would not derive any title
through Indubai unless it is held that Prabhakar's sale deed did not
include Raut's shop.
13. In view of the amended prayers in Raut's suit, the issue in the
second appeal pertains only to Raut's claim to the land beneath the
shop. Raut has not prayed for any declaration of ownership of the
shop. Hence, the issue of title to the shop arises only in the civil
revision application. Thus, in the civil revision application, if the trial
court's findings in favour of Prabhakar on the title to the shop are
confirmed, Prabhakar's prayer for eviction of Raut will have to be
examined.
14. Considering the complexity of the rival claims in the two different
proceedings, the findings recorded by both courts in both proceedings
need to be minutely examined. To better understand the controversy,
all the findings in both proceedings are summarised below.
15. The trial court in the rent suit held as under:
901.168.12 sa.docx
a) After the execution of the sale deed in favour of
Prabhakar, Bhikubai issued a letter at Exhibits 54 and 57
disclosing that Prabhakar had purchased the land,
including Raut's tenanted shop, and that the rent amount
was to be paid to Prabhakar.
b) The deposit receipt dated 1 st October 1994, at
Exhibit 65, discloses that Bhikubai accepted Rs. 50000/-
as a deposit from Raut and the shop gala was given on
rent to Raut.
c) Raut's contention that Rs. 50000/- was paid towards
the purchase of his shop gala and the balance of Rs.
20000/- was to be paid at the time of execution of the sale
deed in his favour was disbelieved. Since the Devlekar
sisters had already executed the sale deed in favour of
Prabhakar, Indubai had no right, title, or interest that could
be transferred to Raut by the sale dated 20 th March 2001
executed by Indubai.
d) The schedule to the sale deed in favour of
Prabhakar was interpreted to mean that the entire land
901.168.12 sa.docx
along with the fixtures was transferred to Prabhakar. Thus,
even Raut's gala was purchased by Prabhakar.
e) The assessment extract disclosed the name of
Prabhakar as the owner and that Raut occupied it. The
trial court relied upon Raut's admission that he was a
tenant in respect of the shop gala.
f) The shop gala was given to Raut for running a
vegetable shop; however, the oral evidence and the
documents at Exhibits 84, 85, and 86 indicated that
defendant no. 2 in the rent suit was running an electric
wiring business. For want of sufficient evidence, the
allegation of sub-letting and the ground of bonafide
requirement were disbelieved.
g) After the demand notice, Raut had deposited the
amount; hence, the ground of default was not accepted.
However, Prabhakar was held as the landlord and Raut a
tenant. Thus, Prabhakar was held entitled to recover
arrears of rent, and thus he was permitted to withdraw the
rent amount deposited by Raut in the rent suit.
901.168.12 sa.docx
h) Prabhakar's prayer challenging the sale deed
executed by Indubai in favour of Raut was held beyond
the rent court's jurisdiction.
16. The appellate court in the rent suit held that:
a) The dispute raised by Raut over Prabhakar's title is
relevant only to the extent of Prabhakar's claim that he is
the landlord and Raut is his tenant.
b) The contents of the sale deed in favour of
Prabhakar reveal that, after the transfer of one shop to
Rajan Salvi, the remaining open area with Devlekar
sisters was 88.82 square meters, and since 1973,
Prabhakar runs a garage erected over the said area. The
third paragraph on page 3 of the sale deed mentions that
Prabhakar is in possession of the said area, and Bhikubai
consented to transfer that land to Prabhakar for Rs.
70000/-. The schedule to the sale deed describes the
property as Survey No. 350A Hissa No. 22 admeasuring
4.3 Are out of which land has been acquired for 80 feet
901.168.12 sa.docx
road, land has been transferred to Rajan Salvi under sale
deed 2nd November 1995, and land given to Rajan Shetye
and Umesh Shetye by sale deed 2 nd April 1996 and thus
the remaining land is transferred to Prabhakar. Though
Raut came in possession of his shop before the sale deed
in favour of Prabhakar, there is no mention of Raut's shop
in the sale deed.
c) If the parties intended to include Raut's shop in the
transfer effected by the sale deed in favour of Prabhakar,
the description of Raut's shop would have been included
in the description.
