Chattisgarh High Court
Mamtabai vs Chakradhar Rao Bhosle on 26 November, 2008
HIGH COURT OF CHATTISGARH AT BILASPUR
Second Appeal No.394 of 1996
Thakumal
1. Mamtabai
2. Smt. Vishnukanta
3. Rukhmani
4. Bhimandas
a Sarojbai
b Kumari Poonambai
c Ku. Laxmibai
d Vijay Kumar
e Ajay Kumar
5. Smt. Savita Devi
6. Smt. Nandadevi
7. Ku. Bindubai
...Petitioners
versus
Chakradhar Rao Bhosle
...Respondents
! Shri P.K.C.Tiwari, Senior Advocate with Shri Shashi
Bhushan, counsel for the appellants.
^ Smt. Renu Kochar, counsel for the
respondent.
Single Bench : Hon'ble Shri Dilip Raosaheb
Deshmukh, J.
Dated: 26/11/2008
: Judgement
Appeal under Section 100 of the Code of Civil
Procedure, 1908
JUDGMENT
(Delivered on this 26th day of November, 2008) Legal representatives of the deceased tenant Thakumal have preferred this second appeal against the judgment and decree dated 29-2-1996 passed by the Additional District Judge, Baloda Bazar (henceforth `the lower appellate Court') in Civil Appeal No.111-A/91 affirming the judgment and decree for eviction of the tenant passed by the Civil Judge Class-II, Baloda Bazar (henceforth `the trial Court') in Civil Suit No.52-A/84 on 6-9-1985. (2) Admittedly, Shankar Rao Bhosle, who died in 1974, had inducted Thakumal Sindhi as a tenant over a house situated near Old Bus Stand Simga, Tahsil Baloda Bazar, District Raipur (henceforth `the suit house') on a monthly rent of Rs.10/-. The tenancy was monthly commencing on the first day of every English Calendar month. Provisions of Madhya Pradesh Accommodation Control Act, 1961 did not apply to the suit house. On death of Shankar Rao Bhosle in March, 1974, the suit house fell to the share of Chakradhar Rao Bhosle in a mutual partition with his brother Raghupat Rao Bhosle. Chakradhar Rao Bhosle served a registered notice dated 2-4-1984 Ex.P-1 on Thakumal Sindhi for terminating the tenancy with the expiry of tenancy in April, 1984 and seeking eviction from the suit house and arrears of rent since May, 1981 to April, 1984 with damages which was returned unserved with the remarks "out of station - refused". (3) The tenant Thakumal Sindhi resisted the suit and averred that Shankar Rao Bhosle had on 1-7-1972 agreed to sell the suit house to him and had, after receiving an advance of Rs.600/-, executed a receipt Ex.D-1 on 1-7-1972 in his favour. In this manner, from 1-7-1972 he was in possession of the suit house as owner. Relationship of landlord and tenant never existed between the plaintiff Chakradhar Rao Bhosle and the defendant Thakumal Sindhi. Shankar Rao Bhosle could not execute a registered sale-deed in favour of Thakumal Sindhi because of illness. After the death of Shankar Rao Bhosle in 1974, Thakumal Sindhi requested Raghupat Rao Bhosle to execute a sale-deed in his favour, which was denied.
(4) The trial Court framed as many as seven issues. It recorded a finding that after the death of Shankar Rao Bhosle, the suit house fell to the share of Chakradhar Rao Bhosle, who is the owner of the suit house. It was further held that Shankar Rao Bhosle had, on 1-7-1972 agreed to sell the suit house to Thakumal Sindhi for a consideration of Rs.4,000/- and received an advance of Rs.600/-. However, since a registered sale-deed was not executed and a suit for specific performance was also not filed by Thakumal Sindhi, he was not entitled to protect his possession under Section 53A of the Transfer of Property Act, 1882. It was also held that by notice dated 2-4-1984 Ex.P-1, which was refused by Thakumal Sindhi, the tenancy was determined by the plaintiff Chakradhar Rao Bhosle. On these findings, the trial Court, by judgment and decree dated 6-9-1985 passed in Civil Suit No.52-A/84, granted a decree for eviction and ordered payment of Rs.600/- by the plaintiff Chakradhar Rao Bhosle to the tenant Thakumal Sindhi.
