Bombay High Court
Gulam Mohmad Khan S/O Hakim vs Gulam Nabi Channu Miya on 14 August, 2009
Author: C. L. Pangarkar
Bench: C. L. Pangarkar
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR
BENCH NAGPUR.
SECOND APPEAL NO. 100 OF 1999
1. Gulam Mohmad Khan s/o Hakim
Miya Khan thr. L.Rs.
1-A. Rashida Khanam Mohd Sharif,
aged 50 yrs. Occu. Nil. R/o
Babulban, Wardhaman Nagar,Nagpur.
1-B. Sayeeda Khanam wd/o Ihsanur
Reheman aged 45 yrs. Occu. Nil,
R/o Dahi Bazar Ganjakhet Nagpur.
1-C. Mohd. Amjad Khan Gulam Mohd.
Khan, aged 37 yrs. Occu. Business,
R/o Dahi Bazar Ganjakhet Nagpur.
2. Gulam Ahmad Khan Hakim Miya Khan,
aged 72 yrs. Occu. Business, R/o
Mominpura Nagpur.
3. Abdul Hakim Khan Hakim Miya Khan
aged 68 yrs. Occu. Service. R/o
Budhukhan Munara Road, Nagpur.
4. Sk. Ramzan Sk. Mannu Miyan Saheb,
aged 42 yrs., R/o Sartaj Colony,
Tajabad, Nagpur.
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5. Sk. Ibrahim Sk. Mannu Miyan Saheb,
aged 34 yrs., R/o Sartaj Colony,
Tajabad, Nagpur.
6. Sk. Ismail Mannu Miyan Saheb,
aged 38 yrs. R/o Opp. Amanullah
Seth Masjid, Mominpura Nagpur.
7. Razia Begum w/o Marhum Noor Khan
aged 50 yrs. R/o Hathi Khana Killa,
Nagpur.
8. Tahera Begum w/o Abdul Rehman
Tailor Saheb, aged 46 yrs., R/o
Sartaj Colony, Tajabad, Nagpur.
9. Sagira Begum Abdul Sattar Saheb,
aged 40 yrs. R/o Opp. Corporation
Hospital, Mominpura Nagpur.
10. Salima Begum Mohd Nasim,
aged 36 yrs., R/o Azad Colony
Tajabad, nagpur.
11. Azima Begum Mohd. Hanif,
aged 38 yrs., R/o Z. P. Hindi School
Kanhan Distt. Nagpur. APPELLANTS.
VERSUS
1. Gulam Nabi Channu Miya,
Thr. L. Rs.
1-A. Khatijatual Kubra wd/o Gulam Nabi,
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aged 55 yrs., Occu. Retired Teacher,
R/o Behind Tanzim Bag, Dahi Bazar,
Itwari Nagpur.
1-B. Uzma Nausin d/o Gulam Nabi,
aged 19 yrs., Occu. Nil.
1-C. Mohd. Shoeb Gulam Nabi,
aged 18 yrs., Occu. Nil.
Both R/o Tanzim Bag, Dahi Bazar,
Itwari Nagpur.
2. Zubedabi d/o Channu Miya,
aged 50 yrs. R/o Dahi Bazar,
Itwari Railway Station, Nagpur.
3. Sayeedabi wd/o Gulam Rasul,
aged 60 yrs., R/o Dahi Bazar,
Itwari Railway Station, Nagpur.
4. Dilshad Begum w/o Chhote Miyan,
Maniyariwale, aged 37 yrs., R/o Chhota
Bengali Panja, Near Masjid, Maskasath,
Itwari Nagpur.
5. Naushad Begum w/o Shaikh
Manjumiyan Coolerwale,
aged 35 yrs., R/o Bada Bengali Panja,
Maskasath, Itwari Nagpur.
6. Irshad Begum d/o Ghulam Rasul,
aged 33 yrs., R/o Dahi Bazar,
Itwari Railway Station, Nagpur.
7. Mustaq Ahmed Ghulam Rasul,
aged 30 yrs., R/o Dahi Bazar,
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Itwari Railway Station, Nagpur.
8. Shamshad Begum w/o Saleem Bhai,
Kabadiwale, aged 41 yrs., Teka
Azadnagar, Near Beebaghat,
Beside house of Pyaru Bhai,Nagpur. RESPONDENTS.
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Shri. Rajiv Madkholkar & Shri V. S. Kukdey, Counsel for the
appellants.
