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Bai Manuben and ors. Vs. Bhimabhai Nagarji and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 1311 of 1956
Judge
Reported inAIR1958Bom471; (1958)60BOMLR122; ILR1959Bom182
ActsCode of Civil Procedure (CPC), 1908 - Sections 38 - Order 23, Rule 3; Transfer of Property Act, 1882 - Sections 105
AppellantBai Manuben and ors.
RespondentBhimabhai Nagarji and ors.
Appellant AdvocateN.C. Shah, Adv.
Respondent AdvocateJ.P. Vimadalal and ;C.S. Trivedi, Advs.
Excerpt:
.....code (act v of 1908), order xxiii, rule 3 - court recording compromise and, passing decree in suit for possession of property against defendants as trespassers--court to pass decree in terms of compromise only in so far as those terms relate to suit--whether open to defendants in execution proceedings to contend that terms of compromise create new lease in their favour--rent--mention of amount as rent, for which liability created under decree, whether creates tenancy between person liable to pay amount and person to whom it is payable.;when the court is called upon to record a compromise, in a suit for possession of property from the defendants on the ground that they are trespassers, and pass a decree in terms thereof, the court can pass a decree in terms of the compromise only in..........on 6-4-1953, that is to say, after the consent decree was passed by the court in the aforesaid suit.5. defendants did not hand over possession of the property to the plaintiffs on 31-5-1954, as required by the terms of the consent decree. plaintiffs therefore filed the present darkhast no. 48 of 1955 to execute the consent decree and recover possession of the property.6. the defendants-judgment-debtors resisted the darkhast, on the ground that the terms of the consent decree created a new lease in their favour, and that the consent decree not having been registered could not be executed against them. it may be noted that in the objections filed by the judgment-debtors to the darkhast they simply stated that they were the tenants of the plaintiffs in view of the terms embodied in the.....
Judgment:

1. The property in dispute belongs to plaintiffs Nos. 1 and 2. It consists of shop buildings on the ground floor and also of a first floor. This entire property had been leased to one Shivajirao sometime in the year, 1946, Shivajirao continued as a tenant of plaintiffs 1 and 2 till 12-7-1948, on which date he gave up possession of the property on the ground that he did not want it. Thereafter on, the same day the ground floor of the said property, which consisted of shop buildings, was leased to plaintiff No. 3; Plaintiff No. 3 got possession of the shop buildings on the same day and put his own lock on them. When Shivajirao, the original tenant of the entire properly, left the premises, it appears that some luggage of his brother Chimanrao had been kept in the shop buildings on the ground floor. On 27-7-1948 defendant No. 1, who is the wife of Chimanrao, and defendant No. 3, who is the other brother of Chimanrao, took the key from plaintiff No. 3 on representing to him that they would remove the luggage of Chimanrao. But it appears that after they took the key from plaintiff No. 3, they did not remove the luggage of Chimanrao, but illegally occupied the shop buildings of the ground floor. They then allowed defendant No. 4 to occupy them. Defendant No. 2 is defendant No. 1's son.

2. Plaintiff No. 3 filed a criminal complaint for trespass against the defendants for having illegally occupied the shop buildings, but they were acquitted on the ground that the dispute between them and him was of civil nature.

3. Thereafter on 17th of September, 1951 plaintiffs Nos. 1 and 2 and their tenant plaintiff No. 3 filed suit No. 282 of 1951 for possession of the said property from the defendants, on the ground that they were trespassers and had wrongfully occupied it. The defendants contested the suit and claimed that they were not liable to be evicted. On 16-1-1953, a compromise was arrived at between the parties to the suit, and in terms of the compromise a decree was passed by the Court. The terms of the decree are :

1. The defendants shall hand over the possession of the suit property to the plaintiff No. 3 to this suit on the day of 31st May, 1954. If plaintiff No. 3 is not willing to take possession, the defendants shall hand over the same to the plaintiffs Nos. 1 and 2 to this suit on the day of 31st May, 1954. In case of failure to hand over possession on that date, the plaintiffs shall be entitled to execute the decree in terms of the compromise and recover possession of the suit properly from the defendants.

2. The defendants have already paid to the plaintiffs the full amount of rent accrued due upto the date 31-12-1952 and the plaintiffs have received the same.

3. From 2-1-1953 to 31-5-1954 amount of rent at the rate of Rs. 21 in words rupees twenty-one only per month shall be paid by the fifth of each month by the defendants. The said amount shall be passed on by plaintiff No. 3 to plaintiffs Nos. 1 and 2. In case the defendants fail, to pay to plaintiff No. 3 the amount in respect of any three months, the plaintiffs are entitled to take possession by executing this decree in terms of consent terms.

4. It may be noted that the provisions of the Bombay Act No. 57 of 1947 were made applicable to the area and the premises in question only on 6-4-1953, that is to say, after the consent decree was passed by the Court in the aforesaid suit.

