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JaIn Tapasvi Umarsi Samji Pasoo Chheda (Kutchwala) Vs. Harilal Dhanji Kania and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 2104 of 1981
Judge
Reported in1983(1)BomCR174
ActsPresidency Small Cause Courts Act, 1882 - Sections 41; Transfer of Property Act, 1882 - Sections 53A
AppellantJaIn Tapasvi Umarsi Samji Pasoo Chheda (Kutchwala)
RespondentHarilal Dhanji Kania and ors.
Appellant AdvocateR.S. Mohite, Amicus Curiae
Respondent AdvocateV.D. Govilkar, Adv. for respondant No. 1
Excerpt:
.....of suit filed under section 41 - licence stood revoked only when it is terminated - equitable title is not enough for owner of such licence either to enter into possession or to defend possession except under section 53 a - equitable owner could not seek protection - provision not available to defendant respondent - held, suit filed under section 41 decreed. - - but since he failed to comply with the demands the suit was filed under section 41 of the above-mentioned act for the defendant's eviction. the trial court was, however, satisfied that all these protestations were unacceptable and came to the conclusion that the agreement dated 26th march, 1973 put an end to the licence and licensor relationship between the parties. mohite who went through the entire record and..........court under section 41 of the presidency small causes court act for recovery of possession of the suit premises from the defendant who is respondent before me. his contention was that one of the cabins in the building was purchased from the builder by one hariram shroff. the exact date when he purchased the said cabin is not on record either in pleadings or in the evidence. but in his plaint the represent petitioner (who will be referred to hereinafter as the plaintiff) stated that he himself purchased the said cabin from said hariram shroff in the year 1968. after he purchased the same he gave possession of the same to the present respondent (who will be referred to hereinafter as the defendant) on leave and licence and an agreement of leave and licence in that behalf was executed by.....
Judgment:

Sharad Manohar, J.

1. There exists a building by name Anantdeep Chamber, at 273/277, Narsi Natha Street, Bhat Bazar, Bombay-9 (thick business locality). From the record it appears that the building was constructed by a builder. Probably it was intended to be used for business purpose only and hence on each floor of the building there were cabins and those cabins were sold by the builder to various persons. Although the premises are called cabins, it is common ground before me that they were in fact various rooms on the various floors.

The next factual statement can be given only with reference to the pleadings. The present petitioner before me was the plaintiff who had filed a suit in the small Causes Court under section 41 of the presidency Small Causes Court Act for recovery of possession of the suit premises from the defendant who is respondent before me. His contention was that one of the cabins in the building was purchased from the builder by one Hariram Shroff. The exact date when he purchased the said cabin is not on record either in pleadings or in the evidence. But in his plaint the represent petitioner (who will be referred to hereinafter as the plaintiff) stated that he himself purchased the said cabin from said Hariram Shroff in the year 1968. After he purchased the same he gave possession of the same to the present respondent (who will be referred to hereinafter as the defendant) on leave and licence and an agreement of leave and licence in that behalf was executed by the parties in the month of January 1973. Both the learned Advocates appearing before me stated that the agreement itself is not on record, but there is no dispute that it was executed by both the parties some time in the month of January 1973. There is no dispute that by the said agreement the defendant agreed to pay a sum of Rs. 400/- per month to the plaintiff as compensation for leave and licence. It was the contention of the plaintiff that the defendant paid compensation for some time and stopped paying compensation thereafter. He further contended that he revoked the defendant's licence and demanded compensation of the premises. But since he failed to comply with the demands the suit was filed under section 41 of the above-mentioned Act for the defendant's eviction.

2. The defendants contention by way of defence is really speaking decisive of this petition. As per practice prevailing in this Court under the presidency Small Causes Court Act, what is filed by the defendant is not a written statement but only the points of Defences. But it is not disputed before me that points of Defences are constituting defendant's pleadings and there are no separate pleadings as such. In the said points of Defences the defendant specifically or implicitly admitted certain significant averment made in the plaintiff's plaint. The points of Defence were set out by the defendant quite elaborately. In para 6 (a) it was contended that the original builder Lalchand Lutharia used to sell various premises to the purchaser with the ultimate goal of transferring the suit property meaning thereby the building Anantdeep to the Co-operative Society to be formed by the purchasers. Clause (b) of para 6 states that Hariram Shroff purchased Cabin No. 112 namely the suit premises from the said builder Lalchand Lutharia and that said Hariram Shroff in terms sold and delivered possessions of the suit cabin to the plaintiff in the year 1968.