d) The crucial question is whether Raut's shop is
amongst the six sheds standing over the land transferred
to Prabhakar, and whether it can be presumed under the
second paragraph of Section 8 of the Transfer of Property
Act that it was so transferred, it being attached to the
earth.
e) The oral evidence of Prabhakar reveals that out of
six sheds, Bhikubai transferred one shed to Rajan Shetye
901.168.12 sa.docx
and one shed to Neelam Bhosale. In a similar rent suit
filed by Prabhakar against Neelam Bhosale, she had
taken a similar defence to that of Raut. Neelam Bhosale
also claimed that Bhikubai had agreed to transfer the
tenanted shop for a consideration of Rs. 70000/-. Neelam
Bhosale had also instituted a suit for specific performance
against Bhikubai and Prabhakar. In the rent suit against
Neelam Bhosale, a similar judgment was passed as in
Raut's suit; hence, two rent appeals were filed. By
common judgment dated 22nd September 2005, both
appeals were decided, and Prabhakar's rent suit against
Neelam Bhosale came to be dismissed. Hence,
Prabhakar challenged the dismissal of his suit in the High
Court, and it was pending. According to Prabhakar, out of
the total six sheds, three were sold and three were in his
possession. Thus, if each shed were valued at Rs.
70000/-, then in Prabhakar's sale deed, the price of the
property sold to him would have been more than Rs.
70000/-.
f) Prabhakar's sale deed was for Rs. 70000/- for the
901.168.12 sa.docx
property described as 955 square feet of land and a
garage standing thereon; thus, it can be inferred that
Raut's shop was not included, and the sale deed was
restricted only to the open land and the garage.
g) By the letter at Exhibit 54, Bhikubai had asked Raut
to pay the rent of his shop to Prabhakar. The receipt
signed by Bhikubai acknowledging receipt of Rs. 50000/-
from Raut was signed by Prabhakar as an attesting
witness; however, in Prabhakar's sale deed, there is no
reference to the adjustment of Rs. 50000/- paid by Raut
to Bhikubai. Though Prabhakar claimed that Raut's
tenancy was attorned to him, there is no reference to the
adjustment of Rs. 50000/- towards rent. Prabhakar
claimed arrears of rent from September 1996, which is
one month earlier than his sale deed; thus, these
circumstances support Raut's contention of the sale
transaction between him and Bhikubai.
h) Prabhakar relied upon Bhikubai's written statement
in Raut's suit, where she supported Prabhakar's
901.168.12 sa.docx
contention that Raut's shop was sold to Prabhakar.
However, Bhikubai died after filing the written statement;
hence, Raut could not confront her. Indubai, who
succeeded as her sole heir, executed a sale deed dated
21st March 2001 in Raut's favour by accepting the balance
consideration of Rs. 20000/-. Thus, till the sale deed in
favour of Raut is set aside or there is a declaration
granted that it will not be binding upon Prabhakar, Raut
will continue to be the owner of his shop.
i) Prabhakar contended that he had been occupying
the garage as Bhikubai's tenant since 1973, and they
decided to construct six shops, and Raut was inducted by
Bhikubai in 1994 by executing the rent note. However,
these contentions regarding the joint venture were not
mentioned in the suit notice. The permission for
construction was dated 9th March 1995. Thus, there could
not be a rent note in 1994. Thus, these facts support
Raut's contention that there was an agreement for sale in
his favour and not a rent agreement.
901.168.12 sa.docx
j) The trial court erroneously held that Raut's shop
was included in the description of the property in
Prabhakar's sale deed, as the schedule mentioned land
along with fixtures. However, Raut's shop was not
specifically described in the schedule to the sale deed;
hence, the findings by the trial court that Prabhakar was
the owner and landlord of Raut's shop were not
sustainable. Hence, Prabhakar was not entitled to claim
arrears of rent.
k) The allegation that Raut was inducted for running a
vegetable shop was not proved. Raut's evidence showed
that he was running an electric wiring shop. There was no
material to show that Raut had sublet the shop to the
defendant no. 2. Hence, the ground of subletting was not
proved.
l) In view of the findings that there was no landlord-
tenant relationship between Prabhakar and Raut, the
grounds for eviction would not survive.