5. Defendants did not hand over possession of the property to the plaintiffs on 31-5-1954, as required by the terms of the consent decree. Plaintiffs therefore filed the present Darkhast No. 48 of 1955 to execute the consent decree and recover possession of the property.

6. The defendants-judgment-debtors resisted the darkhast, on the ground that the terms of the consent decree created a new lease in their favour, and that the consent decree not having been registered could not be executed against them. It may be noted that in the objections filed by the judgment-debtors to the darkhast they simply stated that they were the tenants of the plaintiffs in view of the terms embodied in the compromise decree. They did not state as to whether they had become the tenants of plaintiff No. 3 or of plaintiffs Nos. 1 and 2. But the receipts which are upon the record make it clear that the judgment-debtors paid the amounts in terms of the decree to plaintiff No. 3, which presumably showed that they had rendered themselves liable only to plaintiff No. 3 in regard to the amounts which they had to pay under the decree.

7. The executing Court held that the consent decree created a new lease in favour of the judgment-debtors and that the lease being for a period of more than one year required registration and that the compromise decree not being registered was not executable. Accordingly it dismissed the darkhast.

8. The plaintiffs-decree-holders preferred Civil Appeal No. 162 of 1955 in the District Court at Surat against the order passed by the executing Court. The appeal came on for hearing before the learned Assistant Judge, at Surat, who held that the terms of the consent decree did not create any new lease in favour of the judgment-debtors and allowed the appeal by directing that the darkhast should be proceeded with in accordance with law.

9. The judgment-debtors have now come in second appeal. Mr. Shah, who appears for the judgment-debtors in this second appeal, contends that the terms of the consent decree, and particularly the mention of the word 'rent' therein, make it clear that what was intended by the parties and what has been expressed by the terms of the consent decree was that there was to be a new relationship of landlord and tenant created between plaintiff No. 3 on the one hand and the judgment-debtors on the other. Mr. Shah has rightly laid stress on the use of the expression 'rent'' which has occurred in the consent decree in more than one place, and he urges that the use of the expression 'rent' was significant, and it could not be explained except on the basis of tenancy in favour of the judgment-debtors.

10. Before I deal with this contention of Mr. Shah on merits, it seems to me there is an initial difficulty in the way of the judgment-debtors' raising such contention in execution proceedings. I have already stated that the suit out of which the present darkhast proceedings have arisen had been instituted by plaintiffs Nos. 1 and 2 as owners and by plaintiff No. 3 as their tenant for possession of the suit premises on the ground that the defendants were trespassers and had wrongfully occupied the suit premises. It is to be noted that it was never the case of the plaintiffs that defendants were their tenants at any time before the institution of the suit and that the suit had been instituted after the termination of their tenancy. When there was a compromise in such a suit, that compromise was recorded by the Court, which under the provisions of Order 23, Rule 3 of the Civil Procedure Code passed a decree in accordance therewith so far as it related to the suit. The subject-matter of the suit in the present case was, as I have already stated, a claim for possession of the suit property from the defendants on the ground that they were trespassers. The Court could therefore pass an operative decree, though, in accordance with the compromise that was subsequently arrived at, but only in so far as that compromise related to the subject-matter or the claim in the suit. If the executing Court finds that there is a valid, operative decree regard being had to the subject-matter or claim in the suit, it must execute that decree and is not concerned to find whether the terms of the compromise are capable of being construed as giving rise to a new relationship of landlord and tenant between the parties. Even assuming that the terms of the compromise are capable of such a construction, no operative decree in that event could have been passed in accordance with such a compromise, as the creation of a new lease was a matter entirely extraneous to the suit. It is undisputed that the creation of a new lease such as is now contended for by the judgment-debtors was not a matter which related to the suit. In fact, it is urged by them the terms of the compromise for the first time gave rise to a new tenancy in their favour. If therefore there has been an operative decree passed as in the present case, it must necessarily and exclusively relate to the subject-matter or claim in the suit. When the Court is called upon to record a compromise and pass a decree in terms thereof, the Court can pass a decree in terms of the compromise only in so far as those terms relate to the suit and not in relation to those terms which are extraneous to the suit. The function of the executing Court would then be to execute such a decree and I do not think that it would be open to the judgment-debtors to contend in the execution proceedings that the terms of the compromise upon which the decree was based created a new lease in their favour. If the terms of the compromise evidenced only a transaction of lease in favour of the defendants, no decree could have been passed in accordance with such terms as such terms obviously did not relate to the suit. Besides it may be noted when the Court applied its mind and passed a decree in terms of the compromise, it must also mean that the Court impliedly negatived the plea that is now raised in the execution proceedings, namely, that the terms of the compromise created a new lease; for, otherwise if the Court had come to the conclusion or if the defendants had raised the contention that the terms of the compromise created a new lease, it would never have proceeded to pass a decree as it did in the present case. The Court would have stated in that event that the compromise terms had given rise to a case of new lease, and as the case of a new lease was not a matter relating to the suit, no operative decree embodying such terms could be passed under the provisions of Order 23, Rule 3 of the Civil Procedure Code. I should therefore think that it is not open to the judgment-debtors now to agitate the point which must be deemed to have been considered and overruled by the Court when it passed the decree in accordance with the compromise. Mr. Shah has however relied upon the decisions reported in Sumatibai Kirtikar v. Anant Balkrishna 51 Bom LR 788: AIR 1949 Bom 402; Gurupadappa Shivlingappa v. Akbar, : AIR1950Bom252 (B) and Narayan Ramchandra v. Gangadhar, : AIR1955Bom175 (C), in which some consent decrees were construed in execution proceedings to operate as lease in favour of the judgment-debtors. He has also drawn my attention to the case of Ramjibhai Virpal v. Gordhandas, reported in : AIR1954Bom370 (D), in which again some consent decrees were construed in execution proceedings and were held not to create leases. However, the point which I am now considering does not seem to have been raised in any of those cases, Even so, I must respectfully state that I am bound by those decisions. If however I had rested by judgment on the view which I have ventured to express on the point I have dealt with so far, I would have referred this appeal to a Division Bench, but as I agree with the view which has been taken by the lower appellate Court on the construction of the consent decree, I do not think it necessary to do so in the present case.

