1. These two Appeals are directed against the judgment and decree rendered by the Civil Judge, Senior Division, Sholapur, in Suit No. 60 of 1966. They raise common questions of facts and law and are heard together and disposed of by this common judgment,
2. Chanbasappa Sanganbasappa Chin-choli, the original plaintiff, filed a suit against Doddappa Chanbasappa Bora-mani, Gangadevi Boramani, Ratanlal Manikchand Shah and Bharat Manikchand Shah, being persons in occupation of the house bearing Municipal House No. 195/36 situate at Budhwar Peth, Sholapur for possession thereof and other ancillary reliefs. In the said suit he also impleaded his collaterals as defendants 5 to 11,
3. The genealogical tree of the family to which the plaintiff belongs may be reproduced as follows:--
| | |
Chanbasappa Nagappa Gurlingappa
(died about 40 | (died long back)
year back) |
| | |
Sidramappa Sanganbasappa Doddappa
(died about | (died in 1954)=
80 years back)= | Iramma(widow
Shivamma(widow) | Deft. No.6)
| | |
Sheelvantappa Chanbassappa Guttappa
(died in 1965)= (Plaintiff) (Deft.NO.5)
(Deft. No. 7)
| | | |
Chinnappa Nagappa Devl Gangabat
(Deft.NO. 8) (Deft.NO.9) (Deft.NO.10) (Dept.No.11)
4. In the plaint the case of the plaintiff was that the said house (hereinafter referred to as 'the suit premises') was purchased on 20th March 1953 for a sum of Rs, 14,000 by Doddappa Nagappa Chincholi. The suit premises were, according to the plaintiff, purchased by the said Doddappa Nagappa Chincholi for and on behalf of the H.U.F. of the common prepositor Sheelvantappa of which the said Doddappa was the Karta or the manager at the time of the said purchase. The said Doddappa died on 5th July 1954, The suit premises comprised of the ground floor and upper floor and it was claimed by the plaintiff that defendants 1 and 2 were in unauthorised occupation of the first floor thereof whilst defendants 3 and 4 were in unauthorised occupation of the ground floor thereof. The plaintiff claimed possession of the suit premises on the basis of the title of the said H.U.F, as the owners thereof,
5. In the written statement filed by defendants 1 and 2 the said defendants denied that the plaintiff and defendants 5 to 11 constituted any joint Hindu family. The basic plea of defendants 1 and 2 was that the suit premises were purchased by the said Doddappa as the benamidar of defendant 2 and the real owner of the suit premises was defendant 2,
6. In their written statement defendants 3 and 4 contended that they were the tenants on the portion in their occupation. The plea of the said defendants was that as tenants of the portion in their occupation, they were paying rent to defendants 1 and 2, who, accordingto the said defendants, were the owners of the suit premises.
7. Several issues were raised before the learned Judge. The said issues basically related to the plaintiff's title to the suit premises or to the claim of defendants 1 and 2 that the said property was purchased benami by the said Doddappa on behalf of defendant 2. The issues material to defendants 3 and 4 were those concerning their claim to tenancy of the portion in their occupation and the jurisdiction of the said Court to award any decree in favour of' the plaintiff in view of the provisions of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947, (hereinafter referred to as 'the Bombay Rent Act').
8. On behalf of the defendants, evidence was led of defendants 1, 2 and 4. The learned trial Judge answered the basic issues in favour of the plaintiff and decreed the suit for possession and for mesne profits. Aggrieved by the said decree, defendants 1 and 2 preferred the abovementioned Appeal No. 270 of 1969 and defendant 3 preferred the above-mentioned Appeal No. 267 of 1969.
9. Shri Shah, the learned counsel for defendants 1 and 2, urges the following contentions in support of the appeal preferred by them:--
(a) The learned trial Judge was plainly in error in holding that the suit property belonged to the H.U.F. as claimed by the plaintiff; there was no evidence whatever to sustain the said finding.
(b) The learned Judge's finding that the plaintiff established his title is contrary to the facts on record of the casa as also the legal principles applicable thereto,
10. In order to appreciate the contentions raised on behalf of defendants 1 and 2, it will be necessary to refer to the pleadings between the parties relevant for the purposes thereof. In para 2 of the plaint the plaintiff alleges as follows:--
'The property mentioned in para 1above is the joint family property of the plaintiff, who, together with defendants Nos. 5 to 11, at present, constitute the joint family at Chincholi. The said property was purchased by Doddappa Nagappa Chincholi, a constituent of the said joint family, by a registered sale deed dated 20th March 1953, for a sum of Rs. 14,000 from Malkarjanappa Veerappa Halkude and Sidramappa Malkarjun Halkude of Sholapur.'
11. It may be seen that the claim of the plaintiff as mentioned in the said para is three-fold: (a) that the suit premises are a joint family property, (b), that the joint family consists of the plaintiff and defendants 5 to 11 and (c) that the suit premises were purchased by the said Doddappa as a constituent of the said joint family.