Shri. Shabbir Husain, Counsel for the respondents.
CORAM: C. L. PANGARKAR J.
Date: 20th AUGUST 2009.
ORAL JUDGMENT:
This Second Appeal is filed by the original plaintiff who lost in the First Appellate Court since the First Appellate Court set aside the decree passed by the trial Court. The parties herein after are referred to as plaintiff and defendant.
2. The facts giving rise to the appeal are as follows:
Plaintiffs are sons and daughter of one Hakimmiya son of ::: Downloaded on - 09/06/2013 14:54:16 ::: 5 Rasulkhan who died in the year 1931. Hakimmiya's father Rasulkhan was the original owner of the suit property and he died in the year 1917 leaving behind him a widow, three sons and a daughter. Few years after the death of Rasulkhan his widow died and the property came into the hands of three sons and daughter namely Sahebkhan, Hakimkhan, Ahamad khan and Munirbi. The three sons inherited 28.56 Ps. Share in the entire property of Rasulkhan while Munirbi inherited 14.28 Ps. Share. Three sons of Rasulkhan were joint in estate but separate in mess. They were therefore occupying separate portion of the property. Youngest son Ahamad died in 1928. Two years thereafter Hakimmiya died.
Thereafter in the year 1946 Sahebkhan, Munirbi and heirs of Hakimmiya and Ahamad decided to effect the partition of the property of Rasulkhan. A Panchayat was therefore called to effect amicable settlement between the parties. Accordingly a partition took place. A settlement was arrived at which was reduced into writing on 25.08.1946. It was decided that 2/7th share would go to the sons and heirs of the son of Rasulkhan and 1/7 th would go to Munirbi. On 25.08.1946 Sahebkhan in presence of panchas ::: Downloaded on - 09/06/2013 14:54:16 ::: 6 declared that out of love and affection he was gifting his property to plaintiff No.1. Accordingly plaintiff No.1 became owner of property of Sahebkhan. It is also the contention of plaintiffs that on the same day Rabiyabi and Bibi daughters of Ahamadkhan also orally gifted their share in the suit property in favour of their brother Abdul Rehman Khan. Thus Abdul Rehman became the owner of the entire 2/7th share of Ahamadkhan. He sold his entire 2/7th share to plaintiff No.1 on 19.05.1973 by registered sale deed. Similarly Muneerbi also sold her 1/7th share in the property to plaintiff No. 1 on 05.10.1974. Thus it is the contention of the plaintiffs that plaintiff No.1 became the absolute owner of 5/7th share in the suit property apart from 2/7th share which he inherited from his father.
The said settlement arrived at between the parties was even signed by Channumiya son of Nannumiya. However thereafter Channumiya left along with his family for Hyderabad. After Hyderabad merged into Union of India Channumiya came back to Nagpur and requested the plaintiff to allow him to reside in the portion of the house. He agreed to pay Rs. 6/- as rent and thus Chunnumiya started occupying the portion of the suit house as a ::: Downloaded on - 09/06/2013 14:54:16 ::: 7 tenant. Plaintiffs called upon Chunnumiya to pay the rent.
Channumiya and his heirs instead of paying rent raised a contention that suit property belonged to them, the same having been gifted to them by Sahebkhan before migrating to Pakistan.
Thus the defendants asserted title in themselves and denied the plaintiffs status as land lord. Since the relationship of land lord and tenant was denied the plaintiffs instituted this suit in the civil Court without obtaining the requisite permission from the Rent Controller under the C. P. & Berar Rent Control Order.
3. Defendants filed their Written Statement and resisted the claim of the plaintiff. They denied all allegations made by the plaintiffs. Their contention is that the suit property belonged to Sahebkhan who had gifted the same to the defendants under a oral gift deed. They contend that they are therefore the owners of the suit property and they are occupying the same in their own right.
Further they contend that the suit without obtaining permission of the Rent Controller was not maintainable.
::: Downloaded on - 09/06/2013 14:54:16 ::: 84. Learned Judge of the trial Court found that the partition was effected between the heirs of deceased Rasulkhan on 25.08.1946. Sahebkhan had gifted his 2/7th share in favour of plaintiff so to Rabiyabi and Bibi. He also found that the sale deeds dated 19.05.1973 and 05.12.1973 were bonafide and plaintiffs had become absolute owner of the suit property. He found that permission of the Rent Controller was not necessary since the defendants had set up a title in themselves. He also negatived the theory of adverse possession and decreed the suit.