3. It will be thus seen that the defendant has specifically admitted the plaintiff's title as a purchaser of the said cabin which means that the fact that the plaintiff had a legal title and not merely an equitable right in respect of the suit premises was specifically or at least by necessary implications admitted by him.

The point of defences proceeded to say that the owner of the land upon which the building was constructed filed a suit against the builder Lalchand Lutharia and all the original purchasers of the premises including said Hariram Shroff on the original side of this Court bearing suit No. 181/68 that in the said suit pending in this Court a Court Receiver was appointed and that the Court Receiver was given direction by this Court to collect monthly amounts from the various purchasers of the cabins at the rates of Re. 1/- per sq. foot. It was further averred that the suit cabin admeasures 213 sq. feet and hence the amount payable by the owner of the cabin was fixed at Rs. 213/- and the Court Receiver was directed to receive the said amount at that rate from the purchaser of the cabin. The exact date when the amount became payable is not stated in the point of Defences but it is stated therein that at the rate of Rs. 213/-per month the plaintiff had become liable to pay arrears of Rs. 12,000/- to the Receiver. It was further averred that the plaintiff was unable to pay those arrears and realising that if he could not raise the amount for the said payment the premises were likely to be sealed by the Receiver, he entered into an agreement with the defendant by virtue of which he sold the suit premises to the defendant for a total sum of Rs. 14,000/-. The defendant contended that out of the said amount of Rs. 14,000/- a sum of Rs. 2,000/- was paid by him to the plaintiff at the time of agreement itself and so far as the balance of Rs. 12,000/- was concerned that was to be paid by him to the Revision in discharge of the above mentioned dues. The defendant contended that this agreement came to be executed on 26th March, 1973. He also produced the said agreement along with the plaint and contended that in view of the said agreement the original relationship of licensor and licensee between the plaintiff and defendant stood snapped and the defendant continued to be in possession of the suit premises in his own right as the owner thereof. It was on this ground, contended defendant that the suit was liable to be dismissed.

4. In these proceedings issues are not framed the trail started and before the parties lead evidence. The points to be considered by the Court are framed only at the time of writing of the judgment. The fact however remains that the parties led evidence. The defendant led evidence to show that a total sum of Rs. 14,000/- was received by the plaintiff from him. He produced the agreement dated 26th March, 1973, which itself embodied an acknowledgement on the part of the plaintiff for having received an amount of Rs. 2,000/- from the defendant. So far as the balance of Rs. 12,000/- was concerned the defendant produced the receipts given by the Receiver appointed by this Court showing payment of approximately that much amount by the defendant to the Receiver. The receipts that the major portion of the amount paid by him in connection with the suit premises relating to arrears due before 26th March, 1973. But a small portion did represent the amount payable by the plaintiff or by the cabin-owner, who-so-ever he might be, after 26th March, 1973.

5. The plaintiff on the other hand denied the existence of any such agreement dated 26-3-1978. He raised various pleas relating to the non-existence or invalidity of the agreement. The trial Court was, however, satisfied that all these protestations were unacceptable and came to the conclusion that the agreement dated 26th March, 1973 put an end to the licence and licensor relationship between the parties. According to the trial Court, therefore, the plaintiff had no subsisting title to the suit premises on the strength of which a decree for eviction could be claimed by him against the defendant. The plaintiff's suit under section 41 of the Act, was, therefore, dismissed by the trail Court.

6. It appears that the plaintiff filed a proceeding styling the same as an appeal. It appears that the same was also entertained by a Bench of two Judges of the Small Causes Court as an appeal. The Bench, however, agreed with the view taken by the learned trial Judge and held that the agreement dated 26th March, 1973 was proved by the defendant and further that in view of the said agreement the license and licensor relationship between the parties had come to an end. The Court, therefore, claimed the trial court's findings that after such snapping of the relationship between the parties, no question arose about the plaintiff having title to claim possession from the defendant. The appeal filed by the plaintiff, therefore, was summarily rejected by the Bench.

