M/s Silver Jublee Dryers and Cleaners. Shri Joe Vincent Fernandes, since deceased v. Hiralal Nemichand Shah

JUDGMENT: JUDGMENT: ..Petitioners. ..Respondents. . This petition is directed against the judgment

11.7.1997 passed 9th Additional District Judge, Pune, Civil Appeal No. 290/1991, confirming judgment

12.4.1991 passed Principal Judge, Small Causes Court, Pune, Civil Suit No. 1001/1988, dismissing plaintiff (2) recover possession premises defendant directing enquiry regarding profits, in accordance with provisions of Order 20 Rule 12 of the Code of Civil Procedure Code. Facts: Background Facts: Background Facts: Background

The undisputed background facts brought on record Shri Jivraj Bapuchand Gujarathi original property. He one sister by name Smt. Sonubai Bhalchand Doshi and wife Smt. Putalabai,

It appears that Sonubai had adopted a son by Shri Nemichand Bhaichand Doshi, sons by name Hiralal and Maniklal i.e. original plaintiff Nos. 1 & 2.

It further appears that, aforesaid Sonubai,

30.11.1968, bequeathed property (Shop) premises formed part; admeasures (approx.) 190 sq.feet. admeasuring 100 sq.ft House No. 331, Sachapir Street, Pune- 411 001 ( the ‘suit premises’), in favour of her grand sons, the present plaintiffs.

Factual matrix further reveals that Smt. Putalabai adopted Shri Ashok Mahale (3) son. She Civil Suit No. 22nd July, 1946 against Sonubai claiming property belonged Late Jivaraj Gujarathi. On

30.6.1948 dismissed. Appeal carried therefrom Civil Appeal No. Putalabai allowed a result thereof, Putalabai was declared as owner of the suit property. (Ex.185).

It further appears that on 18.4.1963, one Suit No. instance

Smt. Sonubain against Smt. Putalabai’s Shri Ashok Mahale a declaration a legally adopted Putalabai (Ex.106). The dismissed

15.1.1965 (Ex.174). Appeal carried therefrom Civil Appeal No. 220 1965 Sonubai allowed judgment

23.2.1967 (Ex.91); how, Smt. Sonubai came to be declared as legal heir of deceased Putlabai by first appellate Court.

It further appears that sometime in the year 1967; Shri Ashok Mahale Second Appeal No. 447 The 1967 Court challenging decree. appeal admitted Court. On 9th October, 1974 Sonubai died. Since brought record Sonubai’s demise, (4) Second Appeal dismissed abated, result decree passed by first appellate Court in Appeal No.226/1965 came to be confirmed. leading to present litigation: Facts leading to present litigation: Facts leading to present litigation: Facts

The cause for the present litigation is the notice

22.5.1988 issued plaintiffs terminating tenancy tenant defendant (Ex.72) section 106 Transfer Property Act calling vacant possession premises. No.2 The defendant No.2 replied notice

7.6.1988, denying relationship landlord tenant questioned plaintiffs (Ex.73). The plaintiffs replied defendants’ contending liable evicted denied plaintiff and, thereby forfeited be a tenant of the suit premises and consequent protection of Bombay Rent Act.

The defendants again replied plaintiffs letter on 26.7.1988 reiterating denial of the title of the landlords/plaintiffs.

The aforesaid attack and counter attack resulting denial title, ultimately a (5) Civil Suit No.1001/11988 eviction ground disclaimer title, nuisance, reasonable and bonafide requirement of the plaintiffs- landlords.

The Judge of the Small Causes Court, Pune, pleased decree ground disclaimer judgment

12.4.1991. The aforesaid judgment decree a subject matter Civil Appeal No. preferred petitioners-appellants original defendants before District Judge Pune. The District Judge judgment

11.7.1997 dismissed appeal, decree eviction passed Court confirmed; how; result, petitioners-defendants have suffered concurrent findings of fact at the hands of the courts below.