12. In the written statement filed on behalf of defendants 1 and 2, adverting to para 2 of the plaint, the defendants aver as follows:--
'The averments in plaint paragraph 2 that plaintiff and defendants 5 to 11 constitute a joint Hindu family are hereby denied. The suit property belongs to defendant No. 2. Doddappa Nagappa Chincholi was not the owner of the same. An ostensible sale deed in the name of Doddappa Nagappa Chincholi was taken by defendant No. 2 on 20th March 1953 and since then she has been in the enjoyment of the said property as owner,'
Seen in the context of the allegations made in the plaint, it will have to be inferred that there is no express denial by defendants 1 and 2 of the claim that the property referred to in para 1 of the plaint, (viz. the suit premises) was the joint family property. This absence of denial, in our opinion, should be a determining factor in assessing evidence led on behalf of the parties in regard to the principal argument that has been urged on behalf of defendants 1 and 2 before us in the present appeal, viz. that the finding made by the learned Judge to the effect that the suit premises belonged to the H.U.F. of which, at the time of purchase thereof, the said Doddappa was a member and of which the plaintiff is the Karta is untenable.
13. The present suit is a successor to an earlier suit which was filed by the plaintiff being Suit No. 327 of 1961. The said suit was filed against defendants 1 and 2. The claim in the said suit was for recovery of possession of the suit premises. The allegation upon which the said suit was founded by the plaintiff was that he was entitled to the suit premises by virtue of his being the legal heir, having been adopted by the said Doddappa according to the family custom as also being a surviving member of the joint family of the said deceased Doddappa. In the said suit, the plaintiff's claim was resisted by defendants 1 and 2 by setting up a Will allegedly dated 21st April 1953 alleged to have been execut-ed by the said Doddappa. The said suit of the plaintiff was dismissed inter alia on the ground that the adoption of the plaintiff was 'not proved' or 'was invalid'. An appeal against the decree in the said suit was allowed to be withdrawn by the appellate Court with liberty to the (plaintiff to file a fresh suit in respect of the same cause of action. In the present suit, it is of great significance to observe, that the plaintiff has given a go-bye to his claim based on the alleged adoption and defendants 1 and 2 have given up their claim to the suit premises by virtue of the alleged will dated 21st April 1953. With this background to the earlier litigation and the pleadings between the parties the evidence led on behalf of the parties may be examined.
14. In his deposition the plaintiff inter alia claimed that the suit premises be-' longed to the H. U. F. of which the .plaintiff and defendants 5 to 11 were the members. The plaintiff also deposed that the said joint family had extensive assets at several places such as Shahapur, Hosur. Sholapur, Vaskera and Hallisagar. He stated that the joint family had two to three shops, four to five houses and about 100 acres of land at Shahapur. At Sholapur, according to the plaintiff, the H. U. F. owned a shop and a bungalow. The shop, the plaintiff stated in his examination-in-chief, was more than 100 years old. The plaintiff also produced documentary evidence in the shape of record of rights pertaining to the estate belonging to the said H. U. F. The plaintiff further claimed that the Sholapur shop was yielding an annual rent of Rs. 1,400/-. The plaintiff also asserted, in his examination-in-chief that the said Doddappa was the member of the H. U. F. The said Doddappa died in 1954. The said Doddappa was joint with his brothers till the time of his death. One Iramma, wife of the said Doddappa, also stayed with the joint family and continued to stay with the joint family even after the death of the said Doddappa. The plaintiff asserted that the family was joint before as well as after the death of the said Doddappa. In regard to the acquisition of the suit premises, the plaintiff stated as follows:--
'Doddappa purchased the suit bungalow before about 15 years, for Rs. 14,000/-. The amount of consideration belonged to our joint family.'
15. In his cross-examination, on the question of acquisition of the suit premises, and main thrust was to dispute the acquisition on behalf of the H. U. F, and inter alia to establish that the acquisition was by Doddappa or that the said Doddappa was separate from the other members of his family. In reply to the questions in that behalf, the plaintiff in an unshaken piece of testimony asserted that the said Doddappa was not carrying on any business alone but that the said business was done by the said Doddappa jointly with the plaintiff. The exact words in which the said assertion in the testimony was made read as follows:--
'It is not true that Doddappa was alone doing his business till his death. He was popularly known and called as Sahukar. Doddappa as well as myself were doing the business since beginning.' The plaintiff further reiterated the joint family status in the following words:--
'All of us including Gangadharappa were joint that time. The estate that stood in the name of Gangadharappa went to Guttappa. He was younger than me. Some estate also stood in the name of my uncle Doddappa. Doddappa was about 50 years old when he died.'
16. Shri Shah, the learned Counsel, characterises Doddappa as a person who does not have any regard for truth. The learned Counsel comments that on several vital aspects of his evidence the said Doddappa showed his willingness to ignore the truth and utter falsehoods. The learned Counsel calls attention to the earlier statements with which the said Doddappa was said to have been confronted in his cross-examination. In his cross-examination the plaintiff admitted the fact that the said Doddappa was not his father even though in the proceedings for the grant of a succession certificate filed by the plaintiff in the District Court, Gulberga, the plaintiff had represented himself to be the son of Doddappa. This statement was shown to the plaintiff and the plaintiff stated as follows :--
'Doddappa was not my father. I have obtained succession certificate from Gulbarga Court by representing that I am the son of Doddappa. This much is true that thereby I made a false representation to the Court to that effect.'
The plaintiff has further admitted in his cross-examination to the effect that in the said proceedings in the Gulbarga Court he had also made false representation to the effect that the three daughtersof Doddappa were his real sisters, whereas the fact was that the said daughters were the cousin sisters of the plaintiff. Strongly relying upon the aforesaid admissions of the plaintiff, the learned Counsel submits that the entire evidence of the plaintiff must be discarded. We are afraid, this is not permissible. It is an established law that a witness may be false in parts but may still be true in regard to certain other parts. Moreover, we find sufficient corroboration in regard to the testimony of the plaintiff on the question of the joint family status of himself and Defendants 5 to 11 as will be seen hereinafter.
