Sunday, 23 April 2017

Whether landlord can seek possession of open plot as per provision of transfer of property Act?

Cause of action had already accrued on 1st May, 1988 in favour of the plaintiff, when Regular Civil Suit No. 758 of 1988 was instituted in the Court of Joint Civil Judge, Junior Division, Amravati on 3.10.1988. Eclipse upon the right of the Landlord to recover possession of 'open plot' under the Transfer of Property Act having been included in the word 'premises' governed under the C. P. and Berar Letting of Premises and Rent Control Order, 1949 began on 27.6.1989 and lasted till 31.3.2000 as the term 'house' was substituted by term 'premises' during that period to make it essential for landlord to approach Rent Controller for permission to terminate tenancy. When the legislature brought into force the Maharashtra Rent Control Act, 1999, provisions of new Rent Act gave option for the Landlord to continue with the proceedings before the Rent Controller under the old Repealed Rent Control Order if he so desires or to institute a fresh proceeding under the new Act or to recover 'open plot' of land not included in the definition of 'premises' under the new Maharashtra Rent Act, the landlord has remedy w.e.f. 31.3.2000 under the General Law i.e. Transfer of Property Act, 1882 to recover possession of open plot by approaching the competent Civil Court. Under this changed legal scenario, landlord of the 'open plot' cannot be compelled to start a fresh proceedings before the Rent Control Authority under the repealed Act to obtain permission to initiate legal proceedings against Tenant.
IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)
Second Appeal No. 79 of 1999
Decided On: 21.07.2010
 Haribhau  Rajaramji Rewasekar, 
Vs.
 Shri Swami Narayan Mandir.

Coram:
A.P. Bhangale, J.






1. The appeal impugns judgment and order dated 5.12.1998 passed in Regular Civil Appeal No. 247 of 1992 by learned Additional District Judge, Amravati which arose from dismissal of Regular Civil Suit No. 758 of 1988 decided by Joint Civil Judge, Junior Division, Amravati on 19.9.1992.
2. The plaintiff Shri Swami Narayan Mandir by Wahiwatdar had instituted Regular Civil Suit No. 758 of 1998 for recovery of possession of open plot of land admeasuring 2603 square feet bearing Plot No. 19, Gandhi Chowk, Amravati city. The defendant occupied the plot as a tenant.
3. By notice dated 1.4.1988, the plaintiff had terminated tenancy of the defendant and asked the defendant to vacate and pay arrears of rent. The defendant did not comply with the notice. Hence, suit was filed.
4. The defendant resisted the suit on the ground that, in absence of permission from the Rent Controller, the plaintiff could not have terminated his tenancy. The defendant also contended that the suit plot was leased in favour of the defendant in 1957 permanently and the defendant made permanent construction by spending Rs. 14000/- for it.
5. The trial Court found that the plaintiff is entitled to get vacant possession of the suit plot as also arrears of rent, damages and mesne profits and decreed the suit for possession and part-decreed for amount of Rs. 2,625/- as arrears of rent and damages while ordering inquiry into the mesne profits under Order 20, Rule 12 of the Code of Civil Procedure.
6. The defendant preferred Regular Civil Appeal No. 247 of 1992 before District Court, Amravati which was dismissed.
7. This second appeal preferred against above concurrent judgments was admitted on 1.8.2000 on the following substantial questions of law:
(i) Whether a suit filed on behalf of the trust is maintainable without proof of trust having permitted to file the suit as required under Section 47 of the Indian Trusts Act?
(ii) Whether the learned Courts below have committed an error of law in holding that the suit property is not a trust property on the face of the admission that the property belongs to the idol ?
(iii) Whether the land given for construction of pucca and permanent construction creates an irrevocable license under Section 60 of the Easement Act, hence the notice of termination of the tenancy is not valid ?
8. At the hearing of the appeal, due to change in legal position pursuant to ruling in Deelip v. Mohd Azizul Haq reported in (2000) 3 SCC 647 the following additional questions of law were framed:
(i) Whether the learned Courts below have committed an error in holding that the suit was maintainable even in the absence of permission from the rent control authority ?
(ii) Whether the learned Courts below are in error in holding that the suit house was not subjected to rent control order ?