5. Feeling aggrieved by the decree passed, the defendants preferred an appeal before the District Judge. The learned District Judge upheld all the findings of the trial Court but allowed the appeal filed by the defendants and dismissed the suit of the plaintiffs on the ground that no notice terminating the tenancy after forfeiture under Section 111(g) was issued and therefore the suit was not maintainable. The plaintiffs feel aggrieved by that and prefer this Second Appeal.
::: Downloaded on - 09/06/2013 14:54:16 ::: 96. Second Appeal has been admitted on following substantial question of law:
Whether notice under Section 111(g) of the Transfer of Property Act is necessary before filing of suit for eviction if the tenant renounces his character and claims ownership in himself or in some third party and disclaims the title of his landlord and whether the suit filed without issuing such notice is maintainable?
7. I have heard the learned counsel for the appellant and the respondent. As stated earlier the appeal has been admitted on the above substantial question of law. Respondent has filed cross objection but that is not admitted on any substantial question of law. To my mind every cross objection would be required to be treated as falling within the scope of Section 100 Civil Procedure Code and would therefore be required to be admitted only on substantial question of law. Except the finding relevant to the substantial question of law all other findings are concurrently in favour of the plaintiff. In Second Appeal no concurrent finding can be assailed unless it is based on some substantial question of law.
Since during the course of the arguments the learned counsel for ::: Downloaded on - 09/06/2013 14:54:16 ::: 10 respondent did not raise any substantial question of law with regard to those findings which are against the respondents, I need not consider the cross objection . To my mind the arguments for or against those findings cannot be entertained. Thus ignoring the cross objection the substantial question of law needs to be decided.
8. It has been concluded by both the Courts below that the plaintiffs are the owners and the defendants are tenants. It is also held that the suit house is governed by the Rent Control Order. The learned Judge of the trial Court while answering issue No. 12 observed categorically, that since the defendants denied their status as tenants and set up title in themselves on the basis of gift suit before the civil Court was maintainable. The appellate Court while discussing the point No.5 has also observed that since the defendants denied the title of the plaintiff and set up title in themselves the suit could be filed in civil Court without obtaining permission of the Rent Controller. Thus on the question whether the suit could be filed in such cases without permission of the Rent Controller, there are two concurrent findings.
::: Downloaded on - 09/06/2013 14:54:16 ::: 119. In this regard the decision of this Court is very eloquent .
Said decision is reported in Ashwinikumar Govardhandas Gandhi and Another ..Vs.. Gangadhar Dattatraya Gadgil 1990 Maharashtra Law Journal 18 and the observation is as follows:
"In the result, our answer to the question referred would be as follows:
"The provisions of clause 13(1)(a) of the C. P. and Berar Letting of Houses and Rent Control Order, 1949 would come in the way of giving a notice without obtaining the permission of the Controller only in respect of classes covered by conditions (10 and (3) of clause (g) of section 111 of the Transfer of Property Act. That prohibition will not apply to cases covered by condition of clause (g) of section 111 of the Transfer of Property Act, and since the present case falls under the latter category, the permission of the Controller would not be necessary for giving a notice determining the lease as contemplated by clause (g) of section 111 of the Transfer of Property Act. The suit was therefore maintainable, even without obtaining the permission of the Controller. The reference is answered accordingly."
This case shall, now go back to the learned Single Judge and we direct that the papers be placed before the learned Single ::: Downloaded on - 09/06/2013 14:54:16 ::: 12 Judge, for disposal according to law. "
It is thus clear that even when a house is governed by the Rent Control Order, if the tenant clearly sets up title in himself and denies that of the landlord the suit could be filed for eviction without the permission of the Rent Controller. This is so because the tenant incurs forfeiture as is contemplated by Section 111(g) of Transfer of property Act. This decision however does not deal with the question as to whether or not a notice under Section 106 of the Transfer of Property Act would still be required to be issued before filing of the suit. Learned Judge of the First Appellate Court however observed that decision in Ashwinikumar lays down a proposition that such a notice would be necessary. Observation is not correct. After having gone through the judgment I do not find that such a proposition is laid down in that judgment. On the other hand the facts of that judgment would disclose that an option of issuing notice of forfeiture was exercised. Therefore in that decision question as to whether such notice should or should not be issued could not fall for determination. Section 111 of the Transfer of Property Act reads as follows:::: Downloaded on - 09/06/2013 14:54:17 ::: 13
111. Determination of lease.- A lease of immoveable property determines-
(a) by efflux of the time limited thereby;
(b) where such time is limited conditionally on the happening of some event- by the happening of such event;
(c) where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any event- by the happening of such event;
(d) in case the interest of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right;
(e) by express surrender, that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them;
(f) by implied surrender;
(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter [***]; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; [or(3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event]; and in [any of ::: Downloaded on - 09/06/2013 14:54:17 ::: 14 these cases] the lessor or his transferee [gives notice in writing to the lessee of] his intention to determine the lease;
(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other. "
Shri Madkholkar learned counsel for the landlord submits that such a notice determining the tenancy would not be necessary once a tenant incurs forfeiture. He relied on a decision reported in Anyaji Raghobaji Bundhade Vs. Vishweshwar Raghobaji Bundhade & Ors.
