Bombay High Court
Sheetal Sureshkumar Nahar And … vs Dr. Deelip Prabhakarrao … on 2 May, 2019
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.841 OF 2018 WITH SECOND APPEAL NO.842 OF 2018 WITH SECOND APPEAL NO.843 OF 2018 Sheetal s/o Sureshkumar Nahar and another … Versus … Dr. Deelip s/o Prabhakarrao Kharwadkar … Mr. A.N. Kakade, Advocate for the appellants Mr. G.K. Thigale (Naik), Advocate for the sole respondent … CORAM : SMT. VIBHA KANKANWADI, J. RESERVED ON : 07th MARCH, 2019 PRONOUNCED ON : 02nd MAY, 2019ORDER :
1 All these appeals have been filed by original defendants. SecondAppeal No.841 of 2018 challenges the Judgment and Decree passed in R.C.A.No.7/2016 dated 21.08.2018 by learned Adhoc District Judge-3, Beed, ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:39:03 ::: 2 SA_841,842,843_2018whereby the appeal filed by the original plaintiff for enhancement ofcompensation came to be allowed. The said appeal was filed by the originalplaintiff challenging the Judgment and Decree passed in Special Civil SuitNo.46/2006 by learned Civil Judge Senior Division, Beed dated 20.04.2010which was the suit for possession and compensation. The defendants weredirected to hand over the possession to the plaintiff and the compensationwas awarded for three years prior to the suit to the extent of Rs.1,44,000/-and the compensation is also awarded @ Rs.4,000/- per month from the dateof the decree till actual realization of the possession.2 Second Appeal No.842 of 2018 is filed by original defendantschallenging the Judgment and Decree passed in R.C.A. No.8/2016 passed bylearned Adhoc District Judge-3, Beed on 21.08.2018, whereby the appealfiled by them was dismissed. Defendants were directed to hand over thepossession of the suit property to the plaintiff and mesne profits to the extentof Rs.2,16,000/- and further direction to pay @ Rs.6,000/- per month fromthe date of the suit till actual possession. Defendants had challenged theJudgment and decree passed in Special Civil Suit No.46/2006 by learnedCivil Judge Senior Division, Beed dated 20.04.2010 which was the suit forpossession and compensation. The defendants were directed to hand over ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:39:03 ::: 3 SA_841,842,843_2018the possession to the plaintiff and the compensation was awarded for threeyears prior to the suit to the extent of Rs.1,44,000/- and the compensation isalso awarded @ Rs.4,000/- per month from the date of the decree till actualrealization of the possession.
3 Second Appeal No.843 of 2018 has been filed by the originalplaintiffs challenging the concurrent findings in Regular Civil AppealNo.164/2012 by learned Adhoc District Judge-3, Beed dated 21.08.2018,wherein the Judgment and decree passed by learned Civil Judge SeniorDivision, Beed in Special Civil Suit No.68/2006 dated 20.04.2010 waschallenged. The said suit was filed by the present appellants for specificperformance of the contract.
4 Since the basic pleadings of the parties in all the matters is oneand the same, at this stage of admission they are commonly dealt with.5 Heard learned Advocate Mr. A.N. Kakade for the appellants in allthe three matters and learned Advocate Mr. G.K. Thigale (Naik) forrespondent in Second Appeal Nos.841 of 2018 and 842 of 2018. He hasmade submissions in Second Appeal Nos.842 of 2018 and 843 of 2018, alsothough he made submissions in respect of Second Appeal No.841 of 2018 he ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:39:03 ::: 4 SA_841,842,843_2018has not filed his appearance. It will not be out of place to mention here thatSecond Appeal Nos.841 of 2018 and 842 of 2018 are arising out of sameJudgment of the Trial Court, but then plaintiff as well as defendants had filedthe appeal and those two separate appeals have been decided by twoseparate Judgments and therefore, there will not be any hurdle to observethat learned Advocate Mr. G.K. Thigale (Naik) has argued for the respondentin Second Appeal No.841 of 2018 also.