17. One Bapugouda RayappagoudaPatil was examined on behalf of the plaintiff. The said witness claimed that he had known the plaintiff's family for more than 20 years. In his examination-in-chief the said witness deposed to the fact that all the members were staying jointly and that their estate was also joint as far as it was known to the said witness. The said witness referred to the said Doddappa and deposed to his death some 13 years back. He also stated that the said Doddappa was living jointly with his family till his death. He also deposed to the fact that one Iramma, Defendant 6 in the proceedings, was the widow of the said Doddappa and that the said widow was also staying with the plaintiff and his family members. It it undoubtedly true that in the cross-examination of the said witness a point was made to the effect that the plaintiff was a co-worker of the said witness who was an M. L. A. In our opinion, the mere fact of association by reason of social or political work cannot by itself shake the credibility of a witness who impresses with his forthright evidence. The said Patil, it appears, had known the family of the plaintiff for several years and could, therefore, depose to the family status of the various members of the plaintiff's family. The testimony of the said witness leaves no manner of doubt that the family of the plaintiff and Defendants 5 to 11 which also included the widow of the said Doddappa lived jointly at Shahapur.
18. Of greater importance, however, is the testimony of Sheelvantawwa Basappa Akki, daughter of one Chanba-sappa. The said Chanbasappa, it may be seen, was the brother of the grandfather of the plaintiff. When the deposition of the said Sheelvantawwa was taken, shewas of 60 years of age. In her examination-in-chief the witness in unmistakable terms deposed to the joint family status in the following words:--
'Doddappa had no male issues, but has got his wife and daughters. Iramma is his wife, who is at present staying with the plaintiff. All these persons stayed jointly. This family has got estates at Shahapur. Sholapur, Vaskeri and Hosur. All the family lands are looked after by the Plaintiff. Doddappa was also living jointly with other members of his family till his death. Even after his death,, his wife is staying jointly with the Plaintiff.'
In the cross-examination the said witness reiterated the joint family status of the family. There is nothing in the cross-examination of the said witness which could shake the veracity of her assertion in regard to the joint family status. It is undoubtedly true that the said witness also deposed to the alleged adoption of the plaintiff and the custom in her family whereunder a person could describe himself as a son of his uncle. The said witness deposed that no formality or ceremony was required in connection with the said custom. This part of the testimony of the witness appears to be contrary to the evidence of another witness, one Sayed Hamza Sheikh Imam who deposed that certain ceremonies were performed in connection with the said family custom. This contradiction, however, does not seriously impeach the veracity of the assertion of the said witness to the effect that the members belonging to the family of the prepositor Sheelvantappa lived jointly and that the said Doddappa lived with the family jointly till his death and that even after his death his wife continued to live with the plaintiff at Shahapur. The joint family status of the plaintiff and Defendants 5 to 11 is also deposed to by the two witnesses examined on behalf of the plaintiff, viz. Sayed Hamza Sheikh Imam and Sangappa Desai. The said Sayed Hamza Sheikh Imam was a Village Patil. He worked as Village Patil for 15 years. He was a permanent resident of Shahapur. The witness owned about 100 acres of land and a house. Such a witness, in absence of any contra-evidence, must be held to be an independent witness worthy of credence. The said witness in his deposition clearly stated that the plaintiff's father was one Sangappa and that the said Sangappa had three sons. According to the said witness they were all joint. The witness also referredto the two brothers of Sangappa, viz. Sidramappa and Doddappa. The witness further deposed that the three brothers stayed jointly. He also deposed to the fact that Iramma, the wife of Doddappa, stayed jointly with the plaintiff. The witness also referred to the extent of the estate owned by the joint family and referred to the said estate as 'joint.' There is nothing in the cross-examination of the said witness which would induce us to disbelieve the said witness. It is true that in cross-examination the said witness admitted the fact that the estate of the said joint family 'stood in the names differently of these persons although they were staying joint.' The said witness however deposed that the 'assessment' of the various properties was being paid sometimes by Doddappa and sometimes by the plaintiff. The witness further deposed to the fact that the 'assessment' in respect of the different lands which stood in different names were paid in a lump sum. We do not find any contradiction in the deposition of the said witness. The said witness fairly admitted the fact that the various pieces of lands stood in the names of different members of the Chincholi family, but he also deposed to the fact that the land revenue in respect thereof was paid sometimes by Doddappa and sometimes by the plaintiff and that the amounts were paid in lump sum. This unmistakably shows the common source from out of which the various amounts which were payable in respect of the assessment of the said pieces of lands were paid. This buttresses the claim of the properties being jointly held by the said H.U.F.
19. The last witness Sangappa was a Revenue Patil. He claimed that he owned about 75 acres of land and had known the plaintiff's family. The said witness referred to the fact of the plaintiff being joint with defendants 5 to 11. He also deposed to the estate being joint. We have been shown nothing to take the view that the testimony of this witness does not deserve any consideration or otherwise deserves to be rejected.
