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Shantinath J. Upadhya and anr. Vs. Ajit N. Upadhya - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 3266 of 1976
Judge
Reported in1982(2)BomCR464
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 12(3) and 13(1); Transfer of Property Act, 1882 - Sections 50 and 109
AppellantShantinath J. Upadhya and anr.
RespondentAjit N. Upadhya
Appellant AdvocateS.N. Mhamane, Adv.
Respondent AdvocateAjit Shah, Adv.
DispositionPetition dismissed
Excerpt:
.....what is material is state of premises when they were let and not the state in which they were when suit for possession was filed - to claim protection of section 12 (3) (b) tenant must deposit rent on first day of hearing and thereafter go on depositing standard rent and permitted increases in court. - [couto; m.l. pendse, jj.] in the first instance the order passed under s. 132(5) is an order of a summary nature and does not conclude the rights of the petitioners, because while passing the assessment order, it is always open to the petitioners to point out that the assets recovered in the search were not undisclosed to point out that the assetsrecovered in the search were not undisclosed income. secondly, the order passed under s. 132(5) is appealable under the provisions of the act..........13 in the state of premises when they were let and not the state in which they were when the suit for possession was filed. in that view of the matter, the premises were obviously land. therefore, none of the contentions available under section 13(1)(i)(h) or (hhh) were available. if the contention of the plaintiff was reasonable for erecting a land stood uncontroverted, then it follows that the defendant admitted this position. if it did, it must equally be held that the court is readily satisfied with the bona fide and reasonable requirement of the premises.13. coming to the other ground raised under section 12, it is also not possible to hold that shri mhamane is on firm grounds even when his case falls under section 12(3)(b). under that section, the tenant must deposit the rent.....
Judgment:

R.D. Tulpule, J.

1. Regular Civil Suit No. 87/70 was filed by minor Ajit through his guardian and next friend, father Sobhiraj against his two brothers Shantinath and Duryodhan.

2. House No. 227 situate at Jaysingpur, originally belonged to four brothers, Shantinath, Duryodhan (defendant Nos. 1 and 2), Ajit and one Gajanand. They effected a partition of this property in the year 1951 by which, each of them was given a block or portion along with the open space behind it. House No. 227 consisted of a building in the front portion and open space in the rear. Different sub-numbers were given to the portions to be shared between the brothers and the portion which went to the share of Duryodhan was allotted Block No. 227/4.

3. Part of this rear portion of the block was leased by defendant Duryodhan to his brother Shantinath. That was given to him for the purposes of construction of a shed and running a flour mill. He was also permitted it appears to construct a privy block therein. In a suit filed by defendant No. 2. Duryodhan against Shantinath, the rent of this property was fixed at Rs. 50/- per year.

4. On 21-10-67, defendant No. 2. Duryodhan sold this open portion of his house Block No. 227/4 to Ajit the son of Nabhiraj. On 8-6-70, a notice was issued from Ajit to Shantinath calling upon him to pay the rent which was in arrears from 22-11-67, in the date of purchase, and on the ground that the landlord required these premises bona fide for construction of a new house. It was contended that what was leased being land, the landlord wanted to construct a new building thereon and, therefore, wanted possession of the premises. It was also contended that defendant Shantinath was in arrears of rent right from the date of purchase.

5. By his reply, Shantinath denied that Ajit was a purchaser. He also claimed that the rent was Rs. 50/- per year only and that, he had spent a considerable amount of about Rs. 8000/- on construction of a shed and the privy block. It was his further contention that under an agreement between himself and defendant No. 1 the original landlord, Duryodhan would have possession of the premises to be handed over or recovered by the lessor, the lessee was to be reimbursed for the expenses incurred by him. He, therefore, contended that unless that amount is paid to him, he is not liable to be evicted. He also contended that all the rent upto date had been paid to the lessor Duryodhan. He also raised contentions in regard to the legality and validity of the sale deed.

6. Ajit through his father guardian and next friend then filed a suit being Civil Suit No. 87/70 for possession against Shantinath and Duryodhan. Though Duryodhan was not a necessary party in the suit filed under the provisions of the Bombay Rent Act on account of the contentions raised by Shantinath an account of the transaction of the sale he was so joined.

7. In his written statement, Duryodhan the vendor contended that the sale deed was brought about by misrepresentation and fraud and was void. According to him, no consideration was paid to him. Therefore, his contention was that, title had not passed. He executed this document on account of misrepresentation made by Nabhiraj. That rent had been recovered by him for all the years till the date of the suit it also admitted in the agreement set up by Shantinath between and the lessor.

8. The trial Court dismissed the suit. It held that the plaintiff had not proved his title and the transaction did not relate to the land in question. He also found that the payment was made by defendant No. 1 to defendant No. 2. With regard to the plaintiff's contention that he required the premises bona fide for erecting a new construction, he did not record a finding and held in the alternative against the plaintiff.

9. Aggrieved by that decision, the plaintiff Ajit preferred an appeal in the Court of the District Judge, Kolhapur. The learned Assistant Judge who heard that appeal held that the plaintiff had proved his bona fides and that he required the suit site for construction of a building. He held that the sale deed related to the property in suit and the plaintiff had proved his title to the property. He did not accept the contention that the rent which was in arrears was paid by the tenant to landlord Duryodhan. He held that tenant Shantinath was aware of the transaction of sale and the alleged payments were neither made and could not be protected even if made. He seems to have, however, found in favour of the defendants in regard to the agreement for reimbursement on account of the cost of construction and value of materials. In the view of the matter, though he held that plaintiff was entitled to possession, he remanded the suit to the trial Court for determining, after giving opportunities to the parties and framing an issue and the liability to pay the amount 'in respect of the alleged construction'. He also directed that in accordance with the findings, the Court can pass decree for possession either with or without the contention in accordance with his finding.