9. I have heard submissions at the bar with reference to substantial questions of law agitated as above.
10. Learned Advocate Mr. Kaptan submitted that the suit instituted on behalf of Swami Narayan Mandir Trust without permission from the Trust was not maintainable in view of Section 47 of the Indian Trusts Act. Learned Advocate made reference to Section 47 of the said Act, which reads thus:
Trustee cannot delegate - A trustee cannot delegate his office or any of his duties either to a co-trustee or to a stranger, unless (a) the instrument of trust so provides, or (b) the delegation is in the regular course of business, or (c) the delegation is necessary, or (d) the beneficiary, being competent to contract, consents to the delegation.
Explanation - The appointment of an attorney or proxy to do an act merely ministerial and involving no independent discretion is not a delegation within the meaning of this section.
11. Learned Advocate contended that Kishorbhai did not prove that he is Trustee or the Manager of the Trust. No Trust Deed was produced to show that the Manager was authorised to terminate the tenancy/lease and then to institute the suit for eviction. Reference is made to ruling in J.P. Srivastava & Sons (Pvt.) Ltd. v. Gwalior Sugar Co. Ltd. and Anr. reported in MANU/SC/0927/2004 : (2005) 1 SCC 172 In Para 29, it is concluded thus:
Therefore, although as a rule, trustees must execute the duties of their office jointly, this general principle is subject to the following exceptions when one trustee may act for all (1) where the trust deed allows the trusts to be executed by one or more or by a majority of trustees; (2) where there is express sanction or approval of the act by the co-trustees; (3) where the delegation of power is necessary; (4) where the beneficiaries competent to contract consent to the delegation; (5) Where the delegation to a co-trustee is in the regular course of the business; (6) where the cotrustee merely gives effect to a decision taken by the trustees jointly.
12. Reliance is also placed on the ruling in Atmaram Ranchodbhai v. Gulamhusein Gulam Mohiyaddin and Anr. reported in MANU/GJ/0112/1973 : AIR 1973 Guj 113 to argue that decision making by co-trustees must be joint in absence of severalty in the Trust Deed, though mere formal act by one is permissible. Learned Advocate for appellant submitted that there was no proof that Kishorbhai was authorised to terminate lease and institute suit.
13. Learned Advocate for respondent contended that the plaintiff as Wahiwatdar of Swami Narayan Mandir has been accepted as landlord of the suit property and the appellant had accepted the respondent and had tendered/paid rent to him which was duly accepted. Thus, relationship of landlord and tenant is not in dispute. The question as to whether suit plot is a 'Trust property' or not does not survive when both the courts below concurrently found that the plaintiff Wahiwatdar was accepted as landlord. It is further contended that Section 47 of the Indian Trusts Act as the appellant no where took defence that the Trust is Landlord or that the rent was tendered or paid to the Trust. The word 'lessor' who can issue notice to quit under Section 106 of the Transfer of Property Act has wider meaning to include persons other than owners. The appellant had acknowledged the respondent as owner of suit property. A lessor can also evict a lessee, though he may not be owner. Decree of eviction can be passed on the basis of valid quit notice under Section 106 of the transfer of Property Act, 1882 as held in Smt Amarjit Kaur v. S.L. Hussain reported in MANU/AP/0243/2009 : AIR 2009 AP 213. Reference is also made to Barjorji Shapurji v. Shripatprasadji Viharilalji Acharya reported in MANU/MH/0154/1926 : AIR 1927 Bom 145 wherein it is held that there is no authority for holding that a mortgagee in possession cannot determine the tenancy of an annual tenant in respect of land which forms part of the mortgaged property without the consent of the mortgagor. It is also contended in view of ruling in Ismailbhai Gulam Hussain v. Additional Collector and Ors. reported in MANU/MH/0526/2006 : 2006 (4) Mh.L.J. 695 that tenant who had accepted a person as landlord and has tendered rent to him, the tenant is estopped from questioning title of the landlord. In the plaint, plaintiff has averred that he is Wahiwatdar/Manager of Swami Narayan Mandir which is not the Trust. The suit is on behalf of Swami Narayan Mandir (Landlord). The appellant cannot be allowed to create a different picture in respect of case of the plaintiff as there is no averment in the plaint regarding existence of private or public Trust so as to attract provisions of the law relating to Trust. Furthermore, once defendant/tenant had tendered/paid rent to the plaintiff's Wahiwatdar Kishorbhai which was acknowledged, the tenant in view of Section 116 of the Evidence Act is estopped from raising a plea that Swami Narayan Mandir cannot bring a suit as 'landlord' of suit property. Concurrent findings in this regard as to maintainability of the suit cannot be disturbed in second appeal even assuming that they are erroneous. The substantial question of law No. (i) is, therefore, answered to the effect that provisions of the Indian Trust Act are not attracted in the present case. Suit by the plaintiff Wahiwatdar for Swami Narayan Mandir who was already accepted as landlord was maintainable unless otherwise barred by law. Even where a property is leased by a person without title, it is not open for lessee in a suit by his lessor against him to deny the lessor's title. (See, Section 116 of the Evidence Act).