20. A combined reading of the evidence led on behalf of the plaintiff leaves no manner of doubt as to the joint family status of the plaintiff and Defendants 5 to 11. It will have to be held upon the basis of the said evidence that as claimed by the plaintiff, the plaintiff and Defendants 5 to 11 constituted ajoint family and that the said Doddappa was a member of the said joint Hindu family at the time when the said suit premises were purchased toy him and even thereafter. It will also have to be held that after the death of the said Doddappa his widow Iramma continued to remain jointly with the plaintiff and other members of the plaintiff's family, it is in the context of this basic finding of the joint status of the plaintiff and Defendants 5 to 11 that the question as to whether the suit premises constituted the joint family property will have to be considered,
21. It is undoubtedly true, as contended by the learned Counsel Shri Shah, that there is no presumption under Hindu Law that a particular acquisition is for the purposes of or is the acquisition of a Hindu undivided family. Such a presumption, however, is not a presumption of law but a presumption of fact. In order, therefore, to determine the question as to whether a particular piece of property belongs to a particular H. U. F., the touch-stone is the evidence in that regard. There are several circumstances which suggest that the acquisition of the suit premises was for the purposes of the H. U. F. or was by the H. U. F. In other words, the circumstances do establish the joint family character of the suit premises. There is no running away from the basis factual position, as observed above, that the family prior to the acquisition of the suit premises and subsequent thereto lived jointly. The joint family status of the family down to the date of the suit intrinsically renders the claim of the plaintiff probable. This probability becomes certainty when it is seen that the members of the various branches belonging to the family of the prepositor Sheel-vantappa, even though - were Defendants to the suit, did not resist the claim of the plaintiff. On the contrary, as seen from the evidence of Sheelvantappa, the claim of the plaintiff in that behalf has been supported by the members of the said joint family.
The witnesses examined by the plaintiff deposed to the extent of the estate of the said joint family. It emerges from the evidence that the said joint family inter alia owned a shop which was doing business for approximately 100 years. It also emerges from the evidence that the estate of the joint family is at several places including Shahapur, Hosur, Shola-pur, Vaskera and Hailisagar. The familyowns 4 to 5 houses as also 2 to 3 shops and an agricultural piece of land admeasuring about 100 acres. The extent of the estate, which it is not disputed, belonging to the H. U. F. of the prepositor Sheelvantappa, seen in the context of the strength of the coparcenary, leads to the reasonable inference that there was sufficient nucleus for the acquisition of the suit premises in the year 1953 by the said H. U. F. It is not disputed by Shri Shah that prior to the partition alleged by Defendants 1 and 2 the family of the descendants of the said Sheelvantappa was joint. Defendants 1 and 2 failed to prove the alleged partition. No arguments have been addressed on behalf of Defendants 1 and 2 before us to assail the finding made by the learned trial Judge negativing the case of the alleged partition. The presumption, therefore, would be that the H. U. F, which existed prior thereto continued to be joint. The joint character of the H. U. F. is established by the unassailable inference of the joint status of the members of the family of the plaintiff and Defendants 5 to 11. In these circumstances, it is reasonable to hold that the said Doddappa, when he acquired the suit premises by virtue of the conveyance dated 20th March 1953, acquired them on behalf of the joint family i. e. H. U. F. of the descendants of the said Sheelvantappa. We have, therefore, no hesitation in affirming the finding made by the learned trial Judge that the suit premises were purchased by the said Doddappa as a constituent of the joint family comprising of the descendants of the prepositor Sheelvantappa.
22. The next question is whether the learned trial Judge had and this Court has jurisdiction to entertain and decree the claim of the plaintiff against Defendants 3 and 4 who claim to be tenants of the ground floor of the suit premises. Before the learned trial Judge the determination of the question turned on the answer to two issues, viz. whether the plaintiff was entitled to evict Defendants 3 and 4 under the provisions of the Bombay Rent Act and whether the Court 'has no jurisdiction to try the suit'? In paragraph 23 of the judgment, the learned Judge took the view that having regard to the fact that Defendants 3 and 4 disclaimed the title of the plaintiff to the suit premises the said Defendants were not entitled to the protection of the Bombay Rent Act. He also took the view that the Defendants 3 and 4,in the circumstances, were not entitled to 'contend that this Court has no jurisdiction to try the present suit.' In other words, the learned Judge was of the opinion that having regard to the disclaimer or the denial of title of the plaintiff to the suit premises by Defendants 3 and 4 the provisions of the Bombay Rent Act were not attracted and that being so, the said Defendants were not only not entitled to the protection of the said Act but that he had jurisdiction to try the suit.
23. Shri Bhimrao Naik, the learned Counsel for Defendants 3 and 4, contendsthat the Civil Court has no jurisdiction to entertain and try the plaintiff's claim for eviction against the Defendants 3 and 4. He submits that according to the plaintiff Defendants 3 and 4 were for-merely the tenants of the landlords who sold the suit premises to said Doddappa Nagappa and the said Defendants were attorned to him. He further says that the plaintiff claims that Defendants 3 and 4 did not pay any rent to the said Doddappa or to the plaintiff during the whole period between the date of the purchase in 1953 and date of the suit. When called upon by the plaintiff by the letter dated 12th Feb. 1961, the Defendants 3 and 4 disclaimed the title of the plaintiff. The plaintiff's claim, according to Shri Bhimrao Naik, has, therefore, to be tested in the context of the aforesaid case. Shri Bhimrao Naik complains that the plaintiff did not produce the notice and the reply nor did the plaintiff lead any evidence aliunde in respect of the plea of disclaimer. He further submits that the case of disclaimer, which is undoubtedly evidenced in the written statement of Defendants 3 and 4 is of no avail because jurisdiction of the Court to try the suit depends on the averments in the plaint. His further submission is that a disclaimer, under Section 111 of the T. P. Act, only results in the determination of tenancy with the consequence that under Section 5(11) of the Bombay Rent Act, the tenant continues to be a statutory tenant and a claim for his eviction is exclusively triable by the Court constituted under Section 28 of the Bombay Rent Act and not by a Civil Court.
