Bombay High Court
Mahendra Valji Rathod vs National Radio And Electronics Company on 17 December, 2018
Author: M.S. Sonak
Bench: M.S. Sonak
25-cra-180-2010.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 180 OF 2010
Mahendra Valji Rathod .. Applicant
Vs.
The National Radio and Electronics Company Ltd .. Respondent
Shri. S.M. Vyas for the applicant.
CORAM : M.S. SONAK, J.
DATE : 17 DECEMBER 2018 P.C.:-
. Heard Mr. S.M.Vyas for the applicant. The respondent though served and represented has today, neither appeared through any authorized representative nor their advocates. Since this Civil Revision Application relates to the year 2010 and is already ordered to be expedited in the year 2010 on the ground that the applicant is a senior citizen aged 93 years, it is not possible to adjourn the matter any further.
2. The challenge in this Civil Revision Application is to the judgment and decree dated 07.10.2009 made by the Appellate Bench of Small Causes Court allowing Appeal No. 129 of 2008 and setting aside judgment and decree dated 30.01.2008 made by the Small Shubham Page 1 of 11 ::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 09:03:14 ::: 25-cra-180-2010.doc Causes Court in T.E. & R Suit No. 27/30 of 2002 instituted by the applicant seeking the eviction of the respondent from flat Nos. 4 and 6 of Girishant Building.
3. The applicant instituted T.E.& R.Suit No. 27/30 of 2002 before the Small Causes Court seeking eviction of the respondent from the suit premises by urging that the term of the lease executed on 19.01.1965 had come to an end after 20 years i.e. in 1985 and since, the share capital of the respondent was admittedly in excess of Rs.1 Crore, the respondent, did not enjoy the protection under the Maharashtra Rent Control Act, 1999.
4. The small causes court (the Trial Court) decreed the suit by judgment and decree dated 30.01.2008. The Appeal Court by its judgment and decree dated 07.10.2009 has however reversed the trial Court. Hence, the present Civil Revision Application.
5. Mr. S.M. Vyas learned Counsel for the applicant submits that on facts, the two courts have held in favour of the Applicants. He however submits that the Appeal Court misdirected itself both in facts as well as in law, in holding that the applicant had failed to make out a clear title in respect of the suit premises. He submits that on the basis of documentary evidence on record, clear title was made out. In any Shubham Page 2 of 11 ::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 09:03:14 ::: 25-cra-180-2010.doc case, he submits that now the title holders from whom the Applicant purchased the suit premises has also filed affidavits in support of the Applicant. Mr. Vyas submits that in the matter of this nature, the issue of title was not as relevant as in a normal civil suit. He submits that on the basis of the material on record, it was very clear that the applicant was the landlord in respect of the suit premises and therefore, the Appeal Court clearly exceeded jurisdiction in denying the applicant the decree of eviction, which had already been granted by the trial Court. For all these reasons Mr. Vyas submits that the impugned judgment and decree made by the Appeal Court warrants interference.
6. There is absolutely no dispute that the suit premises were owned by Mr. Dayabhai Desai and his two wives Janabai and Nirmalaben. This is evident from the deed of lease dated 19.01.1965 itself. The term of the lease was 20 years i.e. up to 19.01.1985. Clause 4 of the deed of lease, according to the respondent, gave the respondent an option to renew the lease for further period of 20 years upon same terms and conditions. Both the trial Court as well as the Appeal Court have concurrently negatived the respondents defence that the lease was renewed for further period of 20 years i.e. from 1985 to 2005. In any case, as of now, that is, in the year 2018, such a defence has no meaning because even the renewed period has long expired.
Shubham Page 3 of 11 ::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 09:03:14 :::
25-cra-180-2010.doc
7. There is also no dispute that consequent upon the demise of Dayabhai, his estate, was partitioned between his two wives and their respective daughters. In terms of partition deed the suit flats came to be allotted to Nirmalaben and her two daughters Jyotiben and Nutanben. This position is also not disputed by the respondents. The dispute really starts on the issue of conveyance of rights, title and interest by Nirmalaben, Jyotiben and Nutanben in favour of the present applicant Mahendra Valji Rathod.