7. It may be stated here that the original suit was filed by the plaintiff as an indigent person and throughout these proceedings the plaintiff has appeared as a party in person. Against the said judgement of the Bench the plaintiff filed the present writ petition and has appeared in this Court as a party in person. Presumably because this Court found that certain suspicious circumstances in the proceedings appeared against the defendant the rule was issued by this Court on 13-7-81. However, when the writ petition came up for hearing before me, I found the various statements made by the plaintiff were of the character bordering upon the scandalous. My attention was also invited to the fact that similar scandalous averments and statements were made by the plaintiff in various pleadings and applications in the lower Court. I also found that the petitioner-plaintiff was wholly unable to plead his case even in a remotely rational manner. In these circumstances, I requested Mr. R.S. Mohite to assist the Court on behalf of the petitioner. I may state that I received extremely able assistance from Mr. Mohite who went through the entire record and presented before this Court the plaintiff's case as best as any one could even in the absence of any serviceable instructions from the plaintiff as such. After hearing Mr. Mohite, I called upon Mr. Govilkar to answer the various difficulties in the matter of accepting the lower Court's judgement as correct. I may state here that Mr. Govilkar was wholly unable to satisfy me about the correctness of the judgement on the basis of the record as it stands. I will presently refer to the main circumstance against the defendant which have been lost sight of by both the courts below.

8. I have pointedly stated above that the question to be decided in this petition can be resolved mainly by referring to the pleadings. The plaintiff has come to this Court contending that he is the owner of the immoveable property, namely the cabin, and that he had given the same on leave and licence to the defendant . He contended that the licence was terminated by him and hence he was entitled to recover back possession from his licensee namely the defendant.

9. The written statement of the defendant practically admits the major portion of the plaintiff's contention. The fact that the plaintiff was the owner of the cabin which was an immoveable property is not disputed by the defendant. The fact that he had taken this immoveable property on leave and licence from the plaintiff is not denied. His contention is that the licence came to an end by virtue of the agreement of purchase dated 26-3-1973. The entire written statement proceeds from the basis that the original title of the plaintiff in the suit premises got thus transferred to the defendant by virtue of the agreement dated 26-3-1973. The crux of the contention is that the title did vest plaintiff originally but that he was divested of the same by virtue as his agreement with the defendant dated 26-3-1973. The question that arises is as to whether such contention is legally tenable.

The answer to the question clearly is that so far the law is concerned the defendant's contention is totally untenable. Even a casual look at the provision of section 54 of the Transfer of property Act is enough to satisfy the Court that no person who enters into a mere agreement such as the one dated 26-3-1973 with the owner of the immoveable property, can claim with any jurisdiction that by the mere agreement he has succeeded in divesting the party of the other part viz., the owner of his title in the said property. and in getting vested in himself the title in the said property. The licensee and licensor relationship between the parties was based upon the plaintiff's legal title in respect of the suit premises. There cannot be any doubt that the suit premise as such are immovable property. Hence by the agreement dated 26-3-1973 neither the plaintiff was divested of his title nor was the defendant armed with a title by virtue of the said agreement. The agreement dated 26-3-1973, therefore, could not result in the snapping up of the licensee and licensor relationship between the parties. Further it is well known that under section 116 of the Evidence Act no tenent or license can deny the title of a licensor at the commencement of the licence. It is true that he can contended and prove that the licensor's title came to an end by some subsequent event; but the said event must be pleaded and proved. In the instant case the only event that is pleaded and, perhaps, provide is the agreement dated 26-3-1973. The said event does not have the legal effect of divesting the plaintiff of the said title at all. The estoppel operating against the defendant under section 116 of the Evidence Act, therefore, continued and continues till this date.

If such estoppel continues, it cannot lie in the mouth of the defendant to contend that the licensee and licensor relationship between himself and plaintiff had been snapped off.

10. This is the only ground upon which the plaintiff has been non-suited by the lower Court. Once this ground is found to be unavailable for the defendant, there remains no defence which the defendant can avail of for the purpose of making good his defences. It, therefore, follows that the plaintiffs entitled to the order of eviction at least in these proceedings. Mr. Govilkar, however, tried to contend before me that the suit premises of which the defendant was a licensee were not immoveable property. He tried to raise a contention and plea that the plaintiff was only a member of the society and not an owner of the immoveable property namely the cabin. His further contention was that the agreement dated 26th March, 1973, itself contemplated the transfer of the plaintiff's shares in the society to the defendant. Relying upon the said provision of the agreement, Mr. Govilkar contended that what was owned by the plaintiff was a right to occupy the flat of which the Co-operative Society was the owner. His contention further was that the plaintiff's right as a member of the society to occupy the immoveable property viz., the cabin was not an immovable property within the meaning of the Transfer of Property Act and the Indian Registration Act.