24. Shri Dalvi the learned counsel for the plaintiff, seeks to meet the contentions raised on behalf of Defendants 3 and 4 by submitting that Defendants 3 and 4 claim title through Defendants 1 and 2 and not through the plaintiff, Thederivative title of Defendants 3 and 4 as tenants through Defendants 1 and 2 failed by reason of the finding that Defendants 1 and 2 were trespassers. The Defendants 1 and 2 could not create any tenancy in favour of Defendants 3 and 4. There being no tenancy vis-a-vis the plaintiff, the Bombay Rent Act had and has no application.
25. Before adverting to the rival contentions of the learned Counsel, it would be necessary to have a glimpse at the pleadings between the parties. In para 9 of the plaint the plaintiff stated that the father of Defendants 3 and 4 was attorned as tenant to the deceased Nagappa under the deed of conveyance dated 20th March 1953. The -plaintiff further alleged that he had sent a notice dated 12ih February 1961 calling upon Defendants 3 and 4 inter alia to pay the arrears of rent. The plaintiff further alleged that:
'By a false and fraudulent reply dated 22nd Feb. 1961, Defendants Nos. 3 and 4 began to disclaim the title of the plaintiff to the suit premises and also began to assert that the rent of the portion of the premises occupied by them was paid by them from time to time to the respective owners concerned and that nothing was in arrears and that they were not prepared to acknowledge the plaintiff as the owner of the suit premises.'
26. It must be observed that these allegations raise a plea of a disclaimer prior to the suit: the suit having been filed on 4th July. 1966.
27. In para 10 of the plaint the plaintiff further alleged that despite the notices served on Defendants 1 to 4, the Defendants refused to hand over the possession of the suit premises to the plaintiff as also to pay the arrears of rent or compensation for wrongful use and occupation of the suit premises. In the written statement filed on behalf of Defendants 3 and 4, in para 3, it was claimed by Defendants 3 and 4 that the said Defendants were 'paying the rent of the suit premises to Defendants 1 and 2 as the owners from the last 13 years.' In para 4 of the written statement the Defendants further claimed that 'since the Defendants are not liable to pay the amount to the plaintiffs' aforesaid claim does not stand.' In para & of the written statement Defendants 3 and 4 claimed as follows:--
'The relation between the plaintiff and the Defendants as the landlord and tenants was never created, Since therent was paid to Defendants Nos. 1 and 2, they are the landlords of the plaintiff.'
A fair reading of the averments made in the plaint abstracted above as also those made in the written statement abstracted above clearly shows that the plea of the Defendants 3 and 4 was that the plaintiff was never the landlord of Defendants 3 and 4 in respect of the ground floor of the suit premises and that according to Defendants 3 and 4 their landlords in respect of the ground floor of the suit premises were Defendants 1 and 2. In other words, according to the said Defendants, there did not exist any relationship of landlord and tenant between the plaintiff and Defendants 3 and 4. If there did not exist any relationship of landlord and tenant between the plaintiff and Defendants 3 and 4, we are unable to appreciate as to how could the provisions of the Bombay Rent Act come to the rescue of Defendants 3 and 4 in resisting the claims of the plaintiff against Defendants 3 and 4 for a decree of eviction based on the title of the plantiff to the suit premises. Under Section 28 of the Bombay Rent Act, the basic requirement is the existence of such a relationship. In cases where, on the showing of a defendant, there does not exist any relationship of landlord and tenant between the plaintiff as against the Defendant in question, the embargo placed by the said section on the jurisdiction of the Civil Court would not be attracted.
28. 'The learned Counsel for Defendants 3 and 4 strenuously argues that the plaintiff came to Court with an allegation of disclaimer and in order to succeed against Defendants 3 and 4, the plaintiff had to prove the said case. The plaintiff having failed to establish the said plea, says the learned Counsel, he was not entitled to any decree. We do not find any substance in the contention. It is true that the plaintiff did not produce notice dated 12th Feb. 1961 or the reply dated 22nd Feb., 1961. But as already seen above, the Defendants 3 and 4 in their written statement not merely denied allegations in the plaint but claimed to be the tenants of Defendants 1 and 2. It is also not controverted that defendants 3 and 4 did not pay any rent to the plaintiff. It is difficult to see how was there no disclaimer as claimed by the plaintiff. The circumstances of the case and the state of pleadings between the parties relieved the plaintiff from leading any furtherevidence to prove the facts as to disclaimer notwithstanding the meaningless denial thereof by the Defendants 3 and 4 in earlier part of their written statement. The virtual admission of disclaimer by the Defendants 3 and 4 unmistakably reflected in non-payment of any rent to the plaintiff and claim of payment of rent to Defendants 1 and 2 establish the veracity of the plaintiff's claim. The learned Counsel's reliance on dicta in Maharaja Jeypore v. Rukmani AIR 1919 PC 1, is inapposite. The present is not a case where the plea of disclaimer is raised for the first time in the written statement and claim for eviction is founded on the basis thereof.
29. Shri Bhimrao Naik contends that even though there was a disclaimer by Defendants 3 and 4, yet all that could be said in favour of the plaintiff in that behalf is that the contractual tenancy of Defendants 3 and 4 whose father was attorned as a tenant in 1953 came to an end and the said Defendants became statutory tenants. He submits that the statutory tenancy of Defendants 3 and 4 is protected by the provisions of the Bombay Rent Act and a decree of eviction against them could be passed only in accordance with and under the provisions of the said Act. The argument is prima facie attractive but is without substance. A combined reading of the provisions of Section 111 of the Transfer of Property Act and Ss. 5(3), 5(11), 12, 13 and 28 of the Bombay Rent Act, appreciated in the setting of the intendment, purposes and scheme of the latter Act, belies such a contention.
30. Section 111 of the T. P. Act provides for determination of a lease. It contemplates amongst other things determination of a lease by forfeiture vide clause (g) thereof. The said clause (g) is in three parts. The first part deals with the breaches by the lessee of the express conditions which provide for right of reentry of the lessor. The Second part, which is material, deals with a case where 'the lessee renounces his character as such by setting up a title in a third person or by claiming a title in himself.' The third part, which is not material, deals with the insolvency of the lessee providing for re-entry on such a contingency happening. A plain reading of cls. (a) to (h) of Section 111 shows that a lease can be determined by reason of objective factors contemplated ,by theterms of the lease themselves or factors which give right to a lessor to determine the lease or factors which are the result of a volition of the lessee. In the last category fall three contingencies, viz. express surrender, implied surrender and disclaimer, i. e. renunciation by a lessee of his character as a lessee. In the present case, we are concerned with the last aspect seen within the perimeter of the law enshrined in the provisions of the Bombay Rent Act.
31. The Bombay Rent Act, as its preamble and the Statement of Objects and Reasons show, is an Act enacted for controlling rents and rates of hotels, lodging houses and premises, for regulating repairs of the premises and for prevention of unreasonable evictions of tenants or lodgers by the landlords. Section 5(3) of the Act defines a landlord as a 'person who is for the time being, receiving, or entitled to receive, rent in respect of any premises whether on his own account or on account, or on behalf, or for the benefit of any other person.' Section 5(11) defines a tenant as 'any person by whom or on whose account rent is payable for any premises.' Under Section 12 of the said Act, a landlord is not entitled to recover possession of any premises so long as a tenant pays or is ready and willing to pay the amount of the standard rent and permitted increases and observes and performs the other conditions of his tenancy, in so far as the terms of his tenancy are not inconsistent with the provisions of the said Act. Sub-Section. (2) and (3) of Section 12 regulate the right of the landlord for eviction on the ground of non-payment of rent. Section 12 contemplates numerous conditions which if fulfilled by a tenant disable a landlord from claiming eviction of a tenant. The contingencies enumerated are the readiness and willingness of the tenant to pay rent as also observance by him of the terms and conditions of his contractual tenancy in so far as the same are not inconsistent with the provisions of the Bombay Rent Act. Non-payment is the other condition postulated thereunder. But the right of the landlord with regard thereto is regulated in the manner prescribed by Sub-section (2) and (3) of the said section. Section 13 enumerates the grounds upon which the landlord is entitled to recover possession of the premises upon his satisfying the Court in that behalf. It may be observed that the Bombay Rent Act does not contain several inhibitory features which are found in several tenancy laws enacted to provide security of tenure to the tenants of agricultural lands. Such tenancy laws normally provide that no landlord of an agricultural land can recover possession from a tenant of such a land save and except in accordance with the provisions of such an Act. It is also a normal feature of such tenancy laws to stipulate that it is not necessary that a tenant should be a tenant of a particular landlord, it being sufficient for the tenant to be in rightful occupation of a piece of agricultural land to claim protection of such tenancy laws. Furthermore, it may be seen that some of the tenancy legislations expressly provide that surrender could only be by writing and that the factum of such surrender has to be certified by a revenue authority in order to be effective. No such provisions have been made in the Bombay Rent Act. Absence of such provisions in the Bombay Rent Act is significant and sheds considerable light on the scheme thereof.
32. A conspectus of legal (provisions gives rise to the legitimate inference that there must be in point of fact a contractual tenancy in existence before any statutory tenancy can be posited in favour of a tenant. It is also clear that a tenant, whose contractual tenancy is determined, is a tenant within the inclusive definition of the word 'tenant' in Section 5(11) of the Bombay Rent Act. Ordinarily, when a landlord determines a contractual tenancy and claims eviction against the tenant whose tenancy is determined, his claim is triable exclusively by the Court contemplated under Section 28 of the Act. This is so because, notwithstanding the determination of contractual tenancy by the landlord, the tenant is entitled to retain possession till the landlord succeeds in getting a decree for eviction against him on grounds set out in the Bombay Rent Act. This is a statutory protection afforded to a tenant by the Bombay Rent Act, under which a unilateral determination by the landlord of contractual tenancy does not become effective proprio vigore. Such determination yields to statutory tenancy which is protected by the Bombay Rent Act. But in cases where there is surrender of tenancy by the tenant or there is disclaimer, the situation is qualitatively different and is governed toy different legal principles.
