[Cites 12, Cited by 0]

Bombay High Court

Jafarbhai Amirbhai (Dead) Thr. Lrs. ... vs Shantabai Gangadhar Kamle (Deceased) ... on 18 March, 2026

2026:BHC-NAG:4703

                                                             SA 88 of 2024 - Judgment.odt
                                                 1
                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     NAGPUR BENCH AT NAGPUR

                                   SECOND APPEAL NO.88/2024

                APPELLANTS :    Jafarbhai Amirbhai (Since Deceased)
                (R.A. Ori.      Through His Legal Heirs
                Defendant/
                Appellant)   1. Smt. Jaybunbi Sheikh Jafar (Since Deceased)
                                Deleted

                               2. Shakilabai Sardar Khan (Daughter)
                                  Age 53 Years, Occ.: Household,
                                  R/o. Plot No. 87, Near Masjid, Mankapur,
                                  Nagpur - 440030.
                                  (Aadhaar No. 243432419863)

                              3. Hamida Nazib Sheikh (Daughter)
                                 Age 59 Years, Occ.: Household,
                                 R/o. Ramaleshwar Ward, Ramtek,
                                 District Nagpur-441106.
                                (Aadhaar No. 786150859421)

                              4. Sheikh Kadar Sheikh Jafar (Son)
                                 Aged About 61 Years, Occ.: Business,
                                 R/o Subhash Ward, Ambedkar Chowk, Ramtek,
                                 District Nagpur-441106.
                                 (Aadhaar No. 946867196766)

                              5. Bismisla Begum Gaffarbhai Daughter
                                 Age 50 Years Occ. Household
                                 R/o. Dhomne Layout, Mankapur,
                                 Nagpur-30 Aadhaar No 584730525771.

                              6. Sheikh Anwar Sheikh Jafar (Son)
                                 Aged About 59 Years, Occ.: Doctor;
                                 R/o Subhash Ward, Ambedkar Chowk,
                                 Ramtek, District Nagpur - 441106.
                                 (Aadhaar No. 590534643605)

                              7. Raziya Mohd. Sabir (Daughter)
                                 Age 47 Years, Occ.: Household,
                                                                  SA 88 of 2024 - Judgment.odt
                                                2
                          R/o. Plot No. 63, Near Masjid,
                          Mankapur, Nagpur - 440030.
                          (Aadhaar No. 622776931872)

                      8. Johra Iqbasl Ahmed (Daughter)
                         Age 45 Years, Occ.: Household
                         R/o. Surbhi Colony, Raja Ki Bagiya,
                         Nagpur Road, Chhindwada-480001.
                         (Aadhaar No. 611881425884)

                     9. Sheikh Akbar Sheikh Jafar (Son)
                        Aged About 44 Years, Occ.: Business,
                        R/o Subhash Ward, Ambedkar Chowk,
                        Ramtek, District Nagpur-441106.
                        (Aadhaar No. 282643424947)

                    10. Sheikh Firoz Sheikh Jafar (Son)
                        Aged About 47 Years, Occ.: Business,
                        R/o Subhash Ward, Ambedkar Chowk,
                        Ramtek, District Nagpur - 441106.
                        (Aadhaar No. 985421442761)
                        (Mobile No. 9371411697)

                                  ...VERSUS...

RESPONDENT :               Smt. Shantabai Gangadhar Kamle
(R.A./Ori. Plaintiff        (Since Deceased)
/Respondent)               Through His Legal Heirs
                           Shri. Mukesh S/o. Mahadeo Kamle,
                           Aged About 42 Years, Occ.:- Business
                           R/o. Tilak Ward, Near Bus Stand,
                           Ramtek, Tahsil Ramtek, Dist. Nagpur.

                             (Amendment is carried out as per Order of
                               Hon'ble High Court.)
---------------------------------------------------------------------------------------------------
                 Mrs. Renuka Sirpurkar, Advocate for appellants
                 Mr. S.A. Deole, Advocate for respondent
---------------------------------------------------------------------------------------------------

                                            CORAM : ROHIT W. JOSHI, J.
                                            DATE  : 18/03/2026
                                                      SA 88 of 2024 - Judgment.odt
                                      3
ORAL JUDGMENT :

1. The present Second Appeal is preferred against judgment

and decree dated 27/06/2023, passed by the learned District Judge -

17, Nagpur in Regular Civil Appeal No.430/2016 and judgment and

decree dated 02/05/2016, passed by the learned Civil Judge, Junior

Division, Ramtek in Regular Civil Suit No.26/2004.

