The High Court dismissed the appeal against findings regarding recovery of possession and rent. It rejected the defence of part performance under the Transfer of Property Act and held that accepting rent post-termination does not revive tenancy.
The appeal was dismissed with costs against the appellant.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1
IN THE HIGH COURT OF JUDICATURE AT
BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 393 of 1991
Date of decision:9/7/2009
For approval and signature:
HON'BLE MR. JUSTICE K.U.CHANDIWAL
1.Whether the Reporters of Local Papersmay be allowed to see the Judgment ? |
Yes/ |
|---|---|
2. To be referred to the Reporter or not ? |
No |
3. Whether Their Lordships wish to seethe fair copy of the Judgment ? |
/No |
4. Whether this case involves a substantialquestion of law as to the interpretationof the Constitution of India, 1950, orany order made thereunder ? |
/No |
5. Whether it is to be circulated to theCivil Judges ? |
/No |
6. Whether the case involves an importantquestion of law and whether a copy ofthe Order should be sent to Bombay,Goa and Nagpur Office ? |
/No |
(A.G.Paralikar)
Private Secretary
office/sa393-91
2
IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD
SECOND APPEAL NO.393 OF 1991
Himmatrao s/o Wamanrao Ambhore,
died, his L.Rs.
APPELLANT
...Original
Defendant no.1.
a) Smt.Bakulabai w/o Himmatrao Ambhore, Age 60 years, Occ. Household, r/o Ambad, District: Jalna.b) Ambadas s/o Himmatrao Ambhore, age 30 yr., Occ. Student, r/o as above.c) Ratnamala w/o Shriram Kolte, age 30 yrs, Occ. Household, r/o as above.d) Meena w/o Ramesh Thaker, age 25 yrs, occu. Household, r/o.N-2, P-e/20/8, CIDCO, A’bad.e) Kalpana w/o Suresh Kunte, age 23 yrs, occ. Household, r/o Bodhegaon, Tq. Kannad, A’bad.f) Rekha w/o Raju Nikam, age 20 yrs, Occu. Household, r/o Kannad, Dist. Aurangabad.g) Mangal d/o Himmatrao Ambhore, Age 20 yrs, occu. Student, r/o Ambad, Tq. Ambad, Dist. Jalna.(Amendment made as per Additional
Registrar’s order dt.19.8.1992 in Civil
Application No.2989/92, Second Appeal
No.393/91).
APPELLANT
3
VERSUS
1. Ragwan Sharifa w/o Habib Mahasan, died, per L.Rs.
1A) Alwi w/o Mhaisan Chaus;1B)Ali s/o Mahaisan Chaus,
1C) Abdulla s/o Mahaisan Chaus;1D) Sheka Sharifa d/o Hamdu;1E) Johre w/o Habib Ali;2. Habib Alibi s/o Habib Salhe
(Original Plaintiffs 1A to 1E and
original Defendant No.2.)
...RESPONDENTS
Mr. S.R.Deshpande, Adv., h/f Mr. R.D.Deshpande,
Advocate, for the appellant.
Mr.V.M.Kagne, Adv., h/f Mr. S.S.Chaudhari,
Advocate, for respondent nos. 1(a), 1(b), 1(d),
1(e), 2.
Respondent no.1c served.
ORAL JUDGMENT :
1.Heard Counsel for the parties. The
concurrent findings recorded against the original
defendant no.1 in RCS No.193/1980, followed in
RCA No.147/1984, are the subject of challenge in
the Second Appeal.
4
2.Second Appeal is admitted on 22.8.1991
on following substantial questions of law between
the parties:
“2.That, lower Appellate Court has
reversed the findings of trial Court in
respect of rate of rent and accepted the
caseofpresent
Appellant as such the case of the
Respondent No.1 that of wilful default
cannot stand and as such no decree can
be passed on this ground.
7)That, the Respondent no.1 has
accepted the rent even after issue of
notice as such the Respondent no.1 has
waived the right for determination of
lease.
8)That, the Appellant is entitled
to protection under Section 116 of
Transfer of Property Act. “
3.The plaintiff sought recovery of
possession of a block of three rooms and also
rentals as damages in lieu of the user. The
defendant no.1 admitted ownership of the
plaintiff, however, put up a stand that he was
inducted by defendant no.2 on the rent of Rs.30/-
per month. He denied any arrears against him as
he has paid the rentals upto 30th June, 1979, to
the plaintiff through defendant no.2. He
accepted that rentals are due from July, 1979.
The another contention that was raised by the
defendant no.1 was that there was an agreement
between the plaintiff and defendant no.1 to
purchase the property and earnest of Rs.2500/-
5
was received. Defendant no.1 asserted, that he
was ready to perform his part of the contract.
4.It is a matter of record, there is
nothing beyond assertion of defendant no.1 about
parting of Rs.2,500/- as earnest or any relief
claimed in the proceedings. Consequently, no
weightage can be attached to the contention of
agreement of purchase.
5.The evidence on behalf of the plaintiff,
as analysed by the Courts, needs no further
dissection as the contention of the defendant no.
1 having been inducted through defendant no.2 has
been proved to be false. Though some
remittances were made by defendant no.1 through
defendant no.2, the plaintiff did not challenge
the same.
6.Defendant no.1, apparently, did not
establish that he was clear in his rentals till
June, 1979, nor there is evidence from defendant
no.2 having received the amount from defendant
no.1 or that he has paid over such amounts to the
plaintiff. There should not be any controversy
that the house belonging to the plaintiff was
leased to the defendant no.1. The defendant no.
1, apparently, failed to establish the
contractual relations between him and the
defendant no.2 as landlord and tenant. Such
stand is, apparently, an afterthought, to wriggle
out his solemn undertaking against the landlord
or the owner of the property.
6
7.In the First Appeal, a benefit was
sought to be taken in terms of Section 53A of
Transfer of Property Act. However, the same was
also negatived, the learned first appellate Court
has rightly observed that the request for remand
of the matter was not the answer to the point in
question. There was, obviously, breach of
stipulation required under Section 53A to put
them in acceleration and, consequently, this
defence could not have been further coined. The
evidence available on record having been
sufficientlyandsubstantiallyanalyzed,
indicated that the defendant no.1, the appellant,
was in arrears of rentals, however, on
calculation, the learned first appellate Court
has corrected it to be Rs.1170/-. The
acceptance of the rentals by the landlord after
termination of tenancy will not tantamount to
continuation of the tenancy as it is only a
holding over, will not brand him as a tenant. The
contention that reversal of finding about
acceptance of rent by itself will give a ground
for remand is again difficult. The substantial
grounds formulated are answered against the
appellant. The appeal is dismissed with costs.
( K.U.CHANDIWAL)
JUDGE
agp/sa393-91
2 issues framed by the court
Whether the defense under Section 53A of the Transfer of Property Act applies where there is a breach of stipulation regarding earnest money.
Whether the acceptance of rent by the landlord after termination of tenancy constitutes a continuation of the tenancy relationship.
2 provisions across 1 enactments
Himmatrao s/o Wamanrao Ambhore L.Rs.
Ragwan Sharifa w/o Habib Mahasan L.Rs.
Habib Alibi s/o Habib Salhe
K.U.Chandiwala
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court