17. In Raut's suit for declaration and specific performance, the
901.168.12 sa.docx
trial court held as under:
a) The contents of Prabhakar's sale deed showed that
out of 4.3 Are of Survey No. 350A Hissa No. 22, land has
been acquired for road, some part is transferred to Rajan
Salvi, Rajan Shetye and Umesh Shetye. The sale deed
further records that after excluding the area already
transferred and acquired, the remaining area with
Devlekar was 88.82 square meters. But there is no
reference to the shop possessed by Raut.
b) The rent receipt dated 1st October 1994
acknowledges receipt of a deposit of Rs. 50000/- from
Raut towards the shop given on rent. In the normal
course, the description of the property sold to Prabhakar
would have included the shop possessed by Raut as a
tenant.
c) By applying the principles under the second
paragraph of Section 8 of the Transfer of Property Act, if
the real intention of the parties was to transfer the area of
Raut, then it would have been included in the sale deed of
901.168.12 sa.docx
Prabhakar.
d) The evidence on record shows that there were six
sheds over the land. Bhikubai transferred one shed to
Rajan Shetye. There was a transaction between the
Devlekar sisters and Neelam Bhosale regarding one shop
out of six. A copy of the judgment in Neelam Bhosale's
suit showed similar facts and litigation between Prabhakar
and Neelam Bhosale. The Judgments in the rent suit
against her were also similar. The transactions with
Prabhakar, Raut and Neelam Bhosale show that the
valuation of each shop was Rs. 70000/-. Thus, if the sale
deed of Prabhakar included all the shops, the valuation
would not have been only Rs. 70000/-.
e) The property under transfer in Prabhakar's sale
deed was 955 square feet of land, and the garage
standing thereon possessed by Prabhakar. In the context
of the sale price in the subsequent sale in favour of
Prabhakar, it can be safely inferred that Prabhakar's sale
deed does not include Raut's shop.
901.168.12 sa.docx
f) In the rent suit, Prabhakar produced a letter of
attornment of Raut's shop. However, the receipt
acknowledging receipt of Rs. 50000/- by Bhikubai from
Raut is signed by Prabhakar as a witness. Thus, it can be
inferred that Prabhakar was aware of the transaction
between Raut and Bhikubai. However, there is no
reference to the adjustment of Rs. 50000/- in Prabhakar's
sale deed. Prabhakar also failed to prove the allegation
of subletting. Thus, it can be inferred that there is no
landlord-tenant relationship between Prabhakar and Raut.
g) Prabhakar's theory that the schedule of the
property to his sale deed describes property as land and
the fixtures standing thereon; therefore, Raut's shop is
also included, is unbelievable.
h) Bhikubai signed the receipt acknowledging receipt
of Rs. 50000/-. After Bhikubai's death, the property
devolved upon Indubai, who executed the sale deed in
favour of Raut by accepting the balance consideration of
Rs. 20000/-. Therefore, Raut is entitled to specific
901.168.12 sa.docx
performance of the agreement executed by Bhikubai in
his favour. However, the sale deed is executed in favour
of Prabhakar for the entire property. Therefore, the sale
deed of Prabhakar has to be treated as null and void
regarding the land beneath Raut's shop, and Prabhakar
would be liable to execute a sale deed in favour of Raut.
i) Therefore, Raut's suit decreed by declaring that
Prabhakar's sale deed is null and void regarding the land
beneath Raut's shop and Prabhakar was directed to
execute a sale deed in favour of Raut regarding the land
beneath the shop.
18. The first appellate court in Prabhakar's appeal against the
decree in Raut's suit held as under:
a) Raut initially filed the suit for specific performance of
his tenanted shop and the land beneath it. Pending the
suit, Indubai executed a sale deed in favour of Raut for
the shop. Hence, Raut amended the suit and prayed only
for relief against Prabhakar for the land beneath the shop.