11. I do not think that these contentions are any more open for Mr. Govilkar in these proceedings. I have referred to the defendant's written statement elaborately. The difficulty for Mr. Govilkar is that the contentions which are being raised by him before me in his writ petition have no basis in the written statement at all. I do not know as to whether the society in question is an owner-members society or a tenant-members society. As is well known, various flat owners may purchase flats from the builders and those flats owners can themselves from a society after getting the title in the flats legally transferred to them. On the other hand there are ample instances when builders enter into agreement with various person, deliver possession to them upon receipt of the consideration and such occupants form a co-operative society to which the builders convey the legal title ultimately. I am not posted with the facts as to the nature of the society of the building in question. Moreover, I do not know as to whether the plaintiff could not say that he has got only the right of occupation but also the legal title to the cabin in question. The fact that the cabin as such is an immoveable property cannot be and has not been disputed at all. The plaintiff has come to the Court stating that he is the owner of the cabin and the defendant has come out with the case that the plaintiff was an owner at some stage but that his owner ship has been transferred to the defendant himself. In these circumstances the arguments relating to the nature of rights of a member of a building society have no basis in the pleadings at all.

12. In this connection I make it clear that though this question is one relating to title, still these proceedings are only in the nature of summary proceedings. As a matter of fact it is possible to contend that section 49 of the Small Causes Court Act enables the parties aggrieved by this order to establish their contentions relating to title by an independent suit. If such suit is open for the defendant it may be certainly open form him to raise all these contentions in the said suit. I make it clear that I wish to express my opinion on the said point. The only question with which I am concerned in this petition is the one relating to the rights of the parties arising out of their own pleadings. I have no doubt that in the light of the defendant's own written statement, his license never came to an end by virtue of the agreement dated 26th March, 1973. The licence stood revoked only when the plaintiff terminated the same. The plaintiff's title in the suit property however, continued.

13. I was also considering as to whether the defendant would be entitled to the protection of section 53-A of the Transfer of Property Act. It could be perhaps contended, though it was not actually contended, that there existed an agreement of sale of the said immovable property, namely the cabin, by the plaintiff to the defendant, which agreement was in writing. Relying upon the said agreement the defendant would, in appropriate circumstances, be entitled to defend his possession of the suit premises. The difficulty however, is that apart from the fact that such defence is not pleaded at all, the same is not available to the defendant because there is nothing to show that subsequent possession of the defendant was referable to the said agreement dated 26-3-1973. It may be that whereas the legal title of the plaintiff continued, he had no equitable title in the suit premises and the equitable title vested in the defendant by virtue of the said agreement dated 26-3-1973. However, such an equitable title is not enough for the owner of such title either to enter into the possession or to defend the possession except under the provisions of section 53-A of the Transfer of Property Act. If, for the reasons stated above, section 53-A cannot be invoked, the equity vesting in the equitable owner is helpless. Principles of equity in this behalf are embodied in the Transfer of Property Act in general and section 53 of the Transfer of Property Act in particular. Equitable owner cannot seek for protection from the Court independent of the said provisions. The said provision being unavailable for the defendant, he has no defence to the suit for eviction at all so far as these proceedings are concerned.

14. The present petition has, therefore, got to be allowed. The order passed by the trial Court and confirmed by the Bench of the learned Judge of the Small Causes Court in appeal is, therefore, set aside and the plaintiff's suit is hereby decreed.

The rule earlier issued is made absolute. There shall be no order as to costs.

15. Mr. R.S. Mohite, appeared for the petitioner as Amicus Curiae and he gave extremely valuable assistance to the Court by going through the entire record. The Court feels indebted to him on that account.

16. Mr. Govilkar strongly relied upon the fact that a sum of Rs. 14,000/- had been paid by the defendant to the plaintiff directly or indirectly. He contended that if the decree was to be executed the plaintiff would be liable to refund the said amount to him. To my mind, this is really a counter claim by the defendant. Hence it is unnecessary for me to pass any order in this behalf. However, the defendant will be entitled to make an application to the Executing Court that as against his liability to pay the mesne profits to the plaintiff from 26-3-1973 onwards, the said amount of Rs. 14,000/- should be set off. If such an application is made, the Executing Court will deal with the same properly in accordance with the provisions of law.


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