11. Now, coining to the terms of the consent decree, I do not feel any doubt whatever as to the import of those terms and the intention of the parties when those terms were settled between the defendants and the plaintiffs. I proceed on the basis that -- and Mr. Shah also fairly con-cedes that the case which was tried to be developed even in the executing Court was that --the terms of the decree gave rise to a relationship of landlord and tenant only between plaintiff No. 3 and the defendants. Mr. Shah says that the decree made it clear that the relationship, which was brought about between them by the terms of the decree, was accepted also by the plaintiffs 1 and 2. That may he so. But that does not seem to be relevant for the purpose of determining the nature of the relationship between plaintiff No. 3 and the defendants. In the first place there are no words in the whole of the com-promise purporting to effect an actual demise off the premises by plaintiff No. 3 in favour of the defendants. The first clause of the decree makes it clear that the possession of the property is to be handed over to plaintiff No. 3 in the first instance, and if plaintiff No. 3 is not prepared to take delivery of the property, then, to plaintiffs 1 and 2. I fail to see how if the terms of the compromise decree gave rise to a relationship of landlord and tenant between plaintiff No. 3 and defendants, plaintiffs 1 and 2 would under any circumstances be entitled to recover possession of the property, unless the decree was a decree in ejectment passed in favour of all the plaintiffs. It would not be possible to conceive how on the basis that the decree had created only a tenancy between the defendants and plaintiff No. 3, plain-tiffs 1 and 2 would be entitled to possession of the property. If, therefore, this decree is tried to be construed as giving rise to a fresh lease between plaintiff No. 3 and the defendants, we would be ignoring the material and the operative part of the decree which entitles all the plaintiffs to execute the decree for possession of the premises. All that was settled under the compromise was that some time was to be given to the defendants to enable them to vacate the premises, and this concession also was made dependent upon compliance with Clause 3 of the compromise.

12. Then, Mr. Shah has emphasised the fact that the decree mentions the amount for which the judgment-debtors have been made liable to plaintiff No. 3 as the amount of rent. It is true that the amount which the judgment-debtors have been called upon to pay to plaintiff No. 3 has been described as rent; but in my view the mere mention of an amount for which liability has been created under the decree as rent does not by itself without more create a tenancy between the persons who have been made liable to pay it, and the person to whom that amount has to be paid. In this case, there appears to be some justification for the use of the word 'rent' in the decree. It seems to me that the word 'rent' is used in the decree, because when the amount is paid into the hands of plaintiff No. 3 and plaintiff No. 3 in his turn makes that amount over to plaintiffs 1 and 2, it is only by way of rent that the latter receive it from plaintiff No. 3, who is admittedly their tenant. The amount for which the judgment-debtors have been made liable in the first instance was not an amount of rent at all. On my construction of the terms of the decree, it was only an amount for the use and occupation for the intervening period during which the defendants were to be in possession. As soon as that amount was paid over to plaintiff No. 3, to whom the defendants had rendered themselves liable to pay, that amount at the time when it was to be passed on to plaintiffs 1 and 2 must be regarded as having transformed itself into rent which indeed it would be when paid to plaintiffs 1 and 2. I therefore do not attach any importance to the mention of the word 'rent' particularly in view of the other recital in the decree.

13. The result is, the appeal fails and is dismissed with costs.

14. Appeal dismissed.


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