33. Shri Bhimrao Naik, the learned counsel for defendants 3 and 4, fairlyconcedes and, in our opinion, correctly, that in a case where a tenant surrenders the premises to a landlord, the recovery of the premises by the landlord outside the provisions of the Bombay Rent Act is not illegal. The learned counsel does not dispute the proposition that such a surrender can be not only of contractual tenancy but also of statutory tenancy. The concession made by the learned counsel is in accordance with the scheme of law and the relevant provisions thereof. It is an established principle under the Rent Restriction Acts (the Bombay Rent Act being one of such Acts) that the statutory tenancies contemplated under such Acts spring only from a previous contractual relationship of landlord and tenant. In absence of a previous contractual relationship of landlord and tenant, no statutory tenancy can be spelt in favour of a tenant even by an order of the Court. For a statutory tenancy to arise, the reported judgments show, there must always have been at an earlier stage a contractual relationship between the tenant and the landlord. See for example Blake v. Smith, (1921) 2 KB 685. That was a case where, after termination of a contractual tenancy, the tenant surrendered his possession but he re-entered as a trespasser and claimed protection of the Rent Restriction Acts. Such a claim was negatived on the ground that if after the termination of the tenancy the tenant goes out but subsequently re-enters as a trespasser, he cannot found a statutory tenancy upon the basis of an earlier contractual tenancy,
34. The rationale of the rule laid down by above-mentioned judgment lies in the distinction that is made between cases where as a result of proprio motu of a tenant there is cessation of the relationship of landlord and tenant between the owner and himself and where cessation is brought about by other factors. The distinction can also be expressed as between a unilateral situation where a landlord determines the tenancy and seeks to re-enter and a bilateral situation where a tenant does something (say a surrender or a disclaimer) and the landlord accepting the same proceeds to recover (possession. In situations which are the result of a tenant's own voluntary actions (proprio motu), the Courts do not come to the rescue of a tenant to imply statutory tenancy and statutory protection in hisfavour and to place restrictions which are imposed by law on the right of the landlords to recover possession from tenants. Seen in this context, the concession made by the learned Counsel as to the effect of surrender is a very valid concession and is in consonance with the legal principle, because the effect of a surrender is the cessation of a relationship of a landlord and a tenant which is a sine qua non for coming into play of the statutory tenancy and the consequent statutory prohibitions or restrictions on the right of a landlord to recover possession of premises from such a statutory tenant. The result of surrender is the destruction of the title of a tenant. It would be a trite law to observe that tenancy is a title which the tenant is entitled to renounce and thereby also renounce the protection which is conferred for his benefit by the provisions of the Rent Restriction Acts.
35. A disclaimer, as the provisions of Section 111 of the T. P. Act clearly indicate, is a renunciation by a lessee of his title as a tenant. If such a lessee is a contractual tenant, then it is renunciation of his title as a contractual tenant. The effect of such a renunciation must of necessity be the cessation of the relationship of landlord and tenant between such a lessee and his lessor. Such a cessation of the relationship militates against the springing into action of a statutory tenancy in favour of such a lessee, because, in principle, the case of such a disclaimer is not at all distinguishable from that of a surrender adverted to above. The effect of such a disclaimer, in our opinion, is that it brings to an end the relationship of landlord and tenant; the cessation being by operation of law resulting from proprio motu (a voluntary act) of the tenant. We do not see any reason to imply in favour of such a tenant the sprouting of a statutory tenancy or the operation of the restrictive provisions of the Bombay Rent Act in his favour. Similarly, statutory tenancies can also be disclaimed so as to render inapplicable the provisions of the Bombay Rent Act. A tenant disclaims the title of his landlord who accepts such disclaimer and seeks eviction upon the basis thereof. The voluntary action of the tenant and its acceptance by the landlord results in a bilateral determination of the tenancy and takes the case out of the pale of Section 5(11) of the Bombay Rent Act. Statutory protection under the Act is to a tenant who claims tobe a tenant and who is ready and willing to abide by the terms of the tenancy. A tenant who disclaims his tenancy does not fulfil the aforesaid qualifications. A tenant disclaiming the title of the claimant landlord and his relationship of tenancy literally knocks out the very bottom of statutory protection. This amounts to disclaiming the benefits available under the Bombay Rent Act. We are firmly of the view that it is open to a person to bring about by his own voluntary actions a situation which results in the cessation of relationship of landlord and tenant so as to render the provisions of the Bombay Rent Act inapplicable to the facts of his case. In such cases the dispute between the claimant owner and the occupant ceases to be a dispute between a landlord and a tenant in regard to any matter covered by the Bombay Rent Act. It becomes a dispute of titles and falls outside the purview of Section 28 of the Bombay Rent Act. In our opinion, the Bombay Rent Act does postulate an exercise in futility where a plaintiff is driven to the Rent Court even though the defendants do not accept him as then landlord.
36. The view that we have taken above is supported by a considerable body of legal opinion. In Reeves v Davis (1921) 2 KB 486, the English Court of Appeal took the view that the effect of disclaimer by a trustee in bankruptcy was to deprive the tenant of any further interest in the demised premises and consequently the tenant was debarred from relying on a statutory tenancy under Increases of Rent Act Similarly in Strafford v. Levy (1946) All ER 286, where a trustee in bankruptcy of the insolvent did not disclaim or assign the lease but retained the premises and continued to pay rent as also permitted the tenant and his family to reside in the premises but when the lease having been determined the trustee in bankruptcy did not claim any further interest in the premises, it was held that the tenant did not become a statutory tenant under the Rent Restriction Acts. These authorities show that a tenant who becomes insolvent and whose trustee in bankruptcy either disclaims the tenancy or does not claim any interest in tenancy, is not entitled to claim any statutory tenancy. This is on the principle that where by the statute the interest of a tenant is entirely divested or is taken away from him, the tenant has no more interest in the property than any passer-by in thestreet. A disclaimer by a tenant, as opined in Warner v. Sampson (1958) 1 All ER 314 results in divesting of his right as a tenant by operation of law. This divesting, it cannot be gainsaid, is the result of the voluntary act of the tenant himself. In the said case, Ashworth J. articulated the reason of the rule at page 315 as follows:--
'...... It seems to me strange to suggest that the lessee may, notwithstanding that denial, ask for relief on the footing that the lease exists.'
37. This Court in Manilal Motilal v. Thakorlal, Civil Revn. Appln. No. 344 of 1944, decided on 29th Jan. 1945 (un-reported) held to a similar effect. In that case which was under the Rent Act, Macklin J. repelled the claim for protection on the ground of the denial by the tenant of his tenancy. The ipsissima verba of the learned Judge run as follows:--
'The reason which led the court toselect the applicant for eviction is that he had denied his tenancy and stated that the real tenant was his daughter. If that is really so, then I do not know what cause of complaint he has. If he is not a tenant, there is no hardship in evicting him. If he is a tenant, then he has denied his tenancy and as such is not entitled to protection.'
38. The learned counsel calls attention to a decision of this Court in Dattatraya Krishna v. Jairam Ganesh : AIR1965Bom177 . We are afraid, the ratio of the said decision is not, relevant. It was a case where a suit was filed in a Court for a declaration that a sub-tenancy was granted in favour of the plaintiff by the defendant after the coming into force of the Bombay Rent Act. The plaintiff in that suit had also prayed for a consequential injunction. The view taken on the facts of that case was that having regard to the provisions of Section 28 of the Bombay Rent Act, the Civil Court had no jurisdiction to entertain such a suit. We do not see anything in the said judgment which can even remotely support the contention, viz. that even in a case where it is the common ground between the parties that there did not exist any relationship of landlord and tenant, the provisions of the said Bombay Rent Act would still be applicable and would debar an owner of the property from recovering possession thereof save and except in accordance with the provisions of the Bombay Rent Act, Equally unhelpful is the reliance of the learned counsel on the decision of the Supreme Court in Sushila Kashinath v. Harilal Govindji : 2SCR950 , It is undoubtedly true that the view taken by the Supreme Court in that case was that there could be situations where it may not be necessary that there must exist a relationship of a landlord and a tenant but that it would be enough to attract the bar of jurisdiction postulated by Section 28 thereof if a claim or a question arose under the provisions of the Bombay Rent Act. But in the said judgment the Supreme Court in terms accepted the position that in actions for the recovery of rent or possession of premises to which the provisions of Part II of the Bombay Rent Act applied, it would be necessary to establish the relationship of landlord and tenant. In that case the plaintiff's claim was founded on a loan given to the defendants for the purposes of financing the erection of a building on land held by the defendants as owners. The document was registered and it inter aila contained conditions which came within the cognisance of Section 18(3) of the Bombay Rent Act. The suit filed by the plaintiff was for a declaration that the amount advanced was a charge on the building and the land on which it was constructed and that the plaintiff was entitled to recover the amount mentioned in the agreement. The suit was filed in the Small Cause Court, being the Court contemplated by Section 28 of the Bombay Rent Act. It was in the context of that controversy that the Supreme Court dealt with the relative scope of Section 18(3) and 28 of the Bombay Rent Act. The basic perimeter, therefore, before the Supreme Court was the impact of Section 18 on Section 28 of the Bombay Rent Act; the Supreme Court not being called upon to decide any controversy in regard to the right of a landlord to recover possession of the premises. After noticing the provisions of Section 18 and 28 of the Bombay Rent Act, the Supreme Court observed at page 325 (of Bom LR): (at p. 1499 of AIR) as follows:--
'Having due regard to the aspects mentioned above and the provisions of Ss. 18(3) and 28(1) in our opinion it is not necessary that there should be a relationship of landlord and tenant inrespect of all the matters covered bySection. 28(1) of the Act, so as to give jurisdiction to the Court of Small Causes. No doubt, one type of action contemplated under that section, viz., a suit or proceeding for recovery of rent or possession of any premises to which any of the provisions of Part II apply may be between a landlord and a tenant; but in respect of the other matters dealt with in that Sub-section, it is not necessary that the relationship of landlord and tenant should exist between the_ parties before the Court,'
It is thus every clear, upon the observations of the Supreme Court, that in a situation where a landlord seeks recovery of possession of any premises, the relationship of landlord and tenant is a sine qua non for the attractability of the provisions of Section 28 of the Act. If such a condition is not fulfilled, Section 28 is out of the way and it is open to the owner of the property to recover possession of the premises de hors the provisions of the Bombay Rent Act.
39. On the facts of this case, it will have to be inferred that as a result of the disclaimer, which disclaimer as found by us was much prior to the suit, the tenancy, if any, of defendants 3 and 4 came to an end. At' the time of the suit or even prior thereto there did not exist any relationship of landlord and tenant between the plaintiff and defendants 3 and 4, Defendants 3 and 4 in their written statement categorically took up the position that there never existed any relationship of landlord and tenant between them and the plaintiff. Defendants 3 and 4, on the contrary, claimed the tenancy from defendants 1 and 2, who, having regard to the findings made by us, have been proved to be trespassers on the suit premises. In these circumstances, it will have to be held that the defendants were not entitled to invoke the provisions of the Bombay Rent Act and that the bar of the jurisdiction of the Civil Court postulated by Section 28 of the Bombay Rent Act did not and does not apply to the facts of the case.
40. In the result, the Appeals both by defendants 1 and 2 as also by defendants 3 and 4 fail and are dismissed with costs. The decree of the learned trial Judge is affirmed,
41. Shri Bhimrao Naik, the learned counsel for defendants 3 and 4, appliedon behalf of defendant 3 for leave to appeal to the Supreme Court. Leave refused.
42. Appeals dismissed.