(5) Being aggrieved, Thakumal Sindhi preferred Civil Appeal No.111-A/91 before the lower appellate Court. During pendency of the appeal, Thakumal Sindhi died on 19-1-1993. His legal representatives were brought on record. The lower appellate Court dismissed the appeal while affirming the findings of the trial Court that tenancy was determined on refusal of the quit notice by the tenant and the tenant was not entitled to protect his possession under Section 53A of the Transfer of Property Act, 1882. It reversed the finding recorded by the trial Court on issue No.6 and held that the tenant had failed to prove that Shankar Rao Bhosle had agreed to sell the suit house to him for a consideration of Rs.4,000/-. It was held that the receipt Ex.D-1 could not be construed as an agreement to sell the suit house and, therefore, neither Thakumal Sindhi acquired title over the suit house nor was entitled to protect his possession under Section 53A of the Transfer of Property Act, 1882.
(6) The following substantial questions of law arise for determination of this appeal:
"(A) Whether an endorsement "out of station - refused" would amount to a valid tender of the notice and would lead to the presumption of valid service, of quit notice, u/s 114 of the Evidence Act?
(B) Whether on the facts and in the circumstances of the case the appellant is entitled to protect his possession under the provisions of S.53-A of Transfer of Property Act?
(C) Whether in the absence of a cross-
objection having been filed by the respondent/plaintiff, the lower appellate Court was justified in reversing finding recorded by the trial Court on issue No.6?"
(7) Submissions of Shri P.K.C.Tiwari, learned Senior Advocate for the appellants and Smt. Renu Kochar, learned counsel for the respondent were heard at length. Record is perused.
(8) As regards the first question of law, Section 27 of the General Clauses Act, 1897 reads as under:
"27. Meaning of service by post. - Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send"
or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post." A perusal of the endorsements made by the post-man on the envelope of the notice Ex.P-2 sent by registered post acknowledgment due shows that Thakumal Sindhi was absent at the address on 05-04- 1984, was out of station on 06-04-1984 and had refused to accept the notice on 07-04-1984. Thakumal Sindhi did not either state on oath that on 05-04-1984 and 06-04-1984 he was present at the address given in the notice or did not refuse the notice on 07-04-1984. He further admitted in cross- examination that the post-man of the Simga Post Office did not bear any grudge against him. In Anil Kumar vs. Nanak Chandra Verma, AIR 1990 SC 1215, the Supreme Court has held that the question whether the tenant had rebutted the presumption of service of notice is a question of fact. In that case, the trial Court had considered the evidence of the tenant that he was not at all present during the period when the post-man visited the premises for service and the endorsement of the post-man was, therefore, not correct. It was argued that the tenant had discharged the initial burden by examining himself and it would be for the other side to prove valid service of notice. The Supreme Court held that there could be no hard and fast rule on this aspect and unchallenged testimony of a tenant in certain cases may be sufficient to rebut the presumption but if the testimony of the tenant itself was inherently unreliable, the position may be different. It was always a question of fact in each case whether there was sufficient evidence from the tenant to discharge the initial burden. The Supreme Court upheld the concurrent finding of fact recorded by the trial Court and accepted by the High Court that notice was refused by the tenant. In the present case also the plaintiff Chakradhar Rao Bhosle has proved that the notice Ex.P-1 was sent by registered post to Thakumal Sindhi. Thakumal, D.W.-1 has admitted in cross- examination in paragraph 3 that address written on the envelope of the notice Ex.P-2 is his correct address. The presumption of valid service of notice under Section 27 of the General Clauses Act, 1897 in favour of the plaintiff, has thus not been rebutted in this case. In this view of the matter, the lower appellate Court was justified in holding that refusal of the registered notice to quit by Thakumal Sindhi is proved by the endorsement "out of station - refused" and amounts to valid service of quit notice. The first substantial question of law is accordingly answered in the affirmative. (9) As regards the question of law No.(B), the law relating to the doctrine of part performance as laid down by the Supreme Court of India in Sardar Govindrao Mahadik and another vs. Devi Sahai and others, AIR 1982 SC 989 is as under:
"31. ...... To qualify for the protection of the doctrine of part-performance it must be shown that there is a contract to transfer for consideration immovable property and the contract is evidenced by a writing signed by the person sought to be bound by it and from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. These are prerequisites to invoke the equitable doctrine of part performance. After establishing the aforementioned circumstances it must be further shown that a transferee had in part performance of the contract either taken possession of the property or any part thereof or the transferee being already in possession continues in possession in part performance of the contract and has done some act in furtherance of the contract. The acts claimed to be in part performance must be unequivocally referable to the pre- existing contract and the acts of part performance must unequivocally point in the direction of the existence of contract and evidencing implementation or performance of contract. There must be a real nexus between the contract and the acts done in pursuance of the contract or in furtherance of the contract and must be unequivocally referable to the contract."
