Bombay High Court
Shri Ramesh S/O Dhanjibhai Somayya And ... vs Gomtibai Govindprasad Ganediwal on 7 July, 2025
1 SA253.21 (J).odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO. 253 OF 2021
APPELLANTS : 1] Ramesh S/o Dhanjibhai Somayya,
Aged about 67 years, Occu. Business,
2] Rashmikant S/o Dhanjibhai Somayya,
Aged about 65 years, Occu. Business,
3] Jaykant S/o Dhanjibhai Somayya,
Aged about 63 years, Occu. Business,
All R/o Old Cotton Market Road,
Amravati, Tq. and Dist. Amravati.
VERSUS
RESPONDENT : Gomatibai Govindprasad Ganediwal (Dead),
through LRs
(i) Gopalkrushna S/o Govindprasad Ganediwal,
Aged about 65 years, Occu. Business,
(ii) Smt. Premlata Wd/o Laxmikant Ganediwal,
Aged Adult,
All R/o C/o Dhanraj Lane, Amravati,
District Amravati.
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Mr. M. G. Bhangde, Senior Advocate with Mr. A.G. Baheti, Advocate
for the appellants
Mr. Akshay Sudame with Mr. Abhijeet Khot, Advocates for the
respondents.
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CORAM : M. W. CHANDWANI, J.
DATE : JULY 07, 2025
ORAL JUDGMENT
2 SA253.21 (J).odt 1. Heard.
2. The appellants are the legal heirs of the unsuccessful original defendant no.3 in Special Civil Suit No. 16 of 1985 and unsuccessful appellant in Regular Civil Appeal No. 252/2000 before the first Appellate Court. Whereas, the respondents are the legal heirs of the original plaintiff in the said civil suit and the respondent before the first Appellate Court. Both the Courts below neither believed the defence of the appellants/defendants nor granted the prayer made in the counter claim filed by them and the suit for possession came to be decreed.
3. The relationship between the plaintiff and the defendants was that of landlord and tenant. The respondent/plaintiff claimed that, by executing an agreement of sale dated 23.09.1969, the defendants/appellants had agreed to purchase the suit property. Before that, the appellants/defendants had issued a notice dated 11.09.1969 for surrender of tenancy. The appellants/defendants did not perform their part of the contract by paying the balance consideration as agreed. The possession of the appellants/defendants in the suit premises in wake of the agreement was in the capacity of 3 SA253.21 (J).odt purchasers. Since they failed to perform their part of the contract, a civil suit bearing Special Civil Suit No. 16/1985 came to be filed before the Court of Civil Judge, Senior Division, Amravati for possession of the suit property. The original defendants appeared in the suit and denied the claim of the original plaintiff. They came up with a defence that though the agreement was signed by them, it was never to be acted upon, and it was a nominal document which the respondent/plaintiff executed to overcome the bar of increase in rent. According to them, they are still tenants of the suit premises and without obtaining permission to serve a notice under the provisions of the C.P. and Berar Letting of Houses and Rent Control Order, 1949, the suit for possession is not maintainable. The original defendants had also filed a counter claim alleging that even according to the alleged agreement, they are ready to purchase the property and sought specific performance of the contract. The trial Court did not agree with the case put up by the appellants before it and decreed the suit, whereas, the counter claim filed by the appellants/defendants came to be dismissed.
4. Being aggrieved with the decreeing of the suit, the appellants/defendants preferred an appeal bearing Regular Civil 4 SA253.21 (J).odt Appeal No. 252/2000 before the first Appellate Court which was an unsuccessful attempt. Feeling aggrieved with the dismissal of the appeal, the present Second Appeal came to be filed.
5. By order dated 16.03.2023, this Court issued notice to the respondents on the substantial questions of law mentioned in the memo of appeal at serial numbers 2, 6, 7, 10 and 11, which read as under :
"2. Whether the finding of the courts below that the defendants surrendered their tenancy rights vide their notice dated 11.09.1969 can be said to be correct, in absence of the said alleged notice being produced on record by the plaintiff and the defendants continued in possession of the suit premises?
6. Whether the courts below are correct in holding that the defendants by their alleged notice dated 11.09.1969 surrendered the tenancy, on the basis of recital in the alleged agreement dated 23.10.1969 (Ex. 85) which finding is not only contrary to the provisions of the Evidence Act, relating to the proof of document, its contents, the truthfulness thereof and sections 91 and 92 but also material on record especially the absence of reference to the said alleged notice dated 11.09.1969 in the Quit Notice dated 07.01.1985 (Exh. 85).
7. Whether the findings of the courts below that the defendants failed to prove their readiness and willingness to perform their part of contract under the alleged agreement of sale dated 23.09.1969 (Ex. 85) is perverse?
10. When the plea of defendants was that the agreement 5 SA253.21 (J).odt of sale dated 23.10.1969 (Exh. 85) was nominal document and was not to be and was not in fact acted upon, could the Courts below reject the plea of defendants on the basis of recitals in the said agreement of sale that too without even noticing the striking features of the case viz.
i) If the tenancy has come to an end and the possession of defendants was pursuant to the alleged agreement, there could not be any requirement of payment of amount of Rs. 500/- per month by the defendants to the plaintiff.
ii) The notice dated 07.01.1985 (Exh. 95) sent by the advocate of the plaintiff prior to filing of the suit neither refers to the alleged notice dated 11.09.1969 nor the fact that it was not traceable.
iii) Though as per the alleged agreement, the defendants were required to Rs. 9000/- per month towards consideration for sale from 01.11.1975 to 01.11.1984, the plaintiff did not complain about the non-
payment of even a single installment by the defendants and filed the present suit after a period of fifteen years from the date of the alleged agreement of sale.
iv) Though the original of the said agreement should have been in custody of the defendants, they being the alleged purchasers, it was with the plaintiff and the defendants asked for its copy vide reply notice dated 13.02.1985 (Exh. 168).
v) The following admissions of the plaintiff's husband Mr. Govind prasad:
a) "I had read the notice dated 11-09-69 when it was received. I received the notice on 11.9.69. The notice was bearing the signature of all the defendants i.e. deft.no.1 to 4. I do not remember when I saw that notice at last, I cannot tell the date, month and year when I saw that notice. The notice was not bearing the signature of advocate. The alleged notice was hand-written. It was written in Hindi, as far as I remember. The notice was of one page of the paper. I have a typewriter. I cannot tell 6 SA253.21 (J).odt whether the plaint was typed on my typewriter. I cannot tell whether the amendment was typed on my typewriter."
b) "I remember. Def no. 3 and 4 gave me information about the facts mentioned in para 1(v). I cannot tell whether the mill was installed in 1983 in M.I.D.C. There was oil mill prior September: 1969. Oil Mill was in running condition when Exh. 85 was scribed."
c) "It is true that defendants 1 to 4 after preparing foundations installed expeller for Oil Mill. Defendants 1 to 4 also installed ether machineries of oil mill. The height of roof was also increased. Defendants have made change and alterations in the suit premises to suit the oil mill. There was consent of mine for all the improvements made by defendants 1 to 4."
d) "I did not take any surrender deed in respect of tenancy. In respect of suit premises from defendants 1 to
4. The quit notice is not traceable. It is a matter of importance. I cannot assign any reason as to why there is no mention in the notice Exh. 95 that quit notice is not traceable. There is no reason as to why I have not mentioned about tracing of quit notice in the original plaint. It is not correct to say that defts 1 to 4 did not give quit notice dt. 11.9.69 to plaintiff. and therefore this fact is not mentioned in the notice Exh. 95. It is not correct to say that as the defendants have averred in their pleading that they had not given quit notice to the plaintiff and therefore, plaintiffs made amendment in the plaint alleging that notice is not traceable. Quit notice was a important document. I had not kept quit notice with exh.
85. Quit notice was concerning with Exh.85. I cannot assign any special reason as to why I have not kept quit notice with exh. 85. I do not remember with which papers I had kept the quit notice. I do not remember whether I had not kept Exh. 85 in the file by punching. It is not my practise that important papers are kept in the file by punching. Exh. 85 shown to the witness. states that there is punching to it. Even after seeing Exh. 85 I cannot tell whether it was in a punching file."
11. Whether the courts below are correct in holding that 7 SA253.21 (J).odt the document styled as agreement of sale dated 23.09.1969 is in fact an agreement of sale as pleaded by the plaintiff and not a nominal agreement which was not to be acted upon as pleaded by the defendants?"
6. I have heard Mr. M. G. Bhangde, learned Senior Counsel assisted by Mr. A.G. Baheti, learned counsel appearing for the appellants and Mr. Akshay Sudame with Mr. Abhijeet Khot, learned counsels appearing on behalf of the respondents. Perused the record and proceedings.
