Bombay High Court
Akhileshwar Singh Mangal Sing vs Mevalal Bhgawat Yadav And Another on 23 August, 2021
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
21 SECOND APPEAL NO.345 OF 2021
AKHILESHWAR SINGH MANGAL SING
VERSUS
MEVALAL BHGAWAT YADAV AND OTHERS
...
Advocate for Appellant : Thole Vinod I.
Advocate for Respondents No.1 and 2 : Mr. M. R. Sonawane
...
WITH SA/346/2021
...
CORAM : SMT.VIBHA KANKANWADI, J.
DATE : 23-08-2021.
ORDER :
1. Both the appeals have been filed by the same person, however, challenging two different decrees. It is between the same parties. Second Appeal No.345 of 2021 has been filed by the appellant/original plaintiff challenging the concurrent findings and decrees of dismissal of his suit i.e. Special Civil Suit No.574 of 2011. He had filed that suit for specific performance of the contract and permanent injunction. Learned Civil Judge, Senior Division, Aurangabad dismissed the said suit on 17-11-2015. The original plaintiff/present appellant challenged the said Judgment and decree in Regular Civil Appeal No.75 of 2016 which was heard by learned District Judge-9, Aruangabad and ::: Uploaded on - 11/09/2021 ::: Downloaded on - 08/10/2021 20:55:14 ::: 2 SA 345-2021, 346-2021 dismissed on 11-10-2019.
2. In Second Appeal No.346 of 2021, the present appellants/ original defendants are challenging concurrent decree. Present respondents had filed Special Civil Suit No.257 of 2013 before Civil Judge, Senior Division, Aurangabad for recovery of possession of the suit property and for damages as well as future mesne profits. Learned Civil Judge, Senior Division, Aurangabad decreed the suit and directed the present appellants/original defendants to handover the possession immediately and also pay damages worth Rs.1,32,000/-. Inquiry has been ordered in respect of mesne profits. The said decree was challenged by filing Regular Civil appeal No.01 of 2016 before the same District Judge-9, Aruangabad and by Judgment and decree dated 11-10-2019, the said appeal has been dismissed. Hence, the second appeal.
3. Heard learned Advocate Mr. V. I. Thole for appellants and learned Advocate Mr. M. R Sonawane for respondents.
4. It has been vehemently submitted on behalf of the appellants that while dealing with Special Civil Suit No.257 of 2013, the present respondents/original plaintiffs had come with a case that they had ::: Uploaded on - 11/09/2021 ::: Downloaded on - 08/10/2021 20:55:14 ::: 3 SA 345-2021, 346-2021 given the suit premises to the defendants on rent. Therefore, the provisions of Maharashtra Rent Control Act were applicable. The said proceedings ought to have been registered under the Rent Control Act and in view of Section 33 of the Maharashtra Rent Control Act, the learned Civil Judge Senior Division had no jurisdiction to try and entertain the rent suit. Further, there was absolutely no decision on the point that when the defendants in that suit i.e. the present appellants were contending that they are possessing the said property by virtue of agreement to sell executed in their favour, then issues in that respect were not framed. Even the learned First Appellate Court failed to consider those points and, therefore, the substantial questions of law are arising in this case.
5. Further, he submitted that in Second Appeal No.345 of 2021, the document of agreement to sell was produced and proved. In fact, the actual transaction was of a nature that defendant No.1 had booked the property with the builder, however, he had taken loan from the Bank but had no means to repay it. Therefore, he entered into an agreement with plaintiff on 09-06-2008 and thereupon plaintiff had deposited amount of Rs.2,25,000/- to the builder. He has also paid some amount in the loan account of the defendant ::: Uploaded on - 11/09/2021 ::: Downloaded on - 08/10/2021 20:55:14 ::: 4 SA 345-2021, 346-2021 No.1. He was regularly paying the installment with ICICI Bank from where the defendant No.1 had taken home loan. The last installment that was deposited by him was on 28-11-2011 and then he requested the defendants to execute sale deed in his favour. In fact, he has paid more than Rs.10 lakh towards the transaction. Both the Courts have not taken a note of that evidence and have not even considered the refund of any amount to be paid to the plaintiff. The Judgment and decree passed by both the Courts below is perverse and, therefore, that second appeal is also raising substantial questions of law.
6. Per contra, the learned Advocate appearing for the respondents vehemently submitted and supported the reasons given by both the Courts below in both the cases and submitted that no substantial questions of law are arising in this case. The Courts below had jurisdiction to try and entertain the respective suits. He relied on Kammana Sambamurthy (deceased by L.Rs.) vs. Kalipatnapu Atchutamma (deceased by L.R) and Ors., reported in AIR 2011 Supreme Court 103, wherein it has been held that, "When the wife who was also the owner of the property was not party to the agreement and there was also no express or implied authority given by her ::: Uploaded on - 11/09/2021 ::: Downloaded on - 08/10/2021 20:55:14 ::: 5 SA 345-2021, 346-2021 to her husband then Section 41 of the Transfer of Property Act would not apply. The vendee will not be entitled to seek specific performance of the agreement."