2008(6) Bombay C. R. 820. The decision has no bearing on the case at hand. In the reported case the tenant had issued a notice claiming ownership and therefore land lord issued a notice terminating the tenancy. It is thus clear that after disclaimer by tenant notice was issued terminating the tenancy. Yet another decision reported in B. K. Sharma (since deceased through L. Rs. & Ors.) Vs. Sitaram Sakharam Thoge (since deceased through L. Rs.) 2009(2) Bombay C. R. 25 was placed before me. This case too has no bearing on the case at hand as the status of the defendant was treated as that of a licencee. The third decision is reported in Isak Mahamad Wagale, since deceased by his heirs Vs. Jainuddin ::: Downloaded on - 09/06/2013 14:54:17 ::: 15 Mohamad Yusuif Mulla & others 2005(50 Bombay C. R. 686. in this decision following observations are made:
"The learned trial Judge came to the conclusion that there was no written notice issued by the plaintiffs to the defendant No.1 and therefore, the plaintiffs had no right to seek shelter of Section 111(g) of the Act to determine the lease by forfeiture. The learned Appellate Court Judge while reversing the findings come to the conclusion that the act of disclaimer on behalf of defendant No.1 of title of plaintiffs was sufficient to show that there was constructive notice and no further notice was required. In support of this aspect the learned Appellate Court Judge put reliance on the judgment of this Court in the case of (Vidyavardhak Sangh Company v. Ayyappa Sanirimallappa and Ors.)1, reported in A. I. R. 1925 Bombay 524. Perusal of this judgment shows that it was held by Division Bench of this Court that a disclaimer of the Lessor's title by the annual tenant of a holding to which section 84 applies , is, if made prior to suit, a sufficient cause of action to enable the lessor to recover possession without proof of notice to quit. In the present case, before us, it is seen from the record that not only the defendant No.1 had expressed his intention to disclaim the title of the plaintiffs but in fact he acted in that manner by obtaining entries in his name as owner of the property in Revenue as well as Grampanchayat record and thereby does not dispute that he ::: Downloaded on - 09/06/2013 14:54:17 ::: 16 claimed property as his own property. If this was the position prior to the suit, then in my considered view there would be sufficient cause of action to enable the lessor to file the suit without proof of formal notice to quit, as observed by the Division Bench of this Court in the aforesaid ruling."
This decision seems to have been rendered relying on a decision reported in A. I. R. 1925 Bombay 524. The decision in A. I. R. 1925 Bombay 524 is based on an unamended Section 111(g) of the Transfer of Property Act. In 1929 the Section was amended and the following words were added:
"gives notice in writing to the lessee".
The decision therefore appears to be per incurim. But for these words notice would not be necessary. Legislature in its wisdom has added those words and they must have been added with some intention. These words therefore have to be read as they are. If they are read then it is obvious that the Legislature intended that even after forfeiture a tenancy would be required to be terminated.