Being aggrieved by the aforesaid judgment decree passed Courts petitioner invoked writ jurisdiction of this Court under Article 227 of the Constitution of India. Submissions: Submissions: Submissions:

Shri Gokhale, learned Counsel appearing for petitioners submitted decree eviction passed erroneous liable (6) aside. He submits premises originally Shri Jivraj Bapuchand Gujarathi (Doshi). In submission, Hiralal Maniklal, original landlords. The premises defendant No.3. That plaintiffs claiming Sonubai, itself claiming derivative title. In submission, prohibition section 116 Evidence against denial original landlords derivative title. He submits denial derivative cannot result forfeiture tenancy. Shri Gokhale support submission, placed reliance various judgments, learned Single Judge judgments Court LenaLenaLena Periera Periera Periera vs. vs. vs. Mary Mary Mary Boirachok Boirachok Boirachok 1991 Mah.L.J. 1991 Mah.L.J. 1991 Mah.L.J. Apex Court Subhash Chandra Mohammad Sharif (1990) 1 SCC 252; Mangat Ram 761 761 761 vs. vs. Sardar Meharban Singh (1987) SCC 318; D.Satyanarayana vs. P. Jagdish (1987) 4 SCC 424; Tej Bhan Madan vs. II Addl. District Judge & ors. (1988) 3 SCC 137.

Shri Gokhale also urged that denial of title landlord a ground eviction tenant available Bombay Rent Act. He further submits denial (7) neither foundation eviction at any stage of proceedings the said issue was raised in the said suit between the parties.

Shri Gokhale tried to impress upon this Court during course hearing denial denial derivative landlord. According him, disclaimer landlords always understood denial original landlord owner. He, thus, submits impugned judgment, decree being erroneous in law is liable to be quashed and set aside.

Per contra, Shri Naik, learned Counsel for respondent submits scheme Rent Act; section 13 prescribes certain grounds eviction available landlord recovery possession tenanted premises. In submission, legislation, mandates landlord establish grounds mentioned section 13; entitled decree eviction. He submits hand, section 12 Bombay Rent obligation tenant observe Act perform condition tenancy. Unless tenant complies requirement, cannot benefit or protection of the provisions of the (8) Bombay Rent Act.

Shri Naik submits that a conjoint reading of sections 12 13 Bombay Rent Act tenant willing standard permitted increases observe perform conditions tenancy consistent provision Bombay Rent Act; cannot evicted tenanted premises irrespective Transfer Property Act provides. therefore, follows acceptance It, relationship landlord tenant between parties. In other words, a implicit tenant, disclaims denies landlord’s liable evicted ground disclaimed denied landlord’s title. In submission Shri Naik, a ground consistent provisions Bombay Rent Act because acceptance relationship landlord tenant applicability provisions Rent Act, qualifies tenant protection Act exclusion section 111 Transfer Property Act; otherwise liable evicted. He submits, tenant denies landlord; demised premises or with whom privity contract himself a (9) someone a property, unhesitatingly observed basic and fundamental conditions of the tenancy as such entitled to the umbrella of Bombay Rent Act.

Shri Naik further submitted that any protection provisions Rent Act tenant accepts relationship landlord tenant. The moment denies it; he must committed breach essential condition tenancy which qualifies him for protection under section (i) of section 12 of the Bombay Rent Act. Smt.

Shri Naik further submitted that in the present conclusively established documentary evidence father tenant possession premises Sonubai. He submitted demise Sonabai bequeathed premises sons; tenancy attorned; and, proved evidence defendants continued present plaintiffs 1988 i.e. filing subject suit. Therefore, keeping aspects defendants-tenants clearly estopped denying present plaintiffs (10) landlords premises. Consequently, decree of eviction suffered by the petitioners-tenants cannot be faulted with.