Further, reliance has been placed on the decision in A. H. Mistry & Co. vs. Awadh Narayan Singh Shiv Nayak Singh & Ors., reported in 2010 (6) Bom.C.R. 469, which is also on the same line as to when only one of the co-owner agrees to sell the property then the contract will not be binding on the other co-owners. Further, reliance has been placed on Sultan and others vs. Ganesh and others, reported in AIR 1988 Supreme Court 716, wherein it has been held that, "In a suit for declaration of title and possession filed by the plaintiff who claimed to have purchased the premises, the defendant who was in possession, claimed title by adverse possession against the vendor. The defendant never raised the plea that he was the tenant of the vendor and on the contrary denied the relationship of landlord and tenant. The plaintiff had also claimed a decree for mesne profits and rent. The decree for possession and rent was passed by the lower Courts......."
"Since the suit was not for eviction but was for possession based on title from the very beginning, ::: Uploaded on - 11/09/2021 ::: Downloaded on - 08/10/2021 20:55:14 :::
6 SA 345-2021, 346-2021 the defendant could not also claim protection under Section 13-A of the Rent Act in respect of non- payment of rent. Such plea cannot be raised at a subsequent stage."
7. At the outset, it is to be noted that when both the suits were before the same Trial Judge and the parties were fighting in the same capacity as they had contended, then it appears that both the suits ought to have been tried together and no separate Judgments ought to have been given. Same is the case with the appeal. Both the Lower Courts i.e. same Judges have given two separate Judgments on the same day. The confusions and unnecessary repetitions would have been then avoided.
8. In Special Civil Suit No.257 of 2013 when the plaintiffs themselves had come with a case that they had given the suit property on rent and the defendants were denying their said capacity then it appears that the issue regarding jurisdiction was not framed at all. That being a law point, the appellant herein can definitely raised it even at the stage of second appeal. According to the appellant in view of Section 33 of the Maharashtra Rent Control Act, the Civil Judge Senior Division had no jurisdiction to try and entertain the suit. Further, it is also to be noted that the plaintiff ::: Uploaded on - 11/09/2021 ::: Downloaded on - 08/10/2021 20:55:14 ::: 7 SA 345-2021, 346-2021 therein had come with a case that the defendant was tenant. Both the parties agree that the provisions of Maharashtra Rent Control Act are applicable to Waluj area of Aurangabad. If this is so, then it is also required to be noted, as to whether the second appeal is maintainable. In view of Dattatraya Krishna Jangam vs Jairam Ganesh Gore, reported in AIR 1965 Bombay 177, which is the decision of the Full Bench of this Court, it is then required to be seen that as to whether the second appeal is maintainable. The basic question that has to be answered is whether there was relationship of landlord and tenant between the parties and whether that relationship has been proved by the plaintifs. As regards Second Appeal No.345 of 2021 is concerned, there appears to be evidence regarding payments of installment by the plaintif in the loan account of the defendant. There is a document dated 09-06-2008 styled as agreement to sell. The defendants had come with a case that that document is a forged document. Therefore, on the basis of evidence both the Courts had come to the conclusion that plaintif has failed to prove execution of such agreement in his favour. But then when evidence has been adduced it is then required to be seen as to whether that fnding is perverse and, therefore, substantial questions of law are arising in this case requiring both the second appeals to ::: Uploaded on - 11/09/2021 ::: Downloaded on - 08/10/2021 20:55:14 ::: 8 SA 345-2021, 346-2021 be admitted, accordingly they are admitted. Following are the substantial questions of law :-
A) Whether Second Appeal No.346 of 2021 is maintainable in view of Dattatraya Krishna Jangam vs Jairam Ganesh Gore, reported in AIR 1965 Bombay 177 ?
B) Whether the Civil Judge Senior Division had jurisdiction to decide Special Civil Suit No.257 of 2013 wherein the plaintifs contended the relationship of landlord and tenant and whether the provisions of Maharashtra Rent Control Act are applicable to the suit premises ?
C) Whether Special Civil Suit No.257 of 2013 was for seeking eviction of tenant under the provisions of Maharashtra Rent Control Act or it was suit for possession on the basis of title ?
D) Whether the plaintifs in Special Civil Suit No.257 of 2013 were entitled to get possession and damages as prayed ?
E) Whether the plaintif in Regular Civil Suit No.75 of 2016 had proved that defendants No.1 and 2 therein had entered into agreement to sell the suit property on 09-06-2008 in his favour ?
F) Whether the said plaintif was and is ready and willing to perform his part of the contract ?
G) Whether the plaintif therein was entitled to the relief of ::: Uploaded on - 11/09/2021 ::: Downloaded on - 08/10/2021 20:55:14 :::
9 SA 345-2021, 346-2021 specifc performance of the contract or alternatively the Courts below ought to have granted refund of the amount paid by him towards the mitigation of loan taken by defendant No.1 ? H) Whether the Judgment and decree in both the cases passed by the Courts below are perverse and require interference by this Court ?
9. Issue notice to all the respondents, to be made returnable on 14-01-2022.
10. Learned Advocate Mr. M. R. Sonwane waives notice for respondents No.1 and 2.
11. Call for record and proceedings.
(SMT. VIBHA KANKANWADI) JUDGE vjg/-
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