2. The appellants in the present appeal are legal

representatives of the original defendant. The respondent is legal

representative of original plaintiff. The suit was filed, seeking decree of

eviction, permanent and mandatory injunction with possession and

damages. The case of the plaintiff is that she is owner of the suit

property, which comprises of land bearing Survey No.88 admeasuring

0.74 acres, situated at Ramtek, Tahsil Ramtek, District Nagpur. It is the

case of the plaintiff that out of the said land, a portion of land

admeasuring 3500 sq. ft. (35 ft. East-West and 100 ft. North-South) was

granted on lease to the defendant around 25 years before the institution

of suit. The case of the plaintiff is that the tenancy was a monthly

tenancy commencing from first day of each English calendar month and

expiring on the last date thereof. The rent is stated to be Rs.100/- p.m.

The lease pertains to open plot. The plaintiff claimed that the defendant

was irregular in making payment of rent since 01/03/2001 and that the

Sawmill, for which the suit property was leased, was closed and instead, SA 88 of 2024 - Judgment.odt

the defendant had started a hardware of shop and flour mill in the suit

property since around four years prior to institution of the suit. The

plaintiff also claimed that she was in need of the suit property for

personal use.

3. The defendant filed written statement opposing the suit.

Although in response to the paragraphs in the plaint, the defendant

denied each and every averment made therein, in the specific pleadings,

the defendant admitted that he was admitted as a tenant in the suit

property in the year 1969. It is stated that the lease was with respect to

open land. The defendant has contended that he has made construction

over the suit property from his own funds. The defendant further stated

that the lease was for manufacturing purposes and that it could be

terminated only by issuance of six months notice. The defendant

contended that the suit was liable to be dismissed, since notice,

terminating tenancy was received by him on 10/03/2004 and the suit

was instituted on 01/04/2004. The defendant also contended that the

lease was not restricted to area of 3500 sq. ft. and that the entire field

to the Southern side of the Ramtek-Tumsar road was let to him on lease.

The defendant also contended that the lease was for a period exceeding

one year and since it was not registered, it was inadmissible in evidence.

4. The learned Trial Court has passed decree for eviction and

possession in favour of the plaintiff. The learned Trial Court referred to SA 88 of 2024 - Judgment.odt

judgment in the case of Mohammad Shahariyar Baig Vs. R.P. Bhal ,

reported in 1987 (2) Civil L.J. 419 and Bacchulal Shahu Vs. Geeta

Timber Co. reported in AIR 1996 Orissa 3 to hold that a lease granted

for Sawmill is not a lease for manufacturing purposes and therefore, the

contention of the defendant that the notice for termination of lease

ought to have been a six months notice was rejected. As regards the

proof of the lease-deed, the learned Trial Court referred to express

admissions with respect to the lease deed in earlier suit between the

parties being Regular Civil Suit No.251/1986. The learned Trial Court

held that the defendant had admitted the lease in the said suit and the

documents of lease were exhibited as Exh.87 and 88 in the earlier suit.

The certified copies of the lase-deeds from the record of earlier suit

came to be marked as Exh.58 and 59. The learned Trial Court also

recorded that Section 106 of the Transfer of Property Act, 1882

provided that a lease for manufacturing purpose would be deemed to be

a lease for year to year only in absence of contract to the contrary and

that in the present case, lease deed clearly provided for payment of

monthly rent and was a monthly lease. On this ground also, it was held

that the lease could be terminated by issuing 15 days notice. The

learned Trial Court found that the defendant had admitted receipt of

notice on 10/03/2004 and the suit was instituted on 01/04/2004 after SA 88 of 2024 - Judgment.odt

period of 15 days had lapsed since the date of service of notice. In view

of the aforesaid, the learned Trial Court passed decree for eviction.

5. Being aggrieved by the aforesaid decree for eviction, the

defendant preferred appeal being Regular civil Appeal No.430/2016.

The learned first Appellate Court has dismissed the said appeal. The

learned first Appellate Court has recorded finding that the lease was not

granted for manufacturing purpose and that the same was validly

terminated vide notice dated 09/03/2002. The learned first Appellate

Court has dealt with the evidence and has concurred with the findings

recorded by the learned Trial court on reappreciation of evidence.

6. It will be pertinent to mention that while the appeal was

pending, the defendant filed an application for amendment of written

statement and memorandum of appeal vide Exh.52. The contention of

the defendant in the said application is that the possession of defendant

was not on land bearing Survey No.88, owned by the plaintiff but on

land bearing Survey No.86, which was owned by adjoining owner

Mr. Deshmukh. It is contended that in between land of Mr. Deshmukh

bearing Survey No.86 and land of the plaintiff bearing Survey No.88,

there is a Government land, which is a canal (Nala) bearing Survey

No.87. The contention of defendant in the amendment application is

that since the inception of tenancy i.e. in year 1969, the defendant was

not in possession of land owned by the plaintiff but in possession of SA 88 of 2024 - Judgment.odt

Survey Nos.86 and 87. The said application filed at Exh.52 was rejected

by the first Appellate Court vide order dated 12/10/2022. The

defendant also filed an application for appointment of Court

Commissioner vide Exh.55. The defendant contended that joint

measurement of the land bearing Survey No.86 owned by

Mr. Deshmukh, Government land bearing Survey No.87 and Survey

No.88, owned by the plaintiff was necessary to determine whether the

defendant was in occupation of land, owned by the plaintiff or land

owned by Mr. Deshmukh or Government land. The said application for

appointment of Commissioner was rejected vide order dated

24/01/2023. The defendant had also filed an application for review of

the aforesaid orders, passed below Exh.52 and 55 vide Exh.61. The

learned first Appellate Court had passed an order, stating that the

application for review would be decided at the stage of final hearing.

The application for review is dealt with by learned first Appellate Court

in the judgment. It is observed that the plaintiff had come up with a

case that the defendant was her tenant with respect to land bearing

Survey No.88 and that the defendant had admitted the said contention.

In view of such observation, the learned first Appellate Court has

rejected the application for review while delivering the judgment. The

learned first Appellate Court has found that the plaintiff had come up

with a case that she was owner of land bearing Survey No.88, which SA 88 of 2024 - Judgment.odt

was let out to the defendant. It is held that the earlier orders were

rightly passed having regard to the subject matter of the suit, which was

a suit filed by the landlady for eviction against the lessee/tenant.

7. Dr. Renuka Sirpurkar, learned Advocate for the appellants

has restricted her submissions to the identification of property and

applicability of the Maharashtra Rent Control Act, 1999.

8. Her contention is that the measurement of land of

Mr. Deshmukh bearing Survey No.86 has revealed that the Sawmill of

the defendant is located in Survey No.86. The contention of the learned

Advocate is that since admittedly the plaintiff is owner of Survey No.88,

the decree cannot be executed in order to recover possession of land

bearing Survey No.86, which is owned by Mr. Deshmukh or Survey

No.87, which is Government land, intervening between land of

Deshmukh and plaintiff. The learned Advocate criticizes the findings

recorded by learned first Appellate Court and contends that the most

crucial aspect of the matter is not taken into consideration by the

learned first Appellate Court, i.e., the plaintiff, who is not the owner of

land bearing Survey Nos.86 and 87, cannot seek decree of eviction and

possession against the defendant with respect to the said lands. Her

contention is that measurement of the properties in question was

necessary to determine as to whether the possession of defendant is

over land bearing Survey Nos.86, 87 or Survey No.88.

SA 88 of 2024 - Judgment.odt

9. Per contra, Mr. S.A. Deole, learned Advocate for the

plaintiff contends that the defendant was inducted as tenant by the

plaintiff's husband. The defendant has categorically admitted landlord-

tenant relationship in the written statement. He draws attention to 7/12

extract with respect to suit property and contends that the said

document shows existence of Sawmill of the defendant in the suit

property. He draws attention to the fact that this document is filed on

record by the defendant in the execution proceeding. He argues that in

a dispute between landlord and tenant, the landlord is entitled to a

decree for eviction and possession, even if, ownership is not proved. He,

therefore, contends that the judgment and decrees concurrently passed

by both the learned Courts do not warrant any interference.

10. In order to deal with the controversy, it will be appropriate

to refer to the written statement of the defendant. The defendant has

made a categorical statement in paragraph 11 of the written statement

that in the year 1969, the plaintiff had leased out the whole area, which

is in his occupation towards the Southern side of Ramtek-Tumsar road.

The defendant stated that the possession of land was not handed over

by measurement but by fixing boundary marks. The defendant has,

thus, categorically admitted that he was inducted in the land in his

possession as a lessee by the plaintiff. Most importantly, he has stated

that the land was placed in possession by reference to boundaries. It SA 88 of 2024 - Judgment.odt

will be pertinent to state that the defendant, even in the application for

amendment of written statement, filed before the learned first Appellate

Court, does not contend that either Mr. Deshmukh or the Government

had granted lease to him. It will be appropriate to refer to the statement

in the application for amendment, wherein the defendant has stated

that he is not in possession of land bearing Survey No.88, owned by

plaintiff but in possession of land bearing Survey Nos.86 and 87, which

are owned by Mr. Deshmukh and Government respectively. The

defendant has stated that he is in possession of Survey No.87 since the

year 1969. He then states that the plaintiff, posing herself as owner,

executed lease in his favour with respect to the said land. Thus, the

defendant, in a sense, states that possession of Survey No.87 was taken

by him from the defendant. It will also be pertinent to state that the

defendant has not come up with a case that he was inducted as a tenant

by Mr. Deshmukh or Government.

11. It will be pertinent to state that in a case of eviction and

possession, filed by landlord against the tenant, the title of landlord

over the leasehold property is not material. The relevant consideration

is as to whether landlord-tenant relationship between the parties exists

and grounds to seek eviction are established. Reference in this regard

can be made to judgment of the Privy Council in the case of Musammat SA 88 of 2024 - Judgment.odt

Bilas Kunwar Vs. Desraj Ranjit Singh, reported in AIR 1915 PC 96,

wherein it is held as under :-

"The other point in the case is one of estoppel. The property was let by the Plaintiff to the Defendant Ranjit Singh; he was let into possession by the Plaintiff's gardener Bhairon, on her behalf and by her direction, and he regularly paid rent to her and applied to her to do all the necessary repairs; he has never given up possession to her although he duly received notice to quit, and he has denied her title. Sec. 110 of the Indian Evidence Act is perfectly clear on the point, and rests on the principle well established by many English cases, that a tenant who has been let into possession cannot deny his landlord's title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord."

12. Similar view is taken in the case of S.K. Sarma Vs. Mahesh

Kumar Verma, reported in (2002) 7 SCC 505. Relevant observations in

paras 13 and 14 are reproduced herein below : -

"13. Further, the contention of the learned Senior Counsel for the respondent that the railway administration has to prove that the property in question was belonging to it before invoking Section 138 is totally misconceived because once it is admitted that the respondent was given possession of the premises in question by order dated 17-1-1967 as he was entitled to the same while working as CPRO of the Department, he could not be permitted to deny the title of the railway administration. Admittedly, the respondent was inducted because he was in railway service. Now, he is estopped from SA 88 of 2024 - Judgment.odt

challenging the title of the appellant over the premises in question.

14. The second part of the aforesaid section clearly provides that no person who came upon any immovable property by the licence of the person in possession thereof shall be permitted to deny the title to such person to such possession of the property. He cannot deny the same during the pendency of such licence or sub-lease. Such estoppel continues to operate so long as the licensee or sub-tenant has not openly restored possession by surrender to such person. This rule of estoppel would cease to operate only after such licensee or sub-tenant has been evicted. This position does not require reference to many judgments. However, we would refer to the decision in S. Thangappan v. P. Padmavathy in which the appellant tenant who was running an automobile workshop since 1962 disputed the title of the respondent landlady on the ground that a certain Devasthanam was the actual landlord. This Court held that Section 116 of the Evidence Act, 1872 puts an embargo on a tenant of an immovable property, during the continuance of his tenancy to deny the title of his landlord at the beginning of his tenancy. The significant words under it are "at the beginning the tenancy". So a tenant once inducted as a tenant by a landlord, later cannot deny his landlord's title. However defective the title of such landlord may be, such tenant cannot deny his title."

13. It will also be profitable to refer to the judgment of the

Hon'ble Supreme Court in the case of Kanaklata Das and others Vs.

Naba Kumar Das and others, reported in (2018) 2 SCC 352. The SA 88 of 2024 - Judgment.odt

relevant observations in the said judgment are reproduced herein below

for ready reference : -

"11. There are some well-settled principles of law on the question involved in this appeal, which need to be taken into consideration while deciding the question which arose in this appeal. These principles are mentioned infra:

11.1. .....

11.2. Second, the landlord (plaintiff) in such suit is required to plead and prove only two things to enable him to claim a decree for eviction against his tenant from the tenanted suit premises.