Shri Naik further submitted that another glaring evidence affidavit defendant No.2, 14th January, 1988 (Exh.105) proved evidence, wherein defendant No.2 unequivocally accepted plaintiffs landlords. This coupled rent-note 15th November, 1945 executed Defendant No.3 favour Late Sonubai clearly established defendant No.3 obtained premises business running dry cleaners. In submission Shri Naik, clearly belies contention defendants-petitioners plaintiffs landlords. He submits detail Courts examined evidence arrived a correct conclusion, therefore, interference Court ordinary jurisdiction Article 227 Constitution of India is warranted. He, thus, prayed for dismissal of the petition. Consideration: Consideration: Consideration:

Before considering rival submissions it is (11) necessary pleadings Court. If one turns to plaint allegations, the pleadings in the plaint are as under: Sachapir executed developed superior (1) The property bearing House N. Street, Sonubai 1971 Pune, Bhaichand leaving originally Doshi behind a though holder i.e. plaintiff 331 belonged property property. (2) .............. premises alone, defendant No.1. purposes, No. defendant tenancy month. defendant 1988 (3) The defendant premises was No.1, leased defendant No.3. proprietor The purposes conducted No.3 However, business defendant defendant various 2 No.1. expires The Rs.25/- beginning gregorian defendant The No.2 plaintiff No.1 No.2. records, present For month, commences premises No.1 calendar through laundry defendant defendant advance December order. "

Aforesaid allegations were denied by respondent Nos. 3, 5 6 filing written statement; whereas defendant Nos. 2 4 separate written statement. Pleadings written statements identical. For purposes deciding petition, common and identical pleadings which are (12) relevant are reproduced hereinbelow. "These defendants bearing Pune Bhaichand The House No. originally 1 Doshi,

1971. defendants property 331 belonged These defendants Sonubai developed owner) true. Further Assuming allegations ( property holders superior plaintiffs cannot property without a admitting obtaining Court The without present probate rejected Sonubai, action liable Sachapir executed i.e. a competent Hon’ble property Street, Sonubai will. property plaintiffs. plaintiffs respect probate jurisdiction. entertain able Court. "

with the aforesaid pleadings on record, the trial Court was pleased to frame issues. Two of them relevant to the question raised read as under: Issues Issues Issues (4). Whether it is proved that the plaintiffs are the landlords of the suit premises. (5). whether it is proved that the defendant No.2 has denied the title of the plaintiffs with respect to the suit premises and as such, the plaintiffs are entitled to claim possession of the suit premises?

Parties to the suit led oral as well as documentary evidence before Court. It necessary discuss entire evidence brought record. However, relevant tenant- present petitioners - Shri Joe (13) Fernandez, affidavit before Cantonment Authority

14.1.1988 electric connection. He No. stated therein premises House 331 Sachapir Street, Pune-1 belonged Maneklal Nemichand Doshi. The premises person, monthly tenant premises 1935, paying @ Rs. 30/- p. m. This affidavit produced by the plaintiffs. The same was proved. It came to be exhibited as Ex. 105.

Money order receipts more than 17 in number available record, marked Ex. 53 56 (colly.); evidencing payment Shri Joe Fernandes to the present plaintiff respondents herein.

One of the petitioners Shri Joe Fernandes written letter Shri Hiralal Nemichand Doshi, plaintiffs, wherein admitted Hiralal landlord Hiralal remitting a tenant. The said original letter is available on record of the trial Court and marked as Ex.9.

At this juncture, it will not be out of mention Shri Gokhale evidence record present (14) plaintiffs original landlords and, therefore, taking advantage doctrine forfeiture required is: denial original landlord person becomes landlord derivative title. As against this, Shri Naik having accepted present plaintiffs landlords having relationship remitting rent, coupled evidence, tenant-petitioners plaintiffs. According him, one in hand have also been covered under section 116 of the Evidence Act.

In order to consider the above rival submissions, necessary survey well settled legal principles enunciated from time to time and presently holding the field.

The Apex Court in the case of Sheela vs. Firm Prahi, AD Rai Prem Prakash (2002) 3 SCC 375 has ruled as under: . "After the creation of tenancy if the title of landlord is transferred or devolves upon a third person the tenant is not estopped from denying such title. However, if the tenant having been apprised of the transfer, assignment or devolution of rights acknowledges the title of transferee either expressly or by paying rent to him, the rule of estoppel once again comes into (15) operation for it is unjust to allow the tenant to approbate and reprobate and so long as the tenant enjoys everything which his lease purports to grant, how does it concern him what the title of the lessor is? (See Tej Bhan Madan v. II ADJ (1988) 3 SCC 137).A denial of title which falls foul of the rule of estoppel contained in section 116 of the Evidence Act is considered in law a malicious act on the part of the tenant as it is detrimental to the interest of the landlord and does no good lease to himself.

The Apex Court in the case of J.J.Lal Pvt. Ltd vs. M.R.Muraliand (2002) 3 SCC 98, held as under: "A plea taken by the defendant in the written statement can itself be made a ground for allowing relief to the plaintiff, subject to well-known limitations. The plea taken in the written statement should by itself be enough as furnishing a ground for relief to the plaintiff, the plea taken by the defendant does not stand in need of any further pleadings being joined by the party; an issue is framed and put to trial unless the facts of the case show that the parties actually went to trial fully alive to the real issue between them and had an opportunity of adducing evidence, that is, the parties know that the plea taken in the written statement too was the subject matter of trial and could form the basis for relief to the plaintiff. In such case, though the pleadings may be lacking or there may be a failure to frame an issue or a specific issue, the applicability of the law laid down by the Supreme Court in Nagubai Ammal vs. Shama Rao AIR 1956 SC 593 would be attracted. " (Emphasis supplied) (17)

The ratio of the aforesaid 2 judgments referred hereinabove unequivocally tenant apprised transfer landlord acknowledged transferee, expressly impliedly paying him; estoppel operation. The tenant permited approbate reprobate challenge relationship landlord tenant. That denial written statement foundation decree eviction. Following principles holding field, applying circumstances hand, petitioners- tenants denied plaintiffs- petitioners- landlords, landlord ship premises. It would, thus, denial bonafide. It protract litigation. Both Courts rightly a denial tenants forfeited tenancy plaintiffs entitled possession premises. No findings recorded. The findings recorded Courts supported evidence record. The Courts a reasonable possible view. This Court, not being a Court of appeal is not expected to reappreciate the evidence. (18)

Having said so, it is necessary to take note judgment the Apex Court Laxmikant Laxmikant Laxmikant Revchand Revchand Revchand Bhojwani Bhojwani Bhojwani & & & anr. anr. anr. vs. vs. vs. Pratapsingh Pratapsingh Pratapsingh Mohansingh Mohansingh Mohansingh Pardeshi Pardeshi Pardeshi (1995) (1995) (1995) 6 6 6 SCC SCC SCC 576, 576, 576, 9, before considering rival submissions, wherein following observations were made: . " Before parting with this judgment, we would like to say that the High Court was not justified in extending its jurisdiction under Article 227 of the Constitution of India. The Act is a special legislation governing landlord-tenant relationship and disputes. The legislature has, in its wisdom, not provided second appeal or revision to the High Court. The object is to give finality to the decision of the appellate authority. The High Court under Article 227 of the Constitution of India cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes. "

Bearing in mind the above observations of Apex Court considering concurrent finding recorded Courts below, difficult conclusion impugned perverse. Cogent reasons appellate Court confirming findings recorded Court raised appeal. appellate Court appreciated evidence The (19) recorded findings affirmed findings recorded Court. No either petition during course hearing demonstrate evidence account Courts that any piece of evidence was misconstrued by the lower appellate Court.

In the above view of the matter, petition is without any substance. The same is liable to be dismissed.

At this stage, learned Counsel for the petitioner

31.3.2007 to vacate premises. Shri Naik objection time. Accordingly, petitioners vacate premises granted

31.3.2007 subject to: (i) filing undertaking Court within (ii) depositing entire arrears

30.9.2006 before 15th October, 2006 (iii) paying monthly Rs. 5,000/- (five thousand) before 10th succeeding adjusted future profits determined competent Court accordance law. The udnertaking signed members family/occupants house, failing decree holders shall be entitled to execute decree (20) in accordance with law.