901.168.12 sa.docx
b) The sale deed in favour of Prabhakar covers the
entire property, excluding the property alienated to Rajan
Salvi, Rajan Shetye, and Umesh Shetye. The sale deed
also mentions that Prabhakar has kept sub-tenants. The
description includes land and fixtures thereon, and Raut's
shop is not excluded. Thus, it cannot be said that
Prabhakar's sale deed does not include the land beneath
Raut's shop.
c) The receipt acknowledging receipt of Rs. 50000/-
from Raut is towards a deposit for the shop given on rent
to Raut. There is no dispute that Raut's source of
possession in his shop is as a tenant. Raut admitted in
evidence that he was paying Rs. 1000/- towards monthly
rent, and he spent Rs. 20000/- for interior decoration of
the shop and obtained electricity connection.
d) The rent receipt does not acknowledge payment of
the earnest amount. The receipt acknowledges receipt of
the deposit towards the shop given on rent. There is no
evidence that an agreement for sale was executed in
901.168.12 sa.docx
favour of Raut. Even if it was assumed that an agreement
for sale was executed in favour of Raut, the title stood
transferred to Prabhakar by a valid sale deed. Hence, at
the most, Raut could claim specific performance, but the
sale in favour of Prabhakar cannot be said to be null and
void.
19. In the rent suit, Prabhakar claims that he is the owner of
the entire land bearing Survey No. 350A, Hissa No. 22,
admeasuring 995 square feet and the six shops thereon. He
contended that Raut was a tenant of one of the shops and
sought eviction on the grounds that Raut had sublet the suit
property and was in arrears of rent. In the rent suit, Raut
claimed that out of Survey No. 350A, Hissa No. 22, numbered
as CTS No. 2058, owned by the Devlekar sisters, some area
was acquired for the road. He contended that the Develekar
sisters wanted to develop their land and obtained construction
permission dated 9th March 1995; however, they did not have
sufficient funds. Hence, according to Raut, the Devlekar sisters
agreed to sell the suit property, i.e., the shop, to him for Rs.
70000/- and accepted Rs. 50000/- from Raut on 1 st October
901.168.12 sa.docx
1994. He contended that after construction was completed, the
balance amount of Rs. 20000/- was to be paid and the shop
gala was to be transferred to him by executing a sale deed.
However, he also contended that he was paying a monthly rent
of Rs. 1000/- to Bhikubai till October 1996.
20. Thus, considering the rival claims on the title of the suit
property, i.e. the shop, the trial court in the rent suit framed
issue nos. 1, 8 and 9 as under:
"1. Whether defendant is a tenant of the plaintiff ?
8. Whether plaintiff proves that sale deed dated 20/3/2001
in favour of defendant no. 1 executed by Indubai Atmaram
Devalekar, registered on 21/3/2001 illegal?"
9. Whether plaintiff is entitled for declaration as prayed ?"
21. The issue no. 1 was answered in the affirmative, and
issue nos. 8 and 9 were held to be redundant. Both parties led
evidence on their respective claim of title. Prabhakar led
evidence to support his claim that he was the owner of the
entire land and all the structures, including Raut's shop, in view
of the sale deed dated 23 rd October 1996 in his favour. Raut led
901.168.12 sa.docx
evidence to support his claim that by the Receipt dated 1 st
October 1994, Bhikubai accepted Rs. 50000/- as part
consideration towards the agreement to sell the shop to Raut.
Raut also claimed that only the land beneath his shop was the
subject matter of the sale deed in favour of Prabhakar. While
deciding issue no. 1, the trial court exhaustively discussed the
evidence and held that Prabhakar purchased Survey No. 350A,
Hissa No. 22, along with the shop galas, and Raut was a tenant
of Bhikubai and then became Prabhakar's tenant. It was further
held that the Devlekar sisters had already sold the suit property,
i.e. the shop, to Prabhakar; hence, at the time of executing the
sale deed in favour of Raut, Indubai had no title as an owner.
22. While deciding issue nos. 8 and 9, the trial court in the
rent suit held that the relief claimed by Prabhakar to challenge
the subsequent sale deed executed by Indubai in favour of Raut
would not fall within the rent court's jurisdiction, and Prabhakar
would have to file a civil suit for that relief.