7. Mr. Bhangde, learned Senior Counsel submitted that the entire case of the respondents was depending on surrender of the tenancy by the appellants but the said notice has not been placed on record. According to the learned Senior Counsel, in the absence of the said notice on record, it cannot be said that the appellants had surrendered the tenancy in respect of the suit premises. According to him, the agreement of sale has also not been proved in wake of the provisions of the Indian Evidence Act, 1872. In order to buttress his submission, he seeks to rely on a decision of this Court in Sir Mohammed Yusuf and another .vs. D and another1, particularly paragraph 42 thereof, wherein this Court has held as under :
"42. ..... The evidence of the contents contained in the 1 AIR 1968 Bombay 112 8 SA253.21 (J).odt document is hearsay evidence unless the writer thereof is examined before the Court. We, therefore, hold that the attempt to prove the contents of the document by proving the signature or the handwriting of the author thereof is to set at nought the well recognised rule that hearsay evidence cannot be admitted. This question has been discussed by Halsbury at paragraph 533 at page 294 (Halsbury's Law of England, 3rd Editi Vol. 15) under the heading 'Hearsay' says Halsbury:
".. .. .. Statements in documents may also be hearsay. So, if A had taken counsel's opinion before acting, the contents of the opinion would be admissible for the same purpose, but not to prove the truth of any statement of fact therein".
In paragraph (534) Halsbury has discussed the reasons for rejection of hearsay evidence and says:
"The reasons advanced for the rejection of hearsay are numerous, among the evidence being the irresponsibility of the original declarant, the depreciation of truth in the process of repetition, the opportunities for fraud which its admission would offer, and the waste of time involved in listening to idle rumour."
8. Reliance is also placed on a subsequent decision of this Court in Prakash Cotton Mills Pvt. Ltd. .vs. Municipal Commissioner for Greater Bombay and others,2 wherein the principle laid down in Sir Mohammed Yusuf (supra) is reiterated.
9. A decision of the Hon'ble Supreme Court in Sardar Govindrao Mahadik and Another .vs. Devi Sahai and others3, has also been pressed into service, wherein at paragraph 38, the Supreme 2 1982 Mh.L.J. 840 3 (1982) 1 SCC 237 9 SA253.21 (J).odt Court has observed as under :
"38. The next act of part performance pleaded by the mortgagee is that the nature and character of possession changed as recited in the contract. Mortgagee was in possession as mortgagee. Now according to him since the date of execution of the sale deed the nature of possession changed. For this he relies upon a statement in the sale deed Ext. D-1 wherein it is stated that he is being put in possession as owner. This mere recital is hardly indicative of the change in the nature of possession. There is no evidence to show that he moved the authorities that he would be liable to pay taxes as owner. There is no overt act on his part to so assert possession as owner. A mere recital in the disputed sale deed is of dubious evidentiary value and when it would be pointed out that he was never willing to perform his part of the contract which is a pre-requisite for claiming protection of the doctrine of part performance it will be shown that he believed himself to be a mortgagee and acted as such even at a date much later than October 10, 1950, from which date he claims to be the owner.
10. Taking his argument further, the learned Senior Counsel vehemently submitted that even if there is an admission of any fact, the said admission cannot be relied upon unless the maker of it is confronted with such an admission under Section 145 of the Indian Evidence Act. For this purpose, he seeks to rely on a decision of this Court in Deshmukh and Co. (Publishers) Pvt. Ltd. .vs. Avinash Vishnu 10 SA253.21 (J).odt Khandekar and others4, wherein at paragraph 42 this Court has observed thus -
"42. .. .. .. In other words, concession with respect to formal proof of document does not dispense with necessity to prove truth thereof. Mere no objection to formally exhibit documents neither amounts to an admission of document nor it can be treated as an admission of contents thereof. The only person competent to give evidence on the truthfulness of the contents of the documents is the writer thereof examined before the Court. No such writer was examined. The attempts to prove the contents of the documents by proving the signature has set at nought the well recognised rule that hearsay evidence cannot be admitted. In this view of the matter contents of Ex. 53 to 70 cannot be said to have been proved by the plaintiffs."
11. Conversely, Mr. Sudame, learned counsel appearing on behalf of the respondents submitted that the trial Court as well as the first Appellate Court have very well dealt with the provisions of law ; more particularly, the first Appellate Court which has given proper reasoning to support its decision. According to the learned counsel, in wake of Section 111 of the Transfer of Property Act, 1882, there is no question of seeking permission to serve the notice under clause 13 of the C.P. and Berar (Letting of Houses) and Rent Control Order. He supported the judgment of the trial Court as well as the first Appellate 4 2005 (3) Mh.L.J. 387 11 SA253.21 (J).odt Court. In support of his submissions, he relied on a decision of the Hon'ble Supreme Court in Kamlabai and others .vs. Mangilal Dulichand Mantri,5 wherein at paragraph 19, the Supreme Court has held as under :
"19. Sub-clause 3 of this Section thereafter provides that the Rent Controller shall grant permission if he is satisfied in respect of grounds enumerated as sub- clauses of clause 3 of Section 13. The scheme of this Section therefore clearly indicates that the permission which is required under Sec. 13 is only needed when the landlord wants to terminate the tenancy. It is not at all necessary if the tenant wants to surrender the lease or terminate the tenancy or vacate the premises. Section 106 of the Transfer of Property Act reads as under:-
"106. In the absence of a contract or local law or usage to the contrary, a lease of immoveable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months, notice expiring with the end of a year of the tenancy, and a lease of immoveable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of the tenancy.
Every notice under this section must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party or to one of his family or 5 (1987) 4 SCC 585
12 SA253.21 (J).odt servants, at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property."
This provides for termination of the lease and it is clear that the lease could be determined either by the lessor or by the lessee and it is only when the lease is determined by the lesser i.e. Iandlord that provisions of Section 13 of the C.P. & Berar Rent Control order is attracted but not otherwise.
12. Having heard the learned counsels for the respective parties and having gone through the judgments impugned, it transpires that the predecessor of the appellants was the tenant of respondent Gomatibai. It is not in dispute that the agreement of sale (Exh.85) had been executed by the appellants' father showing his readiness and willingness to purchase the property of the landlord. The recitals of the agreement (Exh.85) also reveal that it was agreed between them that the possession of the suit property thereafter will be governed by the agreement of sale (Exh.85) and not as a tenancy. Therefore, though much reliance has been placed by the learned Senior Counsel for the appellants on the ground that the notice that was allegedly sent by the appellant/defendant to the respondent/ plaintiff surrendering his tenancy has not been placed on record, but the fact remains that the effect of surrendering the tenancy is mentioned in the agreement itself. Here, the appellants are coming 13 SA253.21 (J).odt up with a case that the agreement (Exh,85) was not to be acted upon and was a nominal document. Therefore, the burden lies upon the appellants to prove that there was another oral agreement and that there is an exception to Section 91 of the Indian Evidence Act. The trial Court as well as the first Appellate Court disbelieved the case put forth by the appellants.
13. It appears that the trial Court, by giving detailed reasons and taking into account the fact of filing of the counter claim by the appellants claiming specific performance of the contract, found that this itself goes contrary to the defence taken by the defendants in their written statement. The first Appellate Court in paragraph 23 has extensively dealt with the submissions of the appellants and endorsed the finding of the trial Court that the appellants/defendants failed to prove that the agreement signed by them was not to be acted upon and that it was a nominal document.
14. The learned Senior Counsel for the appellants at this stage submitted that in the counter claim, they showed their readiness and willingness to perform the alleged agreement and therefore, it can be said that specific performance is sought. The prayer in the 14 SA253.21 (J).odt counter claim filed by the appellants was for specific performance of contract. Therefore, the argument does not hold water. Be that as it may, having failed to prove that the agreement Exh.85 was a nominal document, the condition mentioned in the agreement which has been admitted by the appellant by executing the said agreement will not stand wherein issuance of notice has been admitted. Not only this, but the recitals in the agreement further reveal that both parties had agreed that the possession of the suit property will be governed by the agreement and not as a tenancy. Though, the trial court did not elaborate on the reasons, but the first Appellate Court by giving proper reasoning, has dealt with this issue. Therefore, though the alleged notice whereby the respondents claim surrender of tenancy has not been produced on record and contents of the said documents are not proved, the agreement which has been duly proved by the respondents and appreciated by the first Appellate Court, speaks about surrender of the tenancy as well as the nature of possession of the suit premises being held by the respondents with them to be governed by the agreement. Therefore, the decisions relied upon by the learned Senior Counsel to show that the non-proving the contents of the notice dated 11.09.1969 have not been proved will not help the appellants.
15 SA253.21 (J).odt
15. So far as the submission in respect of Section 145 of the Indian Evidence Act is concerned, the said Section will come into play when there are two contrary statements made by a person. In that scenario, it is mandatory to bring to the attention of the maker of it that there is an earlier statement made by him admitting some of the facts. Here is a case where the signature on the agreement is admitted and the appellants failed to prove that the agreement was a nominal one. Therefore, there was no necessity for the respondents to show the notice to the appellants to contradict them.
16. To put it all together, the trial Court as well as the first Appellate Court have justified their conclusions with well reasoned judgments and no perversity is shown in the findings recorded by both the Courts below. Therefore, no interference is required in the findings recorded by both the Courts below. No substantial question of law as argued, arises in this appeal. Hence, the Second Appeal being devoid of merits stands dismissed. No order as to costs.
(M.W.Chandwani, J.) Diwale Signed by: DIWALE Designation: PS To Honourable Judge Date: 14/07/2025 18:54:02