8. The record bears out that by deed of conveyance dated 26.09.1998, the suit premises were sold and conveyed by Nirmalaben, Jyotiben and Nutanben in favour of the applicant Mahendra Valji Rathod. However, this deed of conveyance though required to be registered, was in fact not registered. Therefore, it is the case of the applicant that by deed of confirmation dated 03.08.1999, which was duly registered, the parties admitted to the conveyance effected by conveyance deed dated 26.09.1998. Necessary stamp duties were also paid and the confirmation deed dated 03.08.1999 has been duly admitted in evidence in the present proceedings.
9. Based upon the confirmation deed dated 03.08.1999, the trial Court held that the applicant has derived legal and valid title to the suit premises and therefore, the suit instituted by him was very much Shubham Page 4 of 11 ::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 09:03:14 ::: 25-cra-180-2010.doc maintainable. The Appeal Court, has however held that the deed of confirmation was signed and executed only by Jyotiben, who purported to act on her own behalf as well as on behalf of Nirmalaben and Nutanben on the basis of a power of attorney dated 15.11.1993. The Appeal Court has reasoned that such power of attorney was never annexed to the deed of confirmation and in any case, such power of attorney was not validly proved in the course of the evidence lead by the parties before the trial Court. On this short ground the Appeal Court has reversed the decree of eviction made by the trial Court in favour of the applicant and against the respondent. The Appeal Court, on this very basis has thereafter concluded that the notice of termination of lease issued by the applicant was not competent, since, the applicant had not established a proper title to the suit premises.
10. The core of reasoning of the Appeal Court is reflected in paragraph 34 of the impugned judgment and decree which reads thus :
"34. At the trial of the suit the plaintiff was called upon to produce power of attorney allegedly executed by Nirmalaben and Nutan in favour of Jyotiben. However, plaintiff has merely produced an ordinary photostate copy of power of attorney dated 15.11.1983 purportedly executed by Nirmalaben in favour of Jyotiben and Milind (son of Jyotiben). It is marked as Exh. H but its contents are not proved. Thus Plaintiff contended Shubham Page 5 of 11 ::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 09:03:14 ::: 25-cra-180-2010.doc with mere production of xerox copy of power of attorney. Admittedly power of attorney allegedly executed by Nutan in favour of Jyotiben is not produced by the plaintiff. It is significant to note that since the date of filing of written statement of defendants the plaintiff was aware of the fact that defendants have challenged his derivative title. Form his own document of Conveyance Deed dated 26.09.1998 it is amply clear to the knowledge of the plaintiff that by Partition Deed dated 25.01.1982 in all 3 flats including suit flats, garage etc. came to the share of Nirmalaben and her two daughters. In the Confirmation Deed dated 03.08.1999 the address of Nutan Thakkar shown to be New Jersey, U.S.A. Considering these facts and circumstances it was incumbent upon the plaintiff to satisfy that Nutan really executed a power of attorney in favour of Jyotiben for transfer of her share in the suit property. Even there is no cogent evidence that Nirmalaben executed a power of attorney in favour of Jyotiben. There is no reference either in the Conveyance Deed or Confirmation Deed about execution of power of attorney, jointly and separately, by Nirmalaben and Nutan in favour of Jyotiben. We are therefore, of the opinion that plaintiff has failed to establish that shares of Nirmalaben and Nutan in the suit flats have been sold to him and consequently failed to prove that he is an absolute owner of entire suit flats. This is not a suit under Rent Act. Defendants never paid rent in respect of suit flats to the plaintiff. Hence there must be Shubham Page 6 of 11 ::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 09:03:14 ::: 25-cra-180-2010.doc cogent evidence proving ownership in the suit flats. The Ld. Trial Judge held that plaintiff has become owner of suit property. This finding based on the reasoning that the transfer of suit premises in favour of the plaintiff is not set aside by any Court of law, that there is a registered instrument in favour of plaintiff and his name has been mutated in the revenue record. We however, are not convinced with this reasoning as the derivative title of the plaintiff was challenged by the defendants since beginning as well as they have strongly challenged transfer deeds. But plaintiff failed to prove that transfer deeds were executed by all owners. He could not divest Nirmalaben and Nutan from their share in the property. It is well settled that revenue record is not a conclusive proof of title. Hence we have recorded negative finding on point no.1."