23. Thus, in the eviction suit, Raut objected to Prabhakar's
title to the suit property, i.e. the shop structure, on the ground
901.168.12 sa.docx
that Bhikubai had executed an agreement for sale in his favour
and his tenanted shop was not the subject matter of the sale
deed in Prabhakar's favour. However, in the suit filed by Raut,
he prayed for getting the sale deed executed from the original
owners and Prabhakar for the shop and also prayed for
cancellation of Prabhakar's sale deed to the extent of the land
beneath Raut's shop. After Indubai executed the sale deed in
favour of Raut for the shop, he amended the first prayer and
prayed that Prabhakar should be directed to execute a sale
deed in his favour for the land beneath the shop.
24. In view of the pleadings in the civil suit, the trial framed
issues on whether Raut proved the agreement for sale in his
favour in terms of the Receipt dated 1 st October 1994, whether
Raut was ready and willing to perform the part of the contract
and whether he was entitled to specific performance. Though
Raut had not challenged Prabhakar's sale deed and his prayer
was only to the extent of the land beneath his shop, the trial
court framed issues on whether Prabhakar got the sale deed
executed illegally. The trial court also framed issues on
901.168.12 sa.docx
Prabhakar's contentions regarding the agreed rent between
Raut and Bhikubai and regarding Raut's contentions regarding
obtaining Bhikubai's signature on blank paper.
25. The trial Court decreed his suit despite Raut's mutually
inconsistent prayers. The trial court in Raut's suit erred in
granting specific performance in favour of Raut, directing
Prabhakar to execute the sale deed regarding land beneath
Raut's shop, after declaring that Prabhakar's sale deed
regarding land beneath Raut's shop was null and void. If Raut
challenged the title in favour of Prabhakar, he would not be
entitled to seek any specific performance from Prabhakar.
Therefore, the first appellate court in Prabhakar's appeal
against the decree in Raut's suit rightly set aside the trial court's
decree.
26. The findings recorded by the first appellate court in Raut's
suit, summarised in the above-mentioned paragraphs, indicate
that they are based on the appreciation of the pleadings and
evidence in Raut's suit. It is held that the description in
901.168.12 sa.docx
Prabhakar's sale deed includes land and fixtures thereon, and
Raut's shop is not excluded. Thus, it is held that it cannot be
said that Prabhakar's sale deed does not include the land
beneath Raut's shop. For want of evidence, Raut's theory of
executing an agreement for sale in his favour is rightly
disbelieved. A perusal of the Receipt dated 1 st October 1994
shows that it is only an acknowledgement of receipt of Rs.
50000/- as a deposit towards the shop given to Raut on rent.
The appeal court further rightly held that even if it was assumed
that an agreement for sale was executed in favour of Raut, the
title stood transferred to Prabhakar by a valid sale deed; hence,
at the most, Raut could claim specific performance, but the sale
in favour of Prabhakar cannot be said to be null and void.
27. The suit for specific performance was decreed on 31 st
December 2008. However, the rent suit filed by Prabhakar in
1997 was decreed by the Trial Court on 8 th July 2004, which is
much prior to the date of filing of the suit by Raut. So far as the
findings are concerned, the dispute on title was first examined
by the trial court in the rent suit. The trial court held that the title
901.168.12 sa.docx
of the property, including Raut's shop, was transferred to
Prabhakar by the sale deed in favour of Prabhakar. The appeal
court reversed this finding in rent suits. However, in the
meantime, Bhikubai died, and Indubai executed a sale deed in
favour of Raut for the shop. Raut's argument is that the land
beneath his shop was transferred to Prabhakar, but the shop
was not the subject matter of the sale deed in favour of
Prabhakar. Thus, Raut admits Prabhakar's title to the Survey
No. 350A, Hissa No. 22, and the structures thereon, save and
except his shop structure. Therefore, though the facts and the
arguments on behalf of both parties appear to be complex, the
controversy is regarding Raut's claim of ownership of his shop
and whether Prabhakar is entitled to seek possession of Raut's
shop.
28. The arguments regarding the applicability of the principles
of res judicata are to be decided with reference to the scope of
prayers in the suits and the above findings of fact. Learned
counsel for Prabhakar relied upon the decision of the Hon'ble
Apex Court in the case of Mohd. Nooman and the decision of
this court in the case of Narayan Sadashiv Bhalerao, to support
901.168.12 sa.docx
his submissions that the findings in the rent suit would operate
as res judicata in the suit filed by Raut.
29. The Hon'ble Apex Court in the decision of Mohd. Nooman
held that the binding effect of the findings on title recorded in an
eviction suit on a subsequent suit for declaration of title and
possession between the same parties would depend upon the
manner in which the parties raised the question of title and how
it is dealt with by the court. It is further held that ordinarily, in a
suit for eviction, even if the court goes into the question of title,
it examines the issue in an ancillary manner; and in such cases
the findings recorded in the eviction suit would be binding in the
subsequent suit filed for declaration of title and recovery of
possession. The Hon'ble Apex Court thus held that there are
exceptions to the general rule. In the facts of the case before
the Hon'ble Apex Court, it was held that the issue of title was
expressly raised by the parties in the earlier eviction suit, and
the eviction court expressly decided it; hence, the findings in the
earlier suit would operate as res judicata in the subsequent suit.
This court in the case of Narayan Bhalerao held that a finding
recorded in a previous rent suit would operate as res judicata,
901.168.12 sa.docx
though the issue of title was outside the jurisdiction of the small
causes court.
30. Learned counsel for Raut relied upon the decision of this
court in the case of Sulochana Amma to support his
submissions that the findings recorded in the rent appeals
would operate as res judicata in the civil suit in view of
Explanation VIII to section 11 of the Code of Civil Procedure. In
view of the different facts of the present case and the mutually
inconsistent prayers in Raut's suit, the legal principles settled in
the said decision would not be of any assistance to Raut's
arguments.
31. Though the rival claims of the parties in both proceedings
are concerning part of the same property, the scope of prayers
and the issues involved were different. In the rent suit, the
dispute was about the shop, and in the civil suit, wider issues
were involved regarding Prabhakar's title to the entire land and
the structures and Raut's claim of specific performance and
declaration. Hence, in the present case, the manner in which
the issue of title is differently raised in both the suits, it had to be
dealt with differently in both the suits. Hence, the bar of
901.168.12 sa.docx
principles of res judicata would not apply.
32. In the present case, the trial court in the eviction suit dealt
with the Raut's contention and disbelieved that Rs. 50000/- was
paid towards the purchase of his shop gala and the balance of
Rs. 20000/- was to be paid at the time of execution of the sale
deed in his favour. It was also held that since the Devlekar
sisters had already executed the sale deed in favour of
Prabhakar, Indubai had no right, title, or interest that could be
transferred to Raut by the sale dated 20 th March 2001 executed
by Indubai. The rival contentions on the description of the
property were dealt with reference to the claim of shop, and the
schedule to the sale deed in favour of Prabhakar was
interpreted to mean that the land along with the fixtures, was
transferred to Prabhakar and, thus even Raut's shop gala was
purchased by Prabhakar.
33. The appeal court reversed this finding, recorded by the
trial court in the rent suit. The appeal court held that Raut's
shop was not specifically described in the schedule to the sale
deed in favour of Prabhakar. The appeal court relied upon the
trial court and appeal court's judgments in a similar rent suit
901.168.12 sa.docx
filed by Prabhakar against Neelam Bhosale and erroneously
drew inferences on the sale price in Prabhakar's sale deed to
mean that if the entire land, including all the structures, were to
be transferred to Prabhakar, the consideration amount would
have been higher. The findings recorded by the appeal court in
the rent appeals accepting Raut's claim of ownership would not
be sustainable in as much as his suit for specific performance of
the agreement was pending. The appeal court erred in holding
that till the sale deed dated 21 st March 2001 executed by
Indubai in Raut's favour by accepting the balance consideration
of Rs. 20000/- is set aside or there is a declaration granted that
it will not be binding upon Prabhakar, and Raut will continue to
be the owner of his shop. The appeal court in the rent suit lost
sight of the fact that, in view of the sale deed in favour of
Prabhakar, Indubai had no subsisting right, title or interest in the
land or the structures; therefore, Raut would not derive any
right, title or interest through Indubai.