10. It is this judgment and decree which is sought to be challenged by Shantinath in the present petition.

11. Shri Mhamane who appeared for the petitioner, raised a contention before me that since defendant No. 2. Duryodhan had admitted that the payment of rent upto the date of the suit was made to him, no decree for possession on the grounds of default could be passed. It was his contention that the Appellate Court was in error in holding that the payment of Rs. 150/- could not have been made by Shantinath. It was pointed out that no notice had been issued after the sale Nabhiraj the father of Shantinath. If payments were, therefore, made by Shantinath to Duryodhan, which Duryodhan admits to have received, then those payment were entitled to be protected. Further, it was his submission that the Court, was in error in holding that the plaintiff required bona fide the suit land for purposes of construction. The view taken by the learned Assistant Judge that this contention was not denied, it was contended was not enough to award a decree to the plaintiff for possession. Shri Mhamane contented that the petitioner tenant Shantinath in this case, was entitled to protection under section 12(3)(b) of the Bombay Rent Act. None of these contentions are entitled to succeed.

12. Now, it will be seen that the present suit of the plaintiff for possession is filed on two grounds. The first ground is that of default in payment of rent and the second is that, plaintiff-landlord required the premises which are land, reasonably and bona fide for the purposes of erecting a new building thereon. Referring first to the provisions of section 13(1)(i) under which the second contention for possession is raised, it will be seen that no conditions are attached to this sub-clause of sub-section (1) of section 13. All that is necessary is, that the plaintiff must prove his bona fide and reasonable requirement for the purposes of erection of a new building on the premises. The premises must of course be land. Now it is not disputed that when the premises were let, they were land though subsequently, a shed was constructed thereon as well as a privy block. What has to be seen under Clause (i) of sub-section (1) of section 13 in the State of premises when they were let and not the State in which they were when the suit for possession was filed. In that view of the matter, the premises were obviously land. Therefore, none of the contentions available under section 13(1)(i)(h) or (hhh) were available. If the contention of the plaintiff was reasonable for erecting a land stood uncontroverted, then it follows that the defendant admitted this position. If it did, it must equally be held that the Court is readily satisfied with the bona fide and reasonable requirement of the premises.

13. Coming to the other ground raised under section 12, it is also not possible to hold that Shri Mhamane is on firm grounds even when his case falls under section 12(3)(b). Under that section, the tenant must deposit the rent on the first day of hearing and go on depositing thereafter in Court, the standard rent and permitted increases. In the present case, the tenant did not do so. It was found that he has not paid in fact the rent and could not have paid to his previous lessor the landlord. Clause (b), therefore, of sub-section (3) of section 12 does not afford any protection to such a tenant. Shri Mhamane in this behalf relied upon the provisions of section 109 paragraph (2) of Transfer of Property Act. That provision lays down that a transferee is not entitled to the arrears of rent due before the transfer and that, if the lessee 'not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay rent over again to the transferee'. It was, therefore, urged that in the absence of any notice by the transferor in this case to lessee Shantinath of the sale, he had no reason to believe that there was any such transfer. If he, therefore continued to make payment to the lessor then that rent cannot be recovered again from him and he could not, in the eyes of the law, be deemed to be a defaulter.

14. How the Appellate Court found that the petitioner Shantinath had no reason to believe that there was no transfer. In fact, it holds that he must be aware of the transfer having taken place. In this connection a reference may be made to section 50 of the Transfer of Property Act. That sections lays down that a person shall not be chargeable to the rent and charges 'on any immovable property which he has in good faith paid or delivered to any person of whom he held such property', even if it turned out that the person to whom such payment was made had to right to receive such payment. In other words, any payment made of rent in respect of any immovable property to a person who in good faith he thought was entitled to the property, then such person would not be required to pay over again, even if it ultimate turns out that, that person was not entitled to it. Section 50 and section 109 paragraph 2 have to be read together. The words, therefore, 'not having reason to believe' and the words 'goods faith' appearing in section 50 mean one and the same things. In other words, the payment must be made honestly and without there being any reason to think that the property has not passed hands.

15. In the present case, it is not possible to come to this conclusion. As stated above, House No. 227 was divided into 4 portions, each brother getting a portion thereof. All the brothers are residing in the same house. If, therefore, there was any transfer as between the brother, then it is unlikely that the other brother would not know of such a transfer. The relations between the brothers seemed to be not very cordial and, therefore, it was more likely that the transaction effected by the brother with the plaintiff would be known. In the circumstances, the plaintiff cannot take advantage either of section 12(3)(b) or section 109 read with section 50 of the Transfer of Property Act. The decree for possession in the circumstances, had to fall on either of the grounds and on both the grounds. In the circumstances, the order of remand passed by the learned Judge in view of the absence of any issue framed thereon and any finding recorded and the parties not having led evidence in the behalf is correct and will have to be confirmed.

16. Petition fails and is dismissed. Rule discharged. No order as to costs.


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