First, there exists a relationship of the landlord and tenant between the plaintiff and the defendant and second, the ground(s) on which the plaintiff landlord has sought defendant tenant's eviction under the Rent Act exists. When these two things are proved, the eviction suit h succeeds.

11.3. Third, the question of title to the suit premises is not germane for the decision of the eviction suit. The reason being, if the landlord fails to prove his title to the suit premises but proves the existence of relationship of the landlord and tenant in relation to the suit premises and further proves existence of any ground on which the eviction is sought under the Tenancy Act, the eviction suit succeeds. Conversely, if the landlord proves his title to the suit premises but fails to prove the existence of relationship of the landlord and tenant in relation to the suit premises, the eviction suit fails. (See Ranbir Singh v. Asharfi Lal)"

14. Thus, the legal position in this regard is no longer res

integra and is well settled by catena of judgments of the Hon'ble

Supreme Court. It is beyond pale of any doubt that in a suit filed by SA 88 of 2024 - Judgment.odt

landlord against the tenant for eviction, even if, the landlord is unable

to prove his ownership, decree for possession must follow, if the

landlord-tenant relationship is established and grounds for eviction are

made out.

15. In the light of the aforesaid, what is relevant is that

whether landlord-tenant relationship exists between the parties. If

existence of landlord-tenant relationship is proved, then the question of

title would be completely immaterial. In the written statement, the

defendant has categorically admitted landlord-tenant relationship. In

the earlier round of litigation also, the defendant admitted the landlord-

tenant relationship. Most importantly, in the application for

amendment, although the defendant claims to be in possession of

Survey No.86, owned by Mr. Deshmukh and Survey No.87, which is

Government land, he does not state that he was inducted in the

property by Mr. Deshmukh or the Government. Even in the application

for amendment, the defendant has categorically stated that the

possession of said land was received by him from the plaintiff in the

year 1969, when the tenancy was created. What is material is that the

defendant has come up with a specific case that the land in his

possession was demarcated by boundaries and not by measurement

when possession thereof was given to him as a lessee by the plaintiff,

acting as lessor. This implies that the possession of entire land is SA 88 of 2024 - Judgment.odt

received by him as a lessee from the lessor i.e. the plaintiff. It is also

important to state that it is not the case of defendant that he, on his

own, has committed encroachment over Government land bearing

Survey No.87 or land of Mr. Deshmukh bearing Survey No.86 and is in

possession of any land, in addition to the land, which was received by

him from the plaintiff as lessee of the plaintiff. Thus, assuming that the

defendant is in possession of Survey Nos.86 and 87, and that the

plaintiff is not owner of the said survey numbers, yet decree for eviction

needs to be maintained. In the case at hand, the defendant has not

disputed landlord-tenant relationship at all even in the application for

amendment before the first Appellate Court. The lease is validly

terminated by a clear 15 days notice. Therefore, a decree for eviction

and possession passed by the learned Trial Court, which is confirmed by

the learned first Appellate Court does not warrant any interference on

this ground.

16. At the outset, it must be stated that the provisions of the

Maharashtra Tent Control Act, 1999 although they are applicable to

areas located within Municipal limits of Ramtek Municipal Council, the

defendant cannot claim protection of Rent Act, since the lease is with

respect to an open land. The construction on the open land is made by

the defendant/lessee. In this regard, reference needs to be made to SA 88 of 2024 - Judgment.odt

definition of the term "premises", as defined under Section 7 (9) of the

Rent Act, which reads as under :-

"7 (1).....

(2).....

(3)....

(9) "premises" means any building or part of a building let or given on licence separately (other than a farm building) including.-

(i) the gardens, grounds, garages and out-houses, if any. appurtenant to such building or part of a building,

(ii) any fittings affixed to such building or part of a building for the more beneficial enjoyment thereof, but does not include a room or other accommodation in a hotel or lodging house."

The definition clearly contemplates that "premises" means

any building or part of the building let or given on licence. Therefore, in

order to attract the provisions of Rent Act, lease must be with respect to

a building. It must also be stated that there is also a reference to

gardens, grounds, garages and out-houses in Section 8 (9) (i). However,

the said words are used in conjunction with words "appurtenant to such

building". The words "such building" will mean building, which is let or

given on licence. Thus, any open land will fall within the definition of

the term "premises", if and only if it is appurtenant to any building let

or given on licence. It is nobody's case that building was given on lease.

SA 88 of 2024 - Judgment.odt

The building is constructed by the tenant himself on open land, which