34. The appeal court in the rent suits and the trial court in
Raut's suit misappreciated the principles contemplated under
Section 8 of the Transfer of Property Act. There is no dispute
901.168.12 sa.docx
that Raut's shop is amongst the six sheds standing over the
land transferred to Prabhakar. The description in the sale deed
includes all the details of the original area and the part of the
land acquired and sold. The description in the schedule refers
to the land along with the fixtures. Except for the rent receipt,
Raut has not produced any material to support his contention
that the shop was agreed to be sold to him. Raut does not
challenge the sale deed in favour of Prabhakar. However, his
objection to Prabhakar's sale deed is only to the extent of his
shop. Admittedly, the shop in dispute was given to Raut on rent.
35. Raut's claim of ownership of the shop is based, firstly, on
the agreement to sell allegedly executed by Bhikubai and,
secondly, on the sale deed executed by Indubai. The rent
receipt clearly records that Rs. 50000/- was paid to Bhikubai as
a deposit for the shop given on rent. Raut's claim that the
amount was paid towards the earnest amount is disbelieved by
the trial court in the rent suit and by the appeal court in Raut's
suit for declaration and specific performance.
36. There is no dispute that Raut's shop is one of the six
901.168.12 sa.docx
shops constructed on the land sold to Prabhakar. The transfer
of the entire land to Prabhakar is not disputed by Raut. The
description of the property in the schedule to Prabhakar's sale
deed provides particulars of the land along with the fixtures
therein. Thus, once Raut's claims for ownership of the shop are
disbelieved, there is no other reason or any valid ground to hold
that there was any other intention of the original owners to
transfer the land and the structures to Prabhakar by excluding
Raut's shop. Thus, the presumption under Section 8 of the
Transfer of Property Act would apply to Prabhakar's
contentions. Thus, I am satisfied that by the sale deed in favour
of Prabhakar, the land and all the structures, including Raut's
shop, were transferred to Prabhakar.
37. Thus, for the aforesaid reasons, I confirm the findings on
the title of the shop recorded by the trial court in Prabhakar's
rent suit and the findings recorded by the appeal court in the
civil suit filed by Raut. I have already recorded reasons to hold
that the sale deed executed by Indubai would not confer any
title to Raut.
CONCLUSIONS IN SECOND APPEAL:
901.168.12 sa.docx
38. A perusal of the record indicates that RCS 168 of 1997 is
the rent suit filed by Prabhakar against Neelam Bhosale, and
Civil Appeal No. 52 of 2009 is Prabhakar's appeal against the
trial court's decree in Raut's civil suit. The principles of res
judicata apply when the issue is substantially decided amongst
the same parties in the earlier suit. Hence, the first question of
law framed in the second appeal would not arise in the facts of
the present case and thus would not require any discussion.
39. The Regular Civil Appeal No.88 of 2004 is filed by
Prabhakar against the trial court's decree in the rent suit filed
against Raut. In view of the amended prayers in the Raut's civil
suit, the issue involved was restricted to Raut's claim on the
land beneath Raut's shop. The findings recorded in the rent
appeals are regarding the landlord-tenant relationship between
Prabhakar and Raut regarding the shop. Hence, the finding
given in the Regular Civil Appeal No.88 of 2004 that Prabhakar
has not established his title and status as the Owner/Landlord
of Raut would not be relevant to decide the controversy in
Raut's civil suit regarding the land beneath the shop.
Considering the mutually inconsistent prayers made in the civil
901.168.12 sa.docx
suit, the issues therein must be examined and decided
independently. Thus, the second question of law is answered
accordingly.
40. The R.C.S. No.167 of 1997 is the rent suit filed by
Prabhakar against Raut for the shop, Civil Appeal No.88 is the
rent appeal filed by Prabhakar against Raut, R.C.S. No.322 of
2000 is filed by Neelam Bhosale against Prabhakar and Civil
Appeal No.1 of 2006 is filed by Prabhakar against Neelam
Bhosale. For deciding the controversy in Raut's civil suit
regarding the land below his shop, the findings in the rent
proceedings between Prabhakar and Raut regarding the shop
are discussed in detail. The findings recorded by the appeal
court are summarised and recorded in the paragraphs above.
