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2014 DIGILAW 1463 (BOM)

Fatimabee v. Kamrunisa

2014-07-08

A.P.BHANGALE

body2014
Judgment 1. Heard the learned Counsel for the respective parties. 2. The petitioners have questioned validity and legality of the Judgment and Order, dt. 28.2.2005 passed by learned Judge, Small causes Court, Nagpur in Regular Civil Suit No.411 of 2002, which resulted in decree for possession. Learned trial Judge found that defendants nos. 1 to 4 illegally sublet the suit premises. Defendants were directed to deliver possession and inquiry into mesne profits under Order XX, Rule 12 of the Code of Civil Procedure was ordered from the date of suit till delivery of possession. Regular Civil Appeal No.111 of 2007 preferred by the defendants was dismissed on 7.1.2008 by learned Adhoc District Judge7, Nagpur. The Appellate Court found that tenancy of defendants was liable to be forfeited. 3. The dispute related to southern block of two rooms 40 feet X 9 feet with court yard in the Corporation House No. 1049 (old House No.443/2) in Ward No.110 (old ward No.52), Circle No.17/23, Mominpura, Nagpur. It was owned by late Sugrabi W/o Hakim Mohammad Mukhtar. It was let out to late Abdul Raheman (predecessor of the petitioners) by her. It is found from the facts noticed by the Courts below that Sugrabi had sold the suit property to the plaintiffs in the case; the plaintiffs sued the defendants as landlord/owner of the suit property acquired under registered Sale deed, dt.18.2.1991 (Exh.39) and the defendants had refused to attorn their tenancy and denied relationship of landlord and tenant and unsuccessfully tried to dispute title of their landlord while occupying the suit premises and then unauthorisedly subletting the suit premises, that too without paying rent to the plaintiff/landlord. The rent remained in arrears despite demand notice (Exh.31) served upon the defendants by landlord demanding arrears of rent. Defendants did not give any reply to the notice from the plaintiff–landlord. Regular Civil Suit No.1351 of 1992 was instituted by the defendants to claim specific performance of the agreement alleged, but the suit failed and was dismissed. The dismissal of the suit filed by defendants attained finality. They were found having inducted defendant no.5 as a subtenant. Defendants did not give any reply to the notice from the plaintiff–landlord. Regular Civil Suit No.1351 of 1992 was instituted by the defendants to claim specific performance of the agreement alleged, but the suit failed and was dismissed. The dismissal of the suit filed by defendants attained finality. They were found having inducted defendant no.5 as a subtenant. On behalf of the petitioners, it is submitted that conduct of the defendants amounted to forfeiture of tenancy as they denied the title of the landlord and incurred risk of forfeiture/termination of tenancy in view of Section 111(g) of the Transfer of Property Act and by creating subtenancy in favour of the fifth defendant forfeiting their status as tenants, withholding possession of the suit premises wrongfully and unlawfully without paying rent. 4. Mr. A.N. Ansari, learned Counsel for the petitioners, with reference to the ruling in Nirmal Kanta (Dead) through L.Rs. vs. Ashok Kumar and another reported in (2008) 7 SCC 722 submitted that the landlord needs to prove that the tenant created subtenancy of the whole tenement by parting with the whole tenement. He stressed upon the point that the tenant must be shown to have parted with the possession for consideration with reference to the ruling in Vasant Mahadev Pandit and another vs. Zaibunnisa Abdul Sattar Dhuru and another, 2001(2) Al l M.R. 289. According to learned Counsel, the onus was upon the landlord to establish the subtenancy then it would shift upon the tenant to rebut the evidence. 5. Mr. A. Shelat, learned Counsel referred to Para 31 of the ruling in Mundri Lal vs. Sushila Rani (Smt) & another reported in (2007) 8 SCC 609 to argue that when the parties knew the stand taken by each other, knowing fully well the issues involved in the trial, inadequate pleading, if any, cannot be considered sufficient at this stage to set aside the impugned Judgment. He submitted that concurrent findings of the facts based upon appraisal of the evidence by the Courts below cannot be disturbed without any substantial question of law involved. This Court in the ruling in Silver Jubilee Dryers and Cleaners and Others vs. Hiralal Nemichand Shah and another reported in 2006 (6) Mh.LJ. 840 , after making reference to the legal position contained in the rulings in Sheela vs. Firm Prahlad Rai Prem Prakash, (2002) 3 SCC 375 and J.J. Lal Pvt. Ltd. Vs. This Court in the ruling in Silver Jubilee Dryers and Cleaners and Others vs. Hiralal Nemichand Shah and another reported in 2006 (6) Mh.LJ. 840 , after making reference to the legal position contained in the rulings in Sheela vs. Firm Prahlad Rai Prem Prakash, (2002) 3 SCC 375 and J.J. Lal Pvt. Ltd. Vs. M. R. Murali, (2002) 3 SCC 98 held thus :- “31. The ratio of the aforesaid 2 judgments referred to hereinabove unequivocally go to show that if the tenant is apprised of the transfer of title of landlord and if he had acknowledged title of transferee, expressly or impliedly by paying rent to him; then also rule of estoppel comes into operation. The tenant is not permitted to approbate and reprobate and challenge relationship of landlord and tenant. That the denial of title in the written statement can also be foundation of decree for eviction. Following the principles of law holding the field, applying the same to the facts and circumstances of the case at hand, it would be clear that the petitioners-tenants have denied title of the plaintiffs-petitioners landlords, who had taken over landlordship of the premises. It would, thus, be clear that denial of title was not bona fide. It was just to protract the litigation.” 6. I have considered the rulings cited in the light of submissions and the averments made in the petition along with the annexures therein and the affidavits solemnly affirmed by the parties. I do not find any justification to interfere with the findings recorded by the Courts below. Both the Courts below rightly took the view that, in view of denial of title, the tenants had forfeited the right of tenancy and the plaintiffs were entitled for possession of the suit premises. No fault can be found with the findings recorded. The findings of facts recorded by the Courts were very well be supported by the evidence on record. The view taken by the Courts below is a reasonable and possible view. This Court, not being a Court of appeal is not expected to reappreciate the evidence. The findings were recorded by the Appellate Court by full discussion of the evidence on record and the plaintiffs were found absolute owners with valid title under the registered Sale deed (Exh. 39). The defendants could not establish any legal right for to continue in possession of the suit premises. The findings were recorded by the Appellate Court by full discussion of the evidence on record and the plaintiffs were found absolute owners with valid title under the registered Sale deed (Exh. 39). The defendants could not establish any legal right for to continue in possession of the suit premises. The decree of eviction is based upon concurrent findings and need no interference in extraordinary writ jurisdiction. The view taken in the Judgment impugned do not call for any interference by this Court in exercise of extraordinary writ jurisdiction. 7. The Writ Petition is found without merit. Hence, it is dismissed with costs.