11. In the present case, as stated earlier, there was absolutely no dispute that Dayabhai and his two wives Janabai and Nirmalaben were the landlords in respect of the suit premises. There is also no dispute that consequent upon the demise of Dayabhai, his estate was partitioned and the suit premises came to be allotted to Nirmalaben and her two daughters Jyotiben and Nutanben. There is a deed of conveyance dated 26.09.1998, which stands substantially confirmed vide deed of confirmation dated 03.08.1999. Though, the deed of conveyance dated 26.09.1998 was not a registered document, the deed Shubham Page 7 of 11 ::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 09:03:14 ::: 25-cra-180-2010.doc of confirmation dated 03.08.1999, which confirms the execution of the deed of conveyance dated 26.09.1998 is a registered document. The trial Court, relying upon such documentary evidence, in my judgment, had quite correctly held that the applicant was indeed the landlord in respect of the suit premises, having derived title and interest to the suit premises in accordance with law.
12. In proceedings of this nature, it is possible that the landlord may not be the absolute title holder but nevertheless, he may still answer the definition of landlord for the purposes of rent legislations. The material produced on record was more than sufficient to hold that the applicant in the present case, answered the definition of landlord and therefore, was very much competent to maintain the suit for eviction against the respondent. The trial Court, has correctly appreciated the material on record and further, drawn the correct legal inference in order to decree the suit in favour of the applicant and against respondent.
13. The Appeal Court, in the present case, has clearly misdirected itself both on facts as well as law. So far as the facts are concerned, there was no reason to hold that the deed of confirmation dated 03.08.1999 was not validly executed because the power of Shubham Page 8 of 11 ::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 09:03:14 ::: 25-cra-180-2010.doc attorney dated 15.11.1983 was not enclosed along with the same. The deed of confirmation clearly states that Jyotiben acted in her capacity as the power of attorney holder of Nirmalaben and Nutanben. This position must have been verified and ascertained by the Sub Registrar who ordered the registration of this deed of confirmation. Thereafter, in the course of evidence, a copy of the power of attorney was also produced on record. At no stage, was the authority of Jyotiben ever challenged by Nirmalaben and Nutanben. If at all there was any issue as to whether Jyotiben had the authority to represents Niamalaben and Nutanben, then, the proper relators for raising such issue should have been Nirmalaben and Nutanben. As noted earlier, at no stage, did they raise such an issue. They stood by the deed of conveyance executed by them in favour of the applicant as well as the deed of confirmation dated 03.08.1999, which confirmed the said deed of conveyance. The Appeal Court reasoning is therefore unsustainable on facts. Further since the Appeal Court, failed to distinguish between the concept of a person being a landlord and a person being a full owner, the finding of the Appeal Court is vulnerable in law as well.
14. Though, no cognizance can ordinarily be taken of affidavits filed in the Civil Revision Application for the first time, it is necessary to note that in the present case Jyotiben and Nutanben have since filed Shubham Page 9 of 11 ::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 09:03:14 ::: 25-cra-180-2010.doc affidavits in this Civil Revision Application confirming unequivocally the position of transfer and conveyance of the said premises in favour of the applicant herein. Learned Counsel states that Nirmalaben has since expired. Even excluding, these affidavits, the material on record is sufficient to establish transfer and conveyance in favour of the applicant. The affidavits only lend greater assurance to this position, which stands even otherwise independently established.
15. The Appeal Court has held that there was no valid termination notice issued to the respondent. This is only on the basis that the applicant allegedly had failed to establish proper title to the suit premises and not for any other reason. Now that it is clear that the applicant had in fact established that he was the landlord in respect of the suit premises and had derived interest from the erstwhile landlords, it is obvious that the notice of termination issued by the applicant was both legal and valid.
16. Therefore, upon cumulative consideration of the aforesaid facts, circumstances and the legal position, it is clear that the Appeal Court has exceeded the jurisdiction vested in it in making the impugned judgment and decree dated 07.10.2009. Accordingly, the impugned judgment and decree dated 07.10.2009 is liable to be set aside and is hereby set aside. The judgment and decree dated 30.01.2008 made by Shubham Page 10 of 11 ::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 09:03:14 ::: 25-cra-180-2010.doc the learned trial Court is consequently restored.
17. This Civil Revision Application is therefore made absolute in terms of prayer clause (a). The prayer clause (b) is quite redundant, since, the decree made by the trial Court on 30.01.2008 is now restored.
18. In the facts and of the present case there shall be no order as to costs.
(M.S. SONAK, J.) Shubham Page 11 of 11 ::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 09:03:14 :::