Hence, no interference is warranted in the impugned judgment
on the third question of law framed in the second appeal.
41. Learned counsel for Raut relied upon the decision of this
court in the case of Shree Gujarati Harijan CHS, to support his
submission on the interpretation of Prabhakar's sale deed to
mean that it excluded Raut's shop. In the said decision, this
901.168.12 sa.docx
court held that a departure from the literal interpretation can be
made if there is any ambiguity. In view of the different facts of
the present case as discussed above, the said decision is of no
assistance to the arguments made on behalf of Raut.
42. The legal principles settled in the decision of the Hon'ble
Apex Court in the case of Maharaj Singh are relied upon by the
learned counsel for Raut to support his submissions that Raut
was entitled to claim specific performance of the contract
against Prabhakar, as his contract was prior to the sale deed in
favour of Prabhakar. Raut's prayer for specific performance
against Prabhakar for the land beneath his shop is not refused
on the ground that he has not challenged Prabhakar's sale
deed. Hence, the decision in the case of Maharaj Singh is of no
assistance to Raut's claim.
43. Therefore, for the reasons recorded above, all the
questions of law are accordingly answered in favour of
Prabhakar, i.e. respondent no. 1. The impugned judgment and
decree would not require any interference in this second
appeal.
901.168.12 sa.docx
CONCLUSIONS IN CIVIL REVISION APPLICATION:
44. The learned counsel for Raut relied upon the decision of
the Hon'ble Apex Court in the case of Swadesh Sinha. The
Hon'ble Apex Court held that in a suit for eviction of a tenant by
the landlord, all that the plaintiff needs to prove is that he has a
better title than the defendant, and he has no burden to prove
that he has the best of all possible titles.
45. The Hon'ble Apex Court, in the decision of Vinay Lad,
held that the right of a tenant to challenge the derivative title of
the landlord is subject to one caveat that the tenant has not
attorned to the assignee. The Apex Court held that in a
landlord-tenant suit, the landlord is not required to prove his title
as required to be proved in a title suit, and thus the onus is not
on him to establish a perfect title.
46. In the present case, Prabhakar has succeeded in proving
that, by the sale deed in his favour, he became the owner of the
entire land and the structures thereon, including Raut's shop.
The findings recorded by the appeal court in the rent appeals
901.168.12 sa.docx
are not sustainable in law. The trial court in the rent suit has
rightly held that Prabhakar proved title to the shop and that
Bhikubai had attorned Raut's tenancy to Prabhakar. Admittedly,
Raut was a tenant of his shop and was paying monthly rent.
The letter of attornment is correctly relied upon by the appeal
court to hold that Raut became the tenant of Prabhakar.
However, Prabhakar failed to prove that defendant no. 2 in the
rent suit was occupying the shop to the exclusion of Raut. Both
courts held that Raut was in possession of the shop. Raut
deposited the rent amount in the court. The grounds of
subletting and arrears were not proved for eviction. Hence, the
civil revision application deserves to be partly allowed by
confirming the trial court's decree.
47. For the reasons recorded above, the Second Appeal No.
168 of 2012 is dismissed with no order as to costs.
48. The Civil Revision Application No. 507 of 2008 is partly
allowed with no order as to costs, by passing the following
order:
901.168.12 sa.docx
a) The judgment and decree dated 25 th April 2008
passed by the District Judge-1, Ratnagiri in Regular Civil
Appeal No. 88 of 2004 and Regular Civil Appeal No. 83
of 2004 is quashed and set aside.
b) Regular Civil Appeal No. 83 of 2004 is dismissed.
c) Regular Civil Appeal No. 88 of 2004 is partly
allowed and the Judgment and Decree dated 8 th July
2004 passed by the 2nd Joint Civil Judge JD, Ratnagiri in
Regular Civil Suit No. 167 of 1997 is confirmed.
[GAURI GODSE, J.]