Supreme Court had an occasion to deal with the question in a case reported in Guru Amarjit Singh V. Rattan Chand and others AIR 1994 Supreme Court 227. The Supreme Court observes as follows:
::: Downloaded on - 09/06/2013 14:54:17 ::: 17"The question then emerges whether setting up a title in themselves as owners or acquisition of title and continuance in possession by operation of law or plea of adverse possession amounts to forfeiture, under Clause 92) in the background and circumstances of the case. The right of forfeiture is founded upon the existence of a lease and the jural relationship of lessor and the lessee as contemplated under S. 105 of the Act. It is implicit that the lease is in operation the lessor had been given right to determine such a lease for breach of a covenant or for disclaimer by the lessee or for the insolvency of the lessee, on the happening of any of the three specified events ipso facto does not put an end to the lease, but in only exposes the lessee to the risk of forfeiting his lease and give a right to the lessor, if he so elects, to determine the lease. Under Clause (2) disclaimer by denial of the landlord's title or setting up a title in himself or third party is a ground for forfeiture. In other words, there must be a renunciation of the character of the lessee as such either by setting up a title in himself or in other person or unequivocal plea of adverse possession . But the repudiation must be clear and unequivocal and anterior to the issuance of the notice determining the lease under S. 111(g) of the Act and put the lessor to notice of determination of the lease. The disclaimer may be in the pleading anterior to the suit in question or in any other documents, but directly relatable to the knowledge of the lessor. An incidental statement per so does not operate forfeiture.::: Downloaded on - 09/06/2013 14:54:17 ::: 18
In Abdulla V. Mohd Muslim, AIR 1926 Cal 1205 at 1206 it was held that a denial of the execution of Kabuliat is not denial of title. So it would mean only repudiation of jural relationship as lessor and lessee and does not tough upon title. In case of proof of lease tenant is estopped under S. 116 of Evidence Act to deny title of the landlord. In Bhiwaji v. Tuka Ram AIR 1916 Nagpur 15(2) & 16 it was held that by selling or mortgaging the property by the lessee is not necessarily a denial of the title of the lessor. The same view was reiterated in Prag Narain v. Kadir Baksh (1913) ILR 35 All 245 at p. 148; Mohammad Mahmud Khan v. Laja Mal, AIR 1934 Lahore 289 at p. 290 and Vithoba V. Bapu (1891) ILR 15 Bom 110. Some State Buildings (Lease and Rent) Acts provides plea of bona fide denial of title and on its being upheld land lord has to establish title in a civil court. If the plea of tenant is found not bona fide, it itself is a ground for eviction. Non acceptance of the relation ship of landlord and the tenant, therefore, does not amount to disclaimer of title as stated earlier. It is implicit that the very existence of the lease and jural relationship of lessor and the lesee is a pre-
condition to invoke forfeiture under S. 111(g) of the Act. It is, therefore, necessary to plead and establish, if denied, the relationship of landlord and tenant and on proof thereof the condition prescribed in S. 111(g) gets attracted and itself is a ground for election to the land lord to determine the lease under S. 111(g) and lay the suit for eviction ."
::: Downloaded on - 09/06/2013 14:54:17 ::: 19In yet another decision reported in Devasahayam (dead) By L.Rs. Vs. P. Savithramma And Others (2005)7 Supreme Court Cases 653, Supreme Court observes as under:
"23. Under the provisions of the Transfer of Property Act, a landlord can evict his tenant only upon service of proper notice as envisaged under Section 106 of the Transfer of Property Act. A lease can be determined by forfeiture inter alia when the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself. But even in such a case, the lessor must give notice in writing to the lessee of his intention to determine the lease."
10. Law therefore seems to be well settled that where a tenant disclaims title of the landlord and sets up title in himself he incurs forfeiture but the option would be left with the landlord to determine the tenancy or not to determine it. The out come of the discussion is that a notice under Section 106 would be necessary in cases of forfeiture also.
11. Shri Madkholkar learned counsel then submits that there was no plea of want of notice and as such it could not have been ::: Downloaded on - 09/06/2013 14:54:17 ::: 20 raised for the first time in this second appeal. He relied on a decision reported in Abdul Rahim Vs. Mohd. Azimuddin AIR 1965 Patna 156. The decision has no bearing on the case. In this suit the defendant did raise a plea that the premises were governed by Rent Control Order and without obtaining permission from the Rent Controller the suit could not be instituted. To my mind even absence of such a plea would not make any difference. If the law requires that a notice is required to be given after the forfeiture for termination of tenancy that would be purely a question of law which can be raised at any time. If therefore no notice terminating the tenancy was given the suit itself would be premature and one without any cause of action. In the instant case admittedly no notice under Section 106 has been issued terminating the tenancy.
Therefore the appeal must fail and same is liable to be dismissed.
Cross objection is also dismissed. Since the appeal fails on a technical ground I leave the parties to bear their own costs.
JUDGE svk ::: Downloaded on - 09/06/2013 14:54:17 ::: 21 ::: Downloaded on - 09/06/2013 14:54:17 :::