upon death of tenant, the legal representatives become
joint tenants and not the tenants in common. The
tenancy right is indivisible. Therefore, it is an
established principle of law that the notice of eviction
served on one of the joint tenants is binding on all the
joint tenants. Then if by notice of determination of
tenancy, issued to one of the joint tenants, all the
joint tenants would become trespassers in case the
suit premises are not vacated, naturally the suit
against some of the joint tenants would also bind the
remaining joint tenants.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 112 OF 2012
Rameshchandra Daulal Soni,
VERSUS
Devichand Hiralal Gandhi,
CORAM : M.T. JOSHI, J.
DATED : 20th JULY, 2015
Citation;2015(6) MHLJ 309 Bom
1. All the present civil revision applications
have arisen out of one and the same suit filed by the
common respondents No. 1 (since deceased) for eviction
of the defendants therein on the ground of default in
payment of rent, nonuser of the suit premises by the
original defendants No. 1 and 2 i.e. the petitioners in
civil revision application No. 112/2012 for a period of
more than six months and subletting some portions of
the suit premises to the lateron added defendants No. 3
to 7, including the petitioners in civil revision
applications No. 113/2012 and 114/2012. The suit was
decreed by the learned Civil Judge Senior Division,
Ahmednagar on the ground of default in payment of rent
and nonuser of the suit premises. The ground of subletting
some portions of the suit premises did not find
favour with the trial court.
Aggrieved by the decree passed by the trial
court, the original defendants No. 1 and 2 preferred an
appeal before the District Court and aggrieved by the
refusal of decree against original defendants No. 3 to 7
as subtenants, the original plaintiffs filed crossobjection.
Further, original defendant No. 3/revision
petitioner in Civil Revision Application No. 113 of 2012
and original defendant No. 5/revision petitioner in
Civil Revision Application No. 114 of 2012 also filed
crossobjections. Thus, the entire dispute was before
the District Court.
2. The learned Principal District Judge dismissed
the appeal and though did not agree with the plaintiffs
that the defendants No. 3 to 7 were subtenants, held
that they do not have any independent title than that of
the tenants i.e. of defendants No. 1 and 2 and
therefore, the decree passed by the trial court was
confirmed.
3. It is to be noted that out of these defendants
No. 3 to 7, while some of them failed to put their
appearance and therefore, the suit proceeded exparte
against them in the trial court, some of them did not
file any written statement and their Advocate had filed
no instructions purshis from their respective clients.
Eventually, the suit proceeded without any written
statement from them. The revision petitioners in civil
revision applications No. 113/2012 and 114/2012, are
the defendants, who failed to file the written
statement.
4. The suit property is a final plot bearing No.
19, lateron included in town planning scheme and is now
within the limits of Ahmednagar Municipal Corporation.
The said plot admeasures 2656 sq. mtrs.
. The suit property was originally owned by three
brothers, namely, Shri B.N. Deshmukh, Shri L.N. Deshmukh
and Shri M.N. Deshmukh, called as Deshmukhs by the trial
court. The grandfather of defendants No. 1 and 2,
namely, Jagannath Soni had obtained on lease the suit
property by a registered leasedeed dated 22nd May, 1928
from the father of Deshmukhs. The son of said Jagannath
Soni, namely, Daulal Soni continued to be in possession
of the suit property. Upon his death on 2nd June, 1985,
the suit property, according to the plaintiffs,
continued with the defendants No. 1 and 2. These
defendants have, however, disputed that they are the
only legal representatives of the deceased. According
to them, two daughters of Daulal Soni also inherited the
tenancy rights and therefore, the plea of nonjoinder of
necessary parties was taken.
. The three sons of Narhar Balkrishna Deshmukh,
namely, Shri B.N. Deshmukh, Shri L.N. Deshmukh and Shri
M.N. Deshmukh had, according to the plaintiffs, sold the
suit property to the plaintiff on 08.08.1986 and thus,
according to the plaintiff, he became the landlord of
defendants No. 1 and 2.
5. In this background, the case of the original
plaintiff, in short, is as under :
. On the strength of transfer of the property to
the original plaintiff, he gave intimation to the
defendant No. 1 about the transfer of the property by
registered post acknowledgement due and defendants No. 1
and 2 were directed to take necessary steps for payment
of rent at the rate of Rs. 31/ per annum. The tenancy
was yearly tenancy, starting from 22nd May of each year
and was to end on 21st May of the next year as per the
English calender. Despite this intimation and lateron
notice at Exh96, defendants No. 1 and 2 failed to pay
the rent and therefore, they became willful defaulter in
payment of rent. Hence, the decree on this count is
sought.
6. The plaintiff also pleaded nonuser of the suit
premises. Defendant No. 1 Rameshchandra is a practicing
Advocate at Mumbai. Further, the suit premises were let
out for Cotton and Ginning Factory and for the storage
of the cotton. The said business is now not in
existence. Therefore, these defendants are not using
the suit premises for the purposes for which those were
let out since long. They do not need the suit premises.
It is put under lock since so many years. Therefore,
they were asked to vacate the suit premises after
removing the structure vide notice dated 1st September,
1988.
. During the pendency of the suit, the
Commissioner was appointed for inspection of the suit
premises. It was found that defendants No.3 to 7 were
in possession of some portions of the suit premises.
Therefore, the plaint was amended and the decree was
also sought on the ground of subletting of the suit
premises without the permission of the landlord.
7. The defendants No. 1 and 2 though filed their
separate written statement, their defence was common.
It was pleaded that the lease was for a period of 31
years w.e.f. 22nd May, 1928 at an annual rent of Rs.
31/. Upon efflux of time also, the tenancy continued.
These defendants were never asked to attorn the tenancy.
After receipt of intimation dated 6th December, 1986 from
the plaintiff, they contacted the plaintiff. However,
the plaintiff failed to substantiate his rights and
therefore, there is no relationship of landlord and
tenant. The suit was bad for nonjoinder of necessary
party. Further, the pleas regarding the limitation,
improper valuation of the court fees and jurisdiction of
the court to try the suit, were taken. All other
adverse allegations were denied. The defendants No.1
and 2, therefore, prayed for dismissal of the suit.
8. The oral as well as documentary evidence was
adduced before the the trial court and the learned trial
court recorded the findings, as detailed supra.
9. Mr. P.M. Shah, learned senior counsel, in brief
of Mr. J.R. Shah, learned counsel, for the petitioners
in civil revision application No. 112/2012, advanced the
following submissions :
(I) That, the defendants No.1 and 2, in their
written statement, have taken a specific plea that
deceased Daulal Soni left behind him not only defendants
No.1 and 2, but two daughters and thus, his plea of
nonjoinder of necessary parties was required to be
considered by the learned Principal District Judge in
the first appeal. The learned Civil Judge Senior
Division wrongly held that the tenancy being statutory
tenancy, the same is not heritable, on the basis of the
authorities which do not hold any field. Further, the
findings on the basis of the provisions of section 5
(11) (c) of the Bombay Rents, Hotel and Lodging Houses
Rates Control Act, 1947 (for short, “the Bombay Rent
Act”) that a member of the family carrying out the
activities for which the premises were let out shall be
a tenant, has been misconstrued by the learned courts
below. Such a tenant cannot supersede the inheritance
of the legal representatives of deceased tenant.
(II) So far as the plea of nonuser of the suit
premises is concerned, Mr. P.M. Shah points out the
provisions of section 13 (1) (k) of the Bombay Rent Act
and submitted that the pleadings are insuffcient. The
provisions require that the premises not only should
have been remained unused for the purposes for which
those were let for a continuous period of six months
preceding the suit but the said nonuser should also be
“without reasonable cause”. No pleading in this regard
that the premises are not used “without reasonable
cause” are made and therefore, solely for want of
pleading, this ground ought to have been rejected by the
learned courts below.
(III) Mr. Shah, learned senior counsel, further
submitted that there is no attornment of tenancy at all.
Therefore, there is no question of payment of rent.
Further, upon taking me through the notice allegedly
given by the plaintiff, he submitted that the demand of
rent is also not for a definite period in view of the
tenancy year, as detailed supra. The rent, according to
the agreement was to be paid in advance. Therefore,
unless and until the notice specifies the amount due for
the specified period, the notice at Exhibit96 dated 1st
September, 1988 is bad in law.
. Mr. Shah submitted that while the learned trial
court has framed an issue on the question of validity of
the notice, the learned Principal District Judge even
did not frame point for determination in this regard.
In the alternative, Mr. Shah submitted that before the
additional issues were framed by the learned trial
judge, the entire amount was deposited and thereafter
the regular payment is made. Therefore, since on the
first date of hearing, the amount is deposited, the plea
against forfeiture was required to be considered.
(IV) Further pleas regarding the limitation, the
scope of the revision application when the injustice is
perpetuated, were advanced and Mr. Shah submitted that
either the civil revision application be allowed or for
want of definite finding of the first appellate court,
the matter may be remanded back to it.
10. Mr. A.K. Gawali and Mr. R.R. Mantri, learned
counsel for the petitioner in civil revision
applications No. 113/2012 and 114/2012, advanced their
submissions. They prayed for remand on the ground that
sufficient opportunity to defend the suit was not given
to these petitioners. It was submitted that the record
and papers of the suit were sent to the District Court
pending the suit as the revision application was filed
by the defendants No. 1 and 2. While rejecting the
civil revision application, no definite date for
appearance was given by the learned District Judge for
appearance of the parties in the trial court.
Thereafter, the suit came to be transferred from one
court to another. Therefore, these petitioners had
prayed for remand of the case in the appeal by filing a
separate application. At that time, it was ordered that
the application would be decided at the time of final
hearing. However, the said plea of remand was not
considered at the time of final hearing. They,
therefore, submitted that as no fair opportunity to
these petitioners to defend the suit has been given, the
matter is required to be remanded to the trial court.
. In the alternative, it was pointed out that
there are documents to show that the present respondents
were in occupation of the part of the suit premises
preceding the registered leasedeed. Further, contrary
findings of facts by the courts below i.e. as per the
learned trial court, they are tresspassers and per the
learned Principal District Judge, they are not tresspassers
but claimed the possession under the defendants
No.1 and 2, are recorded on the same set of evidence
solely produced by the plaintiff in absence of the
present respondents. Not only this, Mr. R.R. Mantri,
learned counsel, submitted that the plaintiff has
admitted that the revision petitioner in civil revision
application No. 114/2012 is legally in possession of the
suit premises. The same, however, is not considered by
the courts. Further, though the contradiction in the
oral evidence of the plaintiff regarding the inception
of the present revision petitioners, was conspicuous,
the learned courts below did not consider the same.
Therefore, both learned counsel for the petitioners in
civil revision applications No. 113/2012 and 114/2012
wanted that the revision petitions be allowed and the
decree be set aside.
11. On the other hand, Mr. S.D. Kulkarni, learned
counsel for the respondents No. 1A to 1E i.e the legal
representatives of the original plaintiff, submitted as
under :
(I) That, both the sisters of defendants No. 1 and
2 are married during the lifetime of their father only
and are not participating in the business. Even
otherwise, upon death of their father, they are the
joint tenants and therefore, does not require any
independent notice or they are not required to be
impleaded or arrayed as defendants. He further submitted
that in view of the provisions of section 5 (11) (c) of
the Bombay Rent Act, only the member of the family who
carries on business in the suit premises would be the
tenant.
. Further, the very pleading that the suit
premises were locked and those were not required by the
defendant No. 1 would amount to the plaintiff's nonuser
“without reasonable cause”.
. He further points that the rent for the first
time was deposited after framing of the issues in the
trial court. Lastly, it was submitted that in the
present revision petitions, no interference in the
concurrent findings recorded by the learned courts below
is warranted and hence, Mr. Kulkarni wanted that the
revision applications of the defendants No. 1 and 2 be
dismissed.
(II) As regards the other revision petitions, Mr.
Kulkarni, learned counsel, submitted that the record
would show that on service of summons, these revision
petitioners appeared in the trial court and sought time
to file written statement. Thereafter, however, they
remained absent and even their counsel filed purshis
having no instructions. Therefore, the suit proceeded
without their written statement. Thereafter only, the
record of the suit and papers were sent to the District
Court. In that view of the matter, the pleas of nonappearance
due to absence of record and the papers in
the trial court and after the revision was disposed of,
transfer of the file from one court to another in the
same premises of Ahmednagar District Court, are nothing
but the excuses made by these respondents. In the
circumstances, Mr. Kulkarni submitted that since these
revision petitioners had chosen not to defend the suit
in the trial court, the plea of the plaintiff regarding
their possession has been rightly accepted by the
learned courts below. Therefore, their petitions deserve
to be dismissed.
12. On the basis of above material on record and
the submissions advanced on behalf of all the parties,
the following points arise for my determination :
(I) Whether the suit suffers from nonjoinder of
necessary parties ?
(II) Whether the eviction of the defendants No. 1
and 2 from the suit premises on the ground of forfeiture
of tenancy due to nonpayment of rent, can be
confirmed ?
(III) Whether the eviction decree on the ground
of nonuser of the suit premises by the defendants No. 1
and 2 can be confirmed ?
(IV) Whether the suit was within limitation ?
(V) Whether the matter deserves remand for findings
of facts by the District Court ?
(VI) Whether the matter is required to be remanded
to the trial court for giving fair opportunity to the
revision petitioner in civil revision application No.
113/2012 ?
(VII) What order ?
R E A S O N S
Nonjoinder of necessary parties :
13. As regards the nonjoinder of necessary
parties, Mr. P.M. Shah, learned Senior Counsel, rightly
submits that the reasoning of the learned trial court
holding the tenancy as “statutory tenancy” and further
holding that upon death of original tenant, the tenancy
stands expired, is not proper. Right from the case of
“Damadilal and others V. Parashram and others”, reported
in AIR 1976 S.C. 2229, the confusion caused by the term
“statutory tenant”, as is used in England, to the
tenants protected under the various Tenant Protection
Acts in India, has been highlighted and thereafter in
catena of cases. The reading of the definition of term
“tenant” in the Bombay Rent Act and various other Tenant
Protection Acts in India would show that a tenant who
continues after determination of tenancy is deemed to be
a tenant for all purposes till a decree for eviction is
passed against him. The “statutory tenancy”, therefore,
is inheritable. In that view of the matter, the
reasoning of the learned trial court in this regard
cannot be upheld.
. Mr. Shah, learned senior counsel rightly
submitted that despite the provisions of section 5 (11)
(c) (ii) of the Bombay Rent Act whereunder a family
member of the tenant residing with him at the time of
his death can also be termed as a tenant. It would not
supersede the general law of inheritance, as has been
declared in the following cases.
(i) Rajaram Brindavan Upadhyaya and others V.
Ramraj Raghunath Upadhyaya and others
(1977 Mh.L.J. 792)
(ii) Budhmal Khushalchand and another V.
Bansilal Gulabchand Agrawal
1983 (1) Bom. C.R. 11
The sister's of the defendants No. 1 and 2 therefore
inherited the the tenancy right.
14. The issue, therefore, would remain as to
whether a suit for eviction against some of the legal
representatives of the deceased tenant would be tenable.
The record in the present case would show that the
plaintiff had issued notice to the defendants No. 1 and
2 directing them to pay the rent. The same was replied
by the defendants No. 1 and 2 without specifying that
they alone are not occupying the suit premises but their
sisters, being the legal representatives of deceased
tenant, would be liable to pay the rent. The plea is
taken in the written statements that the deceased also
left behind “2 daughters”.
15. It is a well established principle of law that
upon death of tenant, the legal representatives become
joint tenants and not the tenants in common. The
tenancy right is indivisible. Therefore, it is an
established principle of law that the notice of eviction
served on one of the joint tenants is binding on all the
joint tenants. Then if by notice of determination of
tenancy, issued to one of the joint tenants, all the
joint tenants would become tresspassers in case the
suit premises are not vacated, naturally the suit
against some of the joint tenants would also bind the
remaining joint tenants.
16. There is one another angle to the issue of nonjoinder
of necessary parties. Mr. P.M. Shah, learned
senior counsel for the petitioners in civil revision
application No. 112/2012 placed reliance on the ratio
laid down in the cases of “Textile Association (India)
Bombay Unit V. Balmohan Gopalkrup and others”, reported
in (1990) 4 S.C.C. 700, “Ishwarlal Pranjeevandas and
others V. Labhshankar Hargovindas Bhat”, reported in AIR
1982 Gujarat 152, “Tarachand and others V. Ramprasad”
reported in (1990) 3 S.C.C. 526 and “Surayya Begum (Mst)
V. Mohd. Usman and others”, reported in (1991) 3 S.C.C.
114.
17. In some of the cases, the exparte decree in
favour of the tenant was passed as the legal
representatives of the deceased tenant, who were joined
as defendants to the exclusion of others remained
absent.
. In the case of “Surayya Begum (Mst) V. Mohd.
Usman and others” (cited supra), relied on by Mr. Shah,
the law on the subject has been thoroughly discussed.
The ratio would show that as to whether failure to
implead one or the other heir/s of deceased tenant as a
party, would render the eviction decree not executable,
depends upon the facts and circumstances of a particular
case. It was held that if the interest of the person
not impleaded bonafide represented by the coheir,
objection to the execution of the decree would be
unsustainable. However, in case of collusive or malafide
exclusion of heir from impleadment, such objection would
be sustainable. Reliance was placed by Their Lordships
on the ExplanationVI of Section 11 of the Code of Civil
Procedure.
18. In a way, if it would an effective class
representation, then as per the ExplanationVI to
section 11 of the Code of Civil Procedure, the issues
decided in the lis would be res judicata as against the
legal heirs not impleaded in the suit. If all these
aspects are considered, then the fact that the
defendants No. 1 and 2 in the present case did not, in
their communication earlier to the litigation,
communicate the fact of having other legal
representatives to the deceased and thereafter raising
of the said issue by amendment of the written statement
lateron in the trial court would show that if at all any
grievance of the sisters of the defendants No. 1 and 2
would be there, the plaintiff would very well be
entitled to show that they were litigating bonafide
against present defendants No. 1 and 2. At least, the
issue is not required to be decided in the present lis.
Considering all this material on record, I do not find
any infirmity in the final conclusion in this regard of
both the courts below, though for different reasons, as
detailed supra.
19. The grievance of Mr. Shah is that the learned
Principal District Judge did not record any finding on
this issue though the arguments advanced in this regard
were referred by the learned Principal District Judge.
Mr. Shah, therefore, seeks remand of the matter on this
count.
20. It is to be noted that the issue is depending
on law only, as detailed above i.e. the tenants would be
joint tenants, that the effect of ExplanationVI to
section 11 of the Code of Civil Procedure, is considered
by this Court. In the facts of the present case,
therefore, though Mr. Shah relied on the ratio in the
case of “H.K.N. Swami V. Irshad Basith (Dead) by Lrs.”,
reported in (2005) 10 S.C.C. 243, “Mukhtiar Singh and
another V. State of Punjab”, reported in (1995) 1 S.C.C.
760 and “Santosh Hazari V. Purushottam Tiwari deceased
by L.Rs.”, reported in 2001 (2) Mh.L.J. 786, since the
parties are litigating since 1989, I do not think it fit
to remand the matter to the trial court. The point No.
(I) is, therefore, answered accordingly.
Willful default in payment of rent :
21. Mr. P.M. Shah, learned senior counsel,
submitted that there was merely communication from the
plaintiff that they had purchased the suit property from
the original landlord. There was no notice of
attornment. Even the demand of the rent vide notice at
Exhibit96 was overlapping is clear from the said
communication as the yearly tenancy used to commence
from 22nd May of each year and was to end on 21st May of
the next year. He, therefore, submitted that the midterm
demand of the rent i.e. the demand made on 6th
August, 1986 would amount to a claim of the rent for the
period when the earlier landlord was entitled for the
same. There is nothing on record to show that any right
to recover the arrears of rent, if any was transferred
and at the most, it would be a charge and not the rent.
. Mr. Shah further points towards the recitals in
the leasedeed that the rent was to be paid in advance
and therefore, according to him, on the date of issuance
of the notice by the present plaintiff of the purchase
of the suit property by them on 6th August, 1986, would
show that no rent was due on that day. In the
circumstances, Mr. Shah submitted that when the notice
itself was invalid, no forfeiture of the tenancy could
have been incurred for noncompliance of the said
notice. He further points that at the time of framing
of additional issues in view of the amendment to the
written statement on 9th September, 1997, the amount was
deposited and thereafter, the rent was being deposited
regularly in the court. He submitted that the relief
against forfeiture should be construed liberally and in
the circumstances, there would be no willful default in
payment of rent.
22. It should be noted that the defendants No. 1
and 2 never came with a case that they had paid the rent
of the year 19861987 to their earlier landlord nor any
receipts were produced on record. Further, after the
pleadings were completed and the issues were framed,
there was no deposit of the rent in the court.
Thereafter, after some period, the defendants No. 1 and
2 amended their written statement whereupon the
additional issues were framed before which the rent was
deposited. This cannot be termed as a deposit of rent
on or before the “first date of hearing” as is envisaged
by the provisions of Section 12 of the Bombay Rent Act.
23. The issue of attornment of tenancy is merely a
defence for the purposes of defence. As earlier pointed
out, there is nothing on record to show that after the
execution of the saledeed in favour of the plaintiff,
the defendants No. 1 and 2 continued to pay the rent to
the original landlord any time till this date. It is
not the case of the defendants No. 1 and 2 that the
original landlord at any time disputed with them the
fact of transfer of the property to the defendants No. 1
and 2 since the date of communication to them by the
present plaintiff i.e. 16.12.1986. In that view of the
matter, the ratio in the case of “V. Dhanpal Chettiar V.
Yesodai Ammal” reported in (1979) 4 S.C.C. 214 would not
be applicable in the facts of the present case. The
facts on record, as detailed supra, would show that the
defendants No. 1 and 2 not only failed to tender the
rent to the plaintiff after receipt of the communication
but they did not even deposit the rent in the court on
the first date of hearing. The decree passed by the
learned trial court, as confirmed by the learned
Principal District Judge, in the circumstances, cannot
be assailed.
Nonuser of suit premises :
24. During evidence, it has become clear that the
suit properties which were originally leased for the
purposes of Ginning and Pressing Mill of the cotton
remained closed for years together much prior to six
months immediately preceding the filing of the suit.
The Commissioner's report in this regard corroborates
the said fact. The dispute, however, is as to whether
the pleadings of the plaintiff in this regard are
sufficient. The provisions of section 13 (1) (k) of the
Bombay Rent Act are material to consider the rival
claims in this regard, which run as under :
13. When landlord may recover possession
(1) Notwithstanding anything contained in this
Act but subject to the provisions of sections
15 and 15A, a landlord shall be entitled to
recover possession of any premises if the Court
is satisfied
(a) to (j) *****
(k) that the premises have not been used
without reasonable cause for the purpose for
which they were let for a continuous period of
six months immediately preceding the date of
the suit;” (Emphasis supplied)
25. Mr. Shah submits that the plaintiff never
pleaded that the premises have not been used “without
reasonable cause”. He simply pleaded that the defendants
No. 1 and 2 are not using the suit premises for the
purpose for which those were let out. The reliance was
placed on the ratio laid down in the cases of “C.R.
Shaikh V. Leelabai”, reported in 1981 Mh.L.J. 437 and
“Ashok Vithal Chavan and others V. Baburao Sakharam
Bhagat” reported in 2002 (4) All MR 217.
26. The learned trial court held that the exact
term is not necessary to be pleaded. According to it, it
is a legal terminology and hence the law need not be
pleaded. The learned Principal District Judge held that
the premises are not in use and did not consider the
issue of want of pleading.
27. It is held by this Court in the cases of “C.R.
Shaikh V. Leelabai”, and “Ashok Vithal Chavan and others
V. Baburao Sakharam Bhagat” (cited supra) that the
plaintiff/landlord is required to plead that not only
the suit premises are not in use for a period of more
than six months preceding to filing of the suit, but
also the said nonuser is without reasonable cause.
. It should, however, be noted that the plaintiff
has pleaded that the suit premises were closed since
long and those were locked for so many years. It was
also pleaded that the defendant No. 1 had started
practicing at Mumbai since long and defendant No. 2 was
also not in the business of cotton. All these facts
would go to show that the purpose for which the premises
were let, is no more in existence, the occupier also
does not need the suit premises and it is merely locked
for many years. All these facts pleaded would
necessarily mean that the suit premises are out of use
`without reasonable cause'. In the circumstances, the
decree passed by the trial court, as confirmed by the
learned Principal District Judge dos not suffer from any
material illegality.
Limitation :
28. Mr. Shah, learned senior counsel submits that
in view of the provisions of Article 67 of the
Limitation Act, 1963, the suit is hopelessly barred by
limitation. He relies on the ratio laid down in the
cases of “Smt. Shakuntala S. Tiwari V. Hemchand M.
Singhania” reported in AIR 1987 SC 1823 and “Sudha
Madhusudan Lanjekar and others V. Shashikant Gajanan
Pathare & others” reported in 2012 (1) ALL MR 710.
29. Article 67 of the Limitation Act, 1963 runs as
under :
Description of Period of Time from which period
Suit Limitation begins to run
By a landlord to Twelve years When the tenancy is
recover possession determined
from a tenant
30. It cannot be disputed that suit for eviction is
required to be filed within a period of twelve years
from the date of determination of tenancy. Even if we
advert to the provisions of Article 66, then the suit is
required to be filed within a period of twelve years
when the tenant incurs forfeiture or any condition of
the lease is broken. In the present case, the
forfeiture is incurred upon nonpayment of the rent upon
issuing notice at Exhibit96 and further upon not
depositing of arrears of rent, etc. on or before the
first date of hearing in the suit. In that view of the
matter, since the suit is filed within a period of
twelve years of issuing of notice at Exhibit96, the
suit is within limitation.
31. No particulars in the written statement as to
how the suit is beyond limitation are given. In that
view of the matter, the ratio of the authorities, relied
upon by the learned senior counsel, would not be
applicable in the facts of the present case.
Subletting of the suit premises and opportunity
to the petitioners in Civil Revision
Applications No. 113/2012 and 114/2012 to have
fresh hearing upon remand of the matter :
32. There is certain contradiction in the pleadings
and depositions from the side of the plaintiff as to
since when the present revision petitioners or their
predecessor/s alongwith other added respondents were
occupying the suit premises. While the Commissioner's
report showed that they were in possession of the suit
premises, the defendants No. 1 and 2 failed to specify
as to how these added respondents were occupying the
premises though leased to the predecessors of the
defendants No. 1 and 2. Present revision petitioners
i.e. defendant No. 3 and defendant No. 5 though appeared
in the proceedings, they failed to file their written
statement and ultimately, their respective Advocates
were required to intimate to the trial court that they
had no further instructions from their clients for
further appearance in the suit. Thereafter only, the
matter was taken in revision by the defendants No. 1 and
2 in the District Court. The revision was dismissed and
thereafter, the record and papers of the suit were sent
back to the trial court. The file was transferred from
one court to another court within the same premises of
Ahmednagar District Court. In this state of facts, we
shall have to find out as to whether these petitioners
can be termed as unlawful sublessees and/or whether the
case is required to be remanded back to the trial court
with directions to it to accept the written statement of
these revision petitioners and to begin the trial
afresh.
33. It is now well established that if a third
person other than the tenant is found in possession of
the tenanted premises, then the tenant as well as
occupier has to show the nature of the possession. In
absence of the same, since the landlord would be a
stranger to the contract or agreement between the tenant
and the occupier, the necessary conclusion would be that
the tenanted premises are sublet to the occupier. The
facts already noted hereinabove would show that while
the defendants No. 1 and 2 failed to specify the nature
of possession of the rest of the defendants, these
defendants and more particularly the present revision
petitioners failed to specify their nature of possession
by nonfiling of written statement and thereafter not
contesting the suit.
34. The plea of remand of the matter also cannot be
considered for the simple reason that an opportunity to
be heard was forfeited by nonfiling of the written
statement and thereafter by abstaining from trial in the
trial court itself by these revision petitioners or
their predecessor. The filing of civil revision
application by the defendants No. 1 and 2 in the
District Court, sending the record and papers from the
trial court to the District Court and after some period,
return of the record and papers are merely the excuses
being made by the present revision petitioners. To
repeat, they thought it fit not to participate in the
proceedings long back before the said episode of filing
civil revision application in District Court had taken
place.
35. Mr. R.R. Mantri, learned counsel for the
petitioner in civil revision application No. 114/2012,
relied on the ratio laid down in the case of “Ratilal
s/o Jivanbhai Lalji Vs. Kuvarben wd/o Chabildas Patel
and others”, reported in 2009 (1) All MR 654, wherein a
suit from the Small Causes Court at Fort, Mumbai was
transferred with other relevant suits, upon
establishment of Small Causes Court at Bandra and in
those circumstances, it was held that the notice to the
litigants was required.
. Here in the present case, however, we have
already found that the revision petitioners abstained
from the appearance and failed to file written
statement. Thereafter only, the record and papers were
sent to the District Court and upon return of the same,
the suit was transferred not beyond the Ahmednagar
District Court premises but from one court to another
court in the same premises. It is well known that in
such circumstances, a general transfer order issued by
the Principal District Judge placed on the notice board
of the Bar Association is sufficient notice to the
Advocates for the parties. The Advocates had, however,
filed their no instruction pursis and no other Advocates
were engaged by the present respondents. In view of
these facts, when the suit was filed in the year 1989,
now remanding the case again back to the trial court
would be a travesty of justice.
. Mr. Mantri submits that though on an
application for remand of the matter, the then District
Judge passed an order that it would be considered at the
time of final hearing, the same was not decided. It
should however be noted that the plea of remand was
considered by the District Judge in the judgement.
36. Regarding the finding of fact in this respect,
the learned trial court did not grant decree on this
count finding that the landlord failed to show that
there was a contract of tenancy between defendants No. 1
and 2 on one hand and the other defendants on the other
hand. It was observed that merely possession of rest of
the defendants than defendants No. 1 and 2 in some
portion of the premises would not amount to subletting.
The learned Principal District Judge confirmed the
findings as recorded by the trial court but on law,
differed with the trial court. For the reasons which
are already forwarded by me earlier that it is for the
occupier and the tenant to specify the nature of the
possession of the occupier in the tenanted premises, no
material irregularity, therefore, is found in the
conclusion of the learned Principal District Judge in
this regard.
37. Mr. Mantri submits that the leasedeed at
Exhibit100 would show that the present revision
petitioner had already occupied some portion. The
contents of the leasedeed, however, are only to the
effect that earlier landlords' one tenant had a hut in
the premises which was to be continued by the then
lessee i.e. grandfather of the defendants No. 1 and 2.
38. Considering all the material on record and the
legal position, discussed hereinabove, there is no merit
in all the three revision applications. Hence, the
following order :
39. All the three civil revision applications are
hereby dismissed, with costs.
[M.T. JOSHI]
JUDGE
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