The Supreme Court further dealt with a situation in which the person claiming benefit of part performance of a contract was already in possession prior to the contract and observed as under:
"39. Induction into possession of an immovable property for the first time subsequent to the contract touching the property, may be decisive of the plea of part performance. Mere possession ceases to be of assistance when as in this case the person claiming benefit of part performance is already in possession, prior to the contract and continues to retain possession. ...
40. .... There is an understandable and noteworthy difference in the probative value of entering into possession for the first time and continuing in possession with a claim of change in character. Where person claiming benefit of part performance of a contract was already in possession prior to the contract, the Court would expect something independent of the mere retention of possession to evidence part performance. .....
41. Section 53-A requires that the person claiming the benefit of part performance must always be shown to be ready and willing to perform his part of the contract. And if it is shown that he was not ready and willing to perform his part of the contract he will not qualify for the protection of the doctrine of part performance. ...."
(10) Applying the principles laid down by the Supreme Court of India to the facts of the present case the receipt Ex.D-1 it does not mention the consideration for which Shankar Rao Bhosle had agreed to sell the suit house to Thakumal Sindhi. Under Section 25 of the Indian Contract Act, 1872, an agreement without consideration is void. For want of consideration, the receipt Ex.D-1 can not be construed as an agreement to sell the suit house by Shankar Rao Bhosle to Thakumal Sindhi. It is pertinent to note that Raghupat Rao, P.W.-2 had produced a copy of the reply given by Thakumal Sindhi to the notice given by him to Thakumal Sindhi after the death of Shankar Rao Bhosle in which while Thakumal Sindhi had categorically admitted that he was the tenant of Shankar Rao Bhosle in the suit house and was willing to pay the arrears of rent, if any. The factum of the agreement to sell the suit house by Shankar Rao Bhosle to Thakumal Sindhi was not revealed. It is not in dispute that Thakumal Sindhi did not institute a suit for specific performance of the contract. In this manner, the finding recorded by the lower appellate Court in paragraph 9 of the impugned judgment that Thakumal Sindhi, who was a tenant in the suit house, was not entitled to protect his possession under Section 53A of the Transfer of Property Act, 1882, being in conformity with law laid down by the Supreme Court of India is impeccable. Question of law No.(B) is accordingly answered in the negative.
(11) I shall now deal with substantial question of law No.(C). In Jhawarlal Bothara vs. Smt. Kusumlata Agarwal (dead) through her L.Rs. I.D.Agrawal and others, 2007 (3) C.G.L.J. 175, this Court held as under:
"15. A reading of Order 41 Rule 22 of the Code of Civil Procedure, 1908 leaves no room for any doubt that if the respondent, in whose favour the decree is passed, desires to support the decree, it is open to him to urge in the other party's appeal that the finding of the Court below against him on any given aspect ought to have been in his favour and it is not mandatory for the respondent to file a cross objection under Order 41 Rule 22 of the Code. The words "but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour" in Order 41 Rule 22 of the Code permits the respondent, who may not have appealed from any part of the decree to support the decree and state that the finding against him in the Court below in respect of any issue ought to have been in his favour. When the respondent, thus, supports the decree, he need not file any cross-objection because when the decree is in his favour, cross- objection in such a situation is inconceivable. Though the respondent is not precluded under Order 41 Rule 22 of the Code from filing a cross-objection against a finding recorded by the Court passing the decree in his favour, it is not mandatory for him to do so because the decree is in his favour and he may, during the course of arguments, agitate that the finding against him in the Court below in respect of any issue also ought to have been in his favour. A similar view has been taken in M. Manoharan Chetti and others vs. M/s C. Coomaraswamy Naidu and Sons, Madras, AIR 1980 Madras 212, Naresh Ahir and others vs. Mst. Barhiya and another, AIR 1985 Patna 287 and Jatani Dei vs. Udayanath Behera, AIR 1983 Orissa 252. Therefore, the contention of the learned counsel for the respondent/plaintiff that due to non-filing of a cross-objection under Order 41 Rule 22 of the Code by the appellant/defendant before the lower appellate Court he is precluded from doing so in second appeal is liable to rejection."
The above decision rendered by this Court applies with full force to the question of law under consideration. Question of law No.(C) is accordingly decided in the affirmative. (12) For the reasons aforesaid, this appeal has no merit and is accordingly dismissed. In the facts and under the circumstances of the case, there shall be no order as to costs.
(13) A decree be drawn accordingly.
JUDGE 26-11-2008