6 Learned Advocate for appellants has vehemently submitted thatrespondent in all the matters was plaintiff in Special Civil Suit No.46/2006and defendant in R.C.S. No.48/2006. It is not in dispute that he i.e. thepresent respondent is the owner of House No.2-12-7 situated at SubhashRoad, Beed admeasuring 1200 sq.ft.. Respondent had come with the case, inhis suit that he had given the said suit property to one Indarchand Jain inMarch, 1999 on rent @ Rs.6,000/- per month. Indarchand Jain had givensome advance rent but then in March, 2003 it was noticed by plaintiff thatsaid Indarchand Jain had illegally inducted defendant in the suit property.On inquiry, Indarchand Jain promised that defendant will vacate the suitpremises. Thereafter, defendants promised that they will vacate the suitpremises and prolonged the handing over of the possession to the plaintiff. It ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:39:03 ::: 5 SA_841,842,843_2018is stated that defendant is occupying the suit premises and illegally andunauthorizedly and they are conducting the shop in the same. Plaintiff hadasked Maharashtra State Electricity Distribution Company Limited, Beed tocut the electricity supply to the suit property. However, the defendantsapproached Consumer Forum and it was falsely contended that defendantshave purchased the suit property for Rs.7,00,000/-. With this case, when theplaintiff-respondent had come before the Court, then without going into theaspect, as to whether defendant had become tenant or not, both the Courtshave decided the matter. Further, the suit for possession only againstdefendant will not be maintainable. The suit was not filed under theMaharashtra Rent Control Act. Further, the First Appellate Court hasabsolutely not applied its mind to the facts as well as legal aspects involved inthe case. There is absolutely no compliance of Order 41 Rule 33 of CPC.Points for determination were not framed, instead of that ‘issues’ wereframed. This shows non application of mind. He relied on the decision inVishwas Balu and others vs. Ghasiram Ramratan Jajum and others, AIR1975 Bom. 278, wherein it has been held that –
“In a suit by the landlord for ejectment under Bombay Rent Act, the Trial Court framed as many as 11 issues of fact and found almost all of them in favour of the landlord, but in appeal against the ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:39:03 ::: 6 SA_841,842,843_2018 decree by the tenant, the District Judge considered only one issue and affirmed the decree without recording its decision on the other grounds covered by S. 12 or 13 of the Act, its judgment cannot be said to be a judgment of the first appellate Court at all within the meaning of O. 41 R.31, and there is no alternative for the High Court in a petition under Art. 227 of the Constitution but to remand the matter, with a direction to the District Judge to hear the appeal on merits and to decide the same according to law by riveting his attention not only on the points of controversy but by scrutinizing the evidence led thereon.”
7 It was further argued that, the learned Courts below have notconsidered that there was absolutely no evidence adduced by the plaintiff tofor grant of compensation. Oral evidence has not been considered at all.Therefore, the matters deserve admission. Further, in respect of SecondAppeal 843 of 2018, he submitted that both the Courts below have notconsidered the evidence that was led in suit for specific performance filed bythe appellants. The specific performance of the contract was based on oralagreement, which is allowed by law to be executed and therefore, oralevidence ought to have been scanned properly to arrive at conclusion, as towhether really such agreement to sell existed or not. The possession washanded over to the plaintiffs therein i.e. present appellants and thereafter byway of such agreement to sell it was confirmed and therefore the discretion ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:39:03 ::: 7 SA_841,842,843_2018ought to have been used in favour of the plaintiffs in that matter.8 Per contra, the learned Advocate for the respondent submitted inrespect of Second Appeal Nos.841 of 2018 and 842 of 2018 that plaintiff hadcome with a specific case that defendants are the ‘trespassers’. Though hehad handed over the property to Indarchand Jain as tenant, yet said Jain hadparted with the possession of the property unauthorizedly in favour of thepresent appellants and therefore, the said Court had the jurisdiction to tryand entertain the matter. He relied on the decision in Shaikh Jaber AbdulahJAI Sabah vs. Ravindra Mukund Chafe and another, 2014(4) Mh.L.J.,
132. In this case it was held that when the suit was filed for possessionagainst trespasser and not against tenant, defendant is a ‘stranger’ then theprovisions of Maharashtra Rent Control Act do not apply to such relationship.Jurisdiction of the Civil Court is not barred. Further reliance has been placedon Praful Manohar Rele vs. Krishnabai Narayan Ghosalkar and others,(2014) 11 Supreme Court Cases 316, wherein it has been held that – “The general rule regarding inconsistent pleas raised in the alternative is settled by a long line of decisions rendered by the Supreme Court. The law is that there is no absolute bar against taking of inconsistent pleas by a party. In cases where there is no inconsistency in the facts alleged a party is not prohibited from taking alternative pleas available ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:39:03 ::: 8 SA_841,842,843_2018 in law. If the plea raised by the tenant in his written statement is clear and unambiguous in a suit where one party alleged the relationship between the two to be that of licensor and licensee, while the other alleged the existence of a tenancy, only two issues arise for determination, namely, whether the defendant is tenant of the plaintiff or is holding the property as a licensee. If the court comes to the conclusion after the parties have lead their evidence that the tenancy has not been proved then the only logical inference is that the defendant was in possession of the property as a licensee. The case of the defendants in the present case was that they were in occupation of the suit premises not as licensees but as tenants. The appellant- plaintiff was, therefore, entitled on that basis alone to ask for an alternative relief of a decree for eviction on the grounds permissible under the Rent Control Act. Such an alternative plea did not fall foul of any of the requirements/tests laid down by the Supreme Court.”
9 He further relied on the decision in Jacinta De Silva vs.Rosarinho Costa and others, (2014) 4 Supreme Court Cases 534, whereinit was held that denial of title results in extinction of tenancy. He furthersubmitted that as regards the suit for specific performance of contract filed bythe appellant, the oral agreement was not proved by them which was statedto have been concluded on 15.12.2001. Plaintiff says that he paid entireconsideration amount and possession was given in pursuant to the oralagreement. Under such circumstance, the defendant/plaintiff/appellantcannot get the possession protected under Section 53-A of Transfer of ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:39:03 ::: 9 SA_841,842,843_2018Property Act, because it requires written agreement that too on the date ofthe said alleged contract i.e. 15.12.2001, when the possession was alsohanded over. Such written agreement required registration. No evidence hasbeen led by the appellants to prove that payment of consideration was madeby them and no explanation is given as to why they had not obtained anyreceipt. Conduct of the plaintiff therein is also required to be considered onlyafter the plaintiff-respondent had filed Special Civil Suit No.46/2006 at thattime, thereafter, suit for specific performance of the contract has been filed bythe appellants. Therefore, as regards Second Appeal No.843 of 2018, there isabsolutely no necessity to change the concurrent findings given by both theCourts below.
10 He relied on the decision in Raghavendra Swamy Mutt vs.Uttaradi Mutt, (2016) 11 Supreme Court Cases, 235, wherein it has beenobserved that the appeal under Section 100 of CPC is required to be admittedonly on substantial question/questions of law which is the fundamentalimperative. Further, in Dnyanoba Bhaurao Shemade vs. Maroti BhauraoMarnor, (1999) 2 Supreme Court Cases 471, it was held that – “Keeping in view the amendment made in 1976 High Court can exercise its jurisdiction under Section 100 of CPC only on the basis of ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:39:03 ::: 10 SA_841,842,843_2018 substantial questions of law which are to be framed at the time of admission of the second appeal and the second appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. A judgment rendered by the High Court under Section 100 of CPC without following the aforesaid procedure cannot be sustained”.
11 Though the stand taken by the parties and the story is basicallysame, it would be appropriate at this stage to segregate Second AppealNos.841 of 2018 and 842 of 2018 from Second Appeal No.843 of 2018 fordiscussion. In Second Appeal Nos.841 of 2018 and 842 of 2018, the originalplaintiff i.e. present respondent himself had come with the case that he as aowner/landlord of the suit property had given the suit property/premises toone Indarchand Jain in March, 1999 on rent @ Rs.6,000/- per month. Hehas also stated that he accepted the rent from Indarchand Jain in advance,but then when plaintiff came to know that Indarchand Jain had handed overthe property unauthorizedly to defendant in March, 2003 then he askedIndarchand Jain to vacate the premises, Indarchand Jain promised, so alsothe defendant promised but actual possession was not given. The basicquestion that was before the Trial Court, as to what was the relationship andwhether the suit before ordinary Civil Court was maintainable. Though aspecific issue has been framed that, whether plaintiff has proved that ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:39:03 ::: 11 SA_841,842,843_2018defendant is a trespasser, has been answered in the affirmative and so alsothe issue No.1 which was framed as, whether plaintiff has proved thatIndarchand Jain had inducted defendant without the permission of theplaintiff in suit property, is also answered in the affirmative. According toplaintiff-respondent, the relationship between him and Indarchand Jain andhimself was that of tenant and landlord. Therefore, it was incumbent on boththe Courts below to see what is the relationship between Indarchand Jainand defendant (present appellant). Whether he can be said to be trespasseror a sub-tenant. At the same time, the defendants’ contention was alsorequired to be considered. Defendants denied that they were inducted byIndarchand Jain, but it was contended that they obtained the possession onthe basis of agreement to sell. It is important to note that said IndarchandJain has not been examined at all by the plaintiff. But when he himself iscoming with a case that he had inducted some other person as tenant andfrom that tenant the defendant has taken possession, then it ought to havebeen considered by the Courts below as to whether the suit ought to havebeen brought under Maharashtra Rent Control Act and whether thejurisdiction of Civil Court would have been barred. There is absolutely nodiscussion from this angle by both the Courts below. The ratio laid down in2016 11 SCC 235 and 1999 2 SCC 471 cannot be denied. But the fact ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:39:03 ::: 12 SA_841,842,843_2018remains is that if it is shown that both the Courts below have not appreciatedthe evidence properly and the legal points involved in the same are notconsidered properly, then definitely a Second Appeal under Section 100 ofCPC is maintainable. No doubt, as a general rule, where there is concurrentfindings, this Court would be slow in proceeding with the matter. However,at the costs of repetition, it can be said that if it is shown that both the Courtsbelow have not considered the evidence as well as legal points correctly, thenthe Second appeal is maintainable. The ratio laid down in Gurnam Singh(D) by LRs. & Ors. vs. Lehna Singh (D) by LRs. in Civil Appeal No.6567 of2014 decided by the Apex Court on 13.03.2019 is required to be considered,wherein it has been observed that the existence of ‘a substantial question oflaw’ is a sine qua non for the exercise of the jurisdiction under Section 100 ofCPC. Reliance can also be placed on the decision in Kondiba DagaduKadam vs. Savitribai Sopan Gujar reported in (1999) 3 SCC 722, whereinit has been held that “In a Second Appeal under Section 100 of CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being :
(i) Contrary to the mandatory provisions of the applicable ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:39:03 ::: 13 SA_841,842,843_2018 law;
OR
(ii) Contrary to the law as pronounced by the Apex Court;
OR
(iii) Based on in-admissible evidence or no evidence.12 The plaintiff has come with a case that said Indarchand Jain hasunauthorizedly and illegally inducted defendant in the suit premises. Thenthe basic question is, as to whether without making Indarchand Jain as aparty to the proceeding and getting the premises from his possession whetherindependently suit for possession against defendant would lie, that too beforea Civil Court (not a Court under Maharashtra Rent Control Act). A note canalso be taken of a recent decision by Apex Court in C.A. No.11086 of 2018,Dr. R.S. Grewal and others vs. Chander Prakash Soni and anotherdelivered on 16.04.2019, wherein Apex Court has held that, “the protectionoffered to a statutory tenant by rent control laws can only be overcome byfollowing the procedure laid down in such laws, such a statutory tenant canbe evicted only by following procedure applicable in Rent Control Act and notby filing suit for possession against him or her”. In that case also one ShivdevKaur had let out a property to Chander Prakash Soni for rent. The life estategranted to Shiv Dev Kaur enabled her to create a tenancy and receive the rent ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:39:03 ::: 14 SA_841,842,843_2018from the tenants on the property. After Kaur died, the other heirs becameowners of the property. They filed the suit for possession against tenants onthe basis that tenant was trespasser after the death of Kaur. The Trial Courthad decreed the suit, but in Second Appeal the High Court had dismissed thesuit. The said decision in the Second Appeal was challenged before the ApexCourt, but then Apex Court has dismissed the appeal. Apart from this, theother points, those are involved in this case is, as to whether the Civil JudgeSenior Division can be said to be a proper Court to try and entertain the saidsuit, if at all it can be held that the defendant is held to be not a trespasser.Therefore, definitely though there is a concurrent finding, case is made out toadmit the appeal. As regards compensation is concerned, definitely it wouldbe related to the question, as to whether defendant can be termed astrespasser and as regards quantum is concerned, it being question of fact itwill not be within the scope of Section 100 of CPC. Therefore, the substantialquestions of law would be limited to the entitlement only. Following are thesubstantial questions of law :
1 Whether the possession of the defendant over the suit premises was as ‘trespasser’ or ‘sub-tenant’, being unauthorizedly inducted by tenant Indarchand Jain ? ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:39:03 :::
15 SA_841,842,843_2018 2 Whether both the Courts below failed to consider the provisions of Maharashtra Rent Control Act to the suit property and whether the suit was maintainable before Civil Court, that too before Civil Judge Senior Division ?
3 Whether original plaintiff was entitled to get compensation? 4 Whether interference is required in the findings given by the Courts below ?13 Now turning towards the Second Appeal No.843 of 2018 it is tobe noted that the appellants were the original plaintiffs. They had come withthe case that there was oral agreement dated 15.12.2001 and they had paidamount of Rs.1,00,000/- to the defendant on that day and thereafter, furtheramount of Rs.6,00,000/- was also paid. It is also stated that the possession ofthe property was taken on 15.01.2001. Interesting point to be noted is thatin the plaint, when the plaintiffs had come with the case that entire amountof consideration was paid to the defendant, then there ought to have beenexplanation, as to why no sale deed was got executed on that day itself.
There is absolutely no explanation as to why any agreement to sell or writtendocument was not got executed, in respect of receipt of amount of ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:39:03 ::: 16 SA_841,842,843_2018Rs.1,00,000/- plus Rs.6,00,000/- was not taken. No doubt, oral agreementto sell is admissible, but then it has to be proved properly. Further, there issubstance in the submission on behalf of respondent that when it is statedthat as per the oral agreement possession was also handed over, then itcannot be said to be a legal transaction. If possession is obtained by way ofagreement, then there has to be an agreement in writing, that too on asufficient stamp paper and it should be a registered instrument. In absenceof these the plaintiffs were not entitled to get protection of possession underSection 53-A of Transfer of Property Act.
14 As regards the factual aspect is concerned, both the Courts belowhave held that plaintiffs have failed to prove that they had handed over in allRs.7,00,000/- to the defendant. Furthermore, plaintiffs cannot be said to beready and willing to perform their part of consideration, taking intoconsideration that as per their own say entire amount was paid on15.12.2001 and till 18.11.2006 no steps were taken by the plaintiffs to getthe sale deed executed in their favour. The oral evidence does not give anykind of explanation for inaction for so many days. Merely by saying thatplaintiffs had performed their part of the contract and nothing was remainedto be performed by them, does not bring the suit within limitation. It is forthe simple reason that basically there was no document with them to support ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:39:03 ::: 17 SA_841,842,843_2018the alleged transaction. Under such circumstance, the diligent person wouldnot have kept quiet for such a long time and therefore, definitely they cannotbe said to be ready and willing to perform their part of contract, even if forthe sake of moment if it is accepted that there was an agreement of sale.Therefore, as regards this suit i.e. R.C.S. No.68/2006 the learned Trial Courthas taken appropriate view and findings have been correctly given. Asregards appellate Court in R.C.A. No.164/2014 is concerned, no doubt, it isstated that the appellate Court is framing ‘issues’, but they are in fact pointsfor determination, different nomenclature given to the same and the style inwhich those points have been framed would be similar to the issues. It cannotbe stated that there is absolutely no compliance of Order 41 Rule 31 of CPC.No substantial question of law has been pointed out in respect of SecondAppeal No.843 of 2018 and therefore that appeal deserves to be dismissed.For the above said reason following order.

ORDER1 Second Appeal Nos.841 of 2018 and 842 of 2018 are ‘admitted’for the substantial questions of law stated in para No.12 above.2 Learned Advocate Mr. G.K. Thigale waives notice for respondentafter admission for both the cases.
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18 SA_841,842,843_20183 Printing of paper book is dispensed with as the record andproceeding is available before the Court.4 The paper book prepared before the First Appellate Court issufficient.5 Second Appeal No.843 of 2018 is disposed of as ‘not admitted’. ( Smt. Vibha Kankanwadi, J. )agd ::: Uploaded on – 02/05/2019 ::: Downloaded on – 03/05/2019 06:39:03 :::

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