14. The trial Court as well as lower appellate court found existence of relationship of landlord and tenant between the plaintiff and defendant as rent paid by the defendant was accepted by the plaintiff. It is not case of the defendant that the suit property was demised in favour of him from any Trust. Therefore, there was no error on the part of the courts below to consider the suit property as not belonging to any Trust. Substantial question No. (ii) is answered accordingly.
15. The contention of the appellant that, in view of construction erected by the defendant and permitted on the suit plot, the defendant became irrevocable licensee in view of Section 60(b) of the Easement Act. This contention has been strongly opposed on the ground that the construction in question is neither permanent nor pucca nor such intention was expressed by the appellant (defendant) at any time. No permission was obtained from the landlord for erecting the construction on the suit plot. The Courts below have rightly rejected this contention of the defendant. Section 60(b) of the Indian Easement Act is not attracted in the facts and circumstances of the case because there is no evidence of a licence coupled with transfer of property in operation nor there is evidence to establish that the appellant had, acting upon licence, executed a work of permanent character and incurred expenses in execution of the construction of permanent character. In the absence of such evidence, no irrevocable licence was created in favour of the defendant. Substantial question of law at No. (iii) is thus answered in the negative against the appellant.
16. The next question No. (iv) is as to whether Courts below committed an error in holding that the suit was maintainable even in the absence of permission from the Rent Control Authority ? Learned Counsel for the appellant submitted that the Maharashtra Rent Control Act, 1999 (Maharashtra Act 18 of 2000 came into force with effect from 31.3.2000. In view of Section 58(b) thereof, the Central Provinces and Berar Regulation of Letting of Accommodation Act, 1946 including the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949 stood repealed. Section 58(2) of the Act, however, clarified that notwithstanding the repeal, all appeals, applications, suits and other proceedings pending under the repealed Acts shall continue and be disposed of in accordance with the provisions of the repealed Acts as if the said repealed Acts continue to remain in force and the Maharashtra Rent Act has not been passed. Section 58(2) introduced an enabling and deeming provision for any court, controller and competent authority to dispose of the pending suits, proceedings, applications filed and pending under repealed Acts. According to learned Counsel for the appellant, Clause 13 (1) of the CP & Berar Rent Control Order, 1949 prohibited landlords in Vidarbha area from giving notice of terminating tenancy of tenant without obtaining previous written permission of the controller. Under Clause 13A, production of written permission of the controller under Clause 13 (1) was made condition precedent for to obtain decree for eviction against tenant in any court or before any authority. Learned Counsel for the appellant contended that provisions of Section 58 of the Maharashtra Rent Act had saved the proceedings pending under the repealed Acts.
17. In Dilip v. Mohd Azizul Haq and Anr. reported in MANU/SC/0181/2000 : (2000) 3 SCC 607 it is observed thus:
7. In theory the appeal is only a continuation of the hearing of the suit. Accordingly, the word 'suit' in the Order has to be understood to include an appeal. The result is that if at the time of institution of the suit for eviction Clause 13-A was not in force, but at the time of appeal such a clause is introduced, the tenant in appeal becomes entitled to its protection....
18. However, the Apex Court explained that the statutes do not affect existing rights as provisions of statutes providing for new remedies for enforcement of an existing rights will apply to future as well as past causes of action.
19. In Mohd Azizul Haq through LRs. v. Dilip Murlidhar Lohiya reported MANU/MH/1238/2008 : 2008 (6) Mh.L.J. 482 this Court, after considering earlier rulings, summed up in para 7 of the judgment delivered in CRA No. 654 of 1995, decided on 29.8.2008, which reads thus:
7. All these three judgments conclusively show that right of landlord which got eclipsed on account of Rent Control Legislation revives after the Rent Control Legislation is removed and the landlord therefore can prosecute his suit further under the General Law i.e. as per provisions of the Transfer of Property Act.
20. Learned Counsel for the appellant contended that the decision in MANU/MH/1238/2008 : (2008)(6) Mh.L.J.482 ignores Section 58(2) of the Maharashtra Rent Act which saved the pending proceedings under Repealed Act and Rent orders, while according to learned Advocate for respondent, Section 58(2) of the Maharashtra Rent act saved only those proceedings under C.P. and Berar Rent Control Order which were already pending. It does not provide for instituting of fresh proceeding for approaching Rent Controller under the old repealed Act and in the present case, no proceedings have ever been instituted under the C.P. and Berar Rent Control Order. The landlord, after the Maharashtra Rent Act came into force with effect from 31/3/2000, is not expected or is no longer required to institute any fresh proceedings under the Repealed Act to seek permission of the Rent Controller under the repealed Rent Act or to issue notice to quit or to seek eviction of the Tenant from 'open plot' of land governed under the Transfer of Property Act, 1882. Even considering that suit for possession was filed on 5.10.1988 and decided on 19.9.1992, in this case the tenant, in my opinion, can not be allowed to say that the proceedings under the repealed Act is still pending and is required to be decided under the Old repealed Acts because Section 58(2) of the Maharashtra Rent Act only stipulates enabling and deeming provision to facilitate disposal of pending proceedings. It does not contemplate fresh proceedings in accordance with provisions of Repealed Act. Legislative intention is, thus, clear. Learned Counsel for the appellant has also relied upon Section 7(c) of the Bombay General Clauses Act, 1904 about the effect of repeal to argue that unless a different intention appears, the repeal shall not affect any right, privilege, obligation, or liability acquired, accrued or incurred under any enactment so repealed. It is the same principle as stated in Section 6(c) of the General Clauses Act, 1897. If we peruse the ruling of Deelip v. Mohd. Azizul Haq MANU/SC/0181/2000 : (2000) 3 SCC 607 it appears that the matter was remitted to the High Court for a fresh consideration in accordance with law. The Bombay High Court decided Mohd. Aziz Ul Haq through L.Rs. Dr. Mohib S/o. Mohammad Aizul Haq and Ors. v. Dilip Murlidhar Lohiya MANU/MH/1238/2008 : 2008 (6) Mah.L.J.482 and considered effect of the Maharashtra Rent Act in respect of suit for recovery of 'open plot'; the protection which was available to tenant of the 'open plot' from 21.7.1989 was removed on 31.3.2000 as a result of repeal of existing rent control orders. Earlier the landlord of 'open plot' was required to approach the Rent Controller for permission to initiate recovery suit as the word 'House' was replaced by the word 'premises' with effect from 21.7.1989 and Clause 13A was added to the Rent Control Order on 26.10.1989. It was statutory disability of the Landlord of 'open plot' included in definition of 'premises' due to restriction introduced as above in the Rent Control Orders which was removed by the Maharashtra Rent Act, 1999 with effect from 31.3.2000. Thus, landlord became free to enforce his right under Section 106 of the Transfer of Property Act, 1882 and to terminate tenancy. Jurisdiction of the Civil Court to pass decree of eviction and execute it, is restored and hence, landlord can (after 31.3.2000) recover possession of 'open plot' by a suit in accordance with general law.
21. In the present case, when an open plot was let out, there was no necessity of the order of the Rent Controller for termination of tenancy. This appears to have been conceded by learned Advocate representing appellant before the lower appellate Court. Original landlord Anantagir had let out open plot to the defendant in or about 1957. The suit property was purchased under sale deed Exh.21. The defendant who was informed by the original vendor attorned in favour of the plaintiff by paying rent for April, 1981 and sending letter Exh.24. Since defendant did not pay rent to the plaintiff, notice to quit Under Section 106 of the Transfer of Property Act was issued on 1.4.1988 which was replied on 13.4.1988. On these facts, the lower Appellate Court found that the plaintiff and defendant have relationship as landlord and Tenant and tenancy of the defendant was validly terminated. The suit property was not a Trust property as alleged and no permission of the Rent Controller was necessary for termination of tenancy in view of the ruling in Mohd Azