Rameshchandra Daulal Soni & Anr. vs Devichand Hiralal Gandhi (Dead) Thr. Lrs. Smt. Gulabbai Devichand Gandhi & Ors.

2 was the tenant of the said property – Defendants No.1 and 2 thereafter continued as the tenants – The plaintiff informed the defendants No.1 and 2 through the communication dated 06.12.1986 about the purchase and had sought for payment of the rents – Defendants failed to pay the same – The plaintiff termed the defendants No.1 and 2 as defaulters and instituted a regular civil suit seeking eviction – Trial Court decreed the suit and directed the defendants to handover actual physical possession of the suit property – Aggrieved, defendants No.1 and 2 filed appeal and the same was dismissed by the Appellate Court – The Revision Applications were also dismissed by the High Court – Defendants No.1 and 2 contended that in view of the death of the original tenant, two sisters who were also the legal heirs but were not made defendants – It was also contended by all the legal heirs that the suit property was an agricultural property and such rights inter-se between the parties were governed under the Maharashtra Tenancy and Agricultural Lands Act (MTAL Act) and the Civil Court did not have the jurisdiction – On appeal, held: The evidence available on record was assessed by the Trial Court as also the Appellate Court and have recorded a finding of facts – That such a finding was based on the oral evidence tendered and the documents that were relied upon and marked before the Trial Court, the finding of fact recorded cannot be considered as perverse so as to interfere in a proceeding of the present nature – So far as two sisters of defendants No.1 and 2 are concerned, their claim to be considered as the tenants under the statutory tenant is a belated claim as an after thought – Defendant No.1 in his evidence stated that he used the premises for storing food grain etc., there was no reference to the business being carried on jointly with his sisters – Further, the said sisters did not take any steps in any of the earlier proceedings from 1989 to 2015 to get themselves impleaded by contending that they were proper and necessary party – Insofar, contention to the effect that the suit property was an agricultural property, the said contention was never raised in the suit or as to whether the issue in the suit should be referred to the Authority under the MTAL Act – Further, there is no document to indicate the procedure contemplated under the MTAL Act was followed so as to conclude that the predecessor of defendants No.1 and 2 had become landlord of the property by operation of law so as to bar the jurisdiction of the Civil Court – Therefore, contentions urged by the defendants No.1 and 2 as also by all the legal heirs unsustainable.

Dismissing the appeals, the Court

HELD: 1. The provision in Section 5(11)(c)(ii) of Bombay Rents, Hotels & Lodging houses Rates Control Act, 1947 noted supra is clear that the persons carrying on the business with the statutory tenant at the time of death would be entitled to continue as a tenant. The second part of the said provision is that in the absence of such member any heir of the deceased tenant as may be decided by the Court in default of agreement, would get the right. In the instant case the contention being urged that the two daughters of the deceased tenants were also entitled to be considered as the tenants under the statutory tenant, is a belated claim as an afterthought. As taken note while considering the factual aspect it has come on record that the plaintiff after having purchased the property under a registered sale deed had issued the notice dated 16.12.1986 as at Exhibit 80 and the trial court has also recorded a finding that through the said notice the plaintiff had informed the defendants No. 1 and 2 about the purchase of the suit property. That apart, subsequently a notice as at Exhibit 96 was issued to the defendants No. 1 and 2 demanding the arrears of rent. The said notice in fact had been replied by the defendants No. 1 and 2 through the reply marked at Exhibit 99. Neither at the first instance when the notice at Exhibit 80 was issued was it indicated by the defendants No. 1 and 2 that their sisters had also become the statutory tenants and the notice in the nature of attornment of tenancy should be issued to them as well, nor in the reply which had been issued when the arrears of rent was demanded did the defendants No.

1 and 2 contend that they were not the only one who were involved in the business along with the original statutory tenant and, therefore, all the legal heirs had succeeded as tenants on the death of the statutory tenant and, therefore, the demand, if any, is to be made from all of them. [Para 12] [58-B-G]

2. Though such contention is put forth the defendants No.1 and 2 did not attribute any right in favour of the sisters. In fact, as noted by the trial court the defendants No. 1 and 2 have filed on record pursis with a Exhibit 137-A claiming to have deposited Rs. 1000/- on 09.9.2007 at ‘C’ Register No. 465 without prejudice to their rights towards the rent, causes of the suit etc. This in opinion of this Court would indicate that the defendants No. 1 and 2 were claiming right for themselves and did not at that stage state about the right if any, possessed by their sisters as well and have now raised the contention as an afterthought. Further in the evidence of defendant No. 1 he states that his grandfather took the suit premises on lease for the purpose of business of cotton ginning factory and he further states that the defendant No. 1 used the premises to store food grain and equipment of agricultural and also cement. This would indicate that the defendant was referring to the business being carried on by him alone and there is no reference to the business being jointly carried on with his sisters or that none of the legal representatives including defendant No. 1 were carrying on business with the statutory tenant so as to claim benefit of the second part of Section 5 (11) (c) (ii) and claim joint inheritance of tenancy. Further the said position is also clear from the evidence of the one defendant witness ‘V’ who was examined to indicate that the premises was being used for the business and in that regard, in the course of his evidence he has stated that the defendants No. 1 and 2 are keeping cement and food grain in the godown and that he is serving with the defendants

1 and 2 since last 10 to 12 years but has not stated about the sisters also being involved in the business. If that be the position even from the evidence of the said witness, it would be clear that only first part of Section 5 (11) (c) (ii) would be available and the sisters of defendant No. 1 and 2 cannot claim right merely due to the fact that they are the legal heirs of the deceased tenant. That apart the suit had been filed in the year 1989 and the same had crossed the stage of appeal as well as revision before the High Court which had come to an end on 20.07.2015. In none of these proceedings the said sisters of defendants No.1 and 2 have taken any steps to get themselves impleaded by contending that they are proper and necessary parties failing which their right would be affected. [Paras 13 and 14] [58-G-H; 59-A-F]

3. Further, having taken note of the contention of defendant No. 5 what is noticed at the outset is that the predecessor of the appellants, namely, the defendant No.5 did not choose to file the written statement in the suit. In that circumstance the contention to the effect that the suit schedule property or a portion thereof was an agricultural property was never the contention raised in the suit or as to whether the issue in the suit should be referred to the Authority under the MTAL Act. In that view no issue in that regard arose before the trial court to consider as to whether the Civil Court had the jurisdiction to entertain the suit. That apart the undisputed fact is that the legal representatives of defendant No.5 had assailed the judgment of the court below in CRA No.114/2012 which was considered along with CRA No.112/2012 and claiming to be aggrieved by the dismissal of the CRA No.114/2012 had preferred SLP(C) No.31644/2015 before this Court. This Court through the order dated 23.11.2015 had dismissed the Special Leave Petition. Despite failing in the very proceeding relating to which the execution petition has been initiated the said legal representatives of defendant No.5 filed the application in execution proceedings claiming to be agricultural tenants and defeat the execution by terming the decree as a nullity. It is in the said proceedings the executing court having taken into consideration all aspects, dismissed the application by the order dated 15.10.2018. The executing court thus having taken into consideration the order dated 20.07.2015 passed by the High Court in CRA Nos.112, 113 and 114 of 2012 has dismissed the application. Further the right as claimed by the said legal representatives based on the entry contained in 7/12 extract has been rejected. There is no error committed by the executing court for the following reasons. [Para 16] [61-H; 62-A-E]

4. In view of this Court even assuming for a moment that the name of the predecessor was indicated in the 7/12 extract, the basis of such entry is not demonstrated to be made after the procedure being followed. Though the reference contained in the lease deed dated 22.05.1928 has been relied upon that the hut of the agricultural tenant is situate in the leased land, there is no reference made to the name of such tenant so as to indicate that the reference is to their predecessor i.e. defendant No.5 nor can the co-existence of the agricultural operations being carried out in the land which was leased for storage of goods be assumed without definite material or demarcation indicated from records. The reference is only to the existence of a hut. That apart even if the same is taken as a reference to the defendant No.5 in the year 1928 the tenancy being continued and being operational on the tiller’s day i.e. 01.04.1957 is to be established to claim right under MTAL Act. Further while the MTAL Act creates right in favour of the agricultural tenant as on the appointed day the further procedure as contemplated is also required to be followed under Section 32G of the said Act. In the instant case apart from the fact that no such contention was urged in the suit by filing a written statement, no document to indicate that the procedure contemplated under the MTAL Act has been followed is available so as to conclude that the defendant No.5 had become the landlord of the property by operation of law so as to bar the jurisdiction of the Civil Court. [Para 17] [62-F-H; 63-A-B]

Damadi Lal & Ors. v. Parash Ram & Ors. (1976) 4 SCC 855 : [1976] Suppl. SCR 645 ; Gian Devi Anand v. Jeevan Kumar & Ors. (1985) 2 SCC 683 : [1985] 1 Suppl. SCR 1 ; Uttam v. Saubagh Singh & Ors. (2016)

4 SCC 68 : [2016] 2 SCR 100 - referred to.

Amrit Bhikaji Kale and Ors. S. Kashinath Janardhan Trade & Anr. (1983) 3 SCC 437 : [1983] 3 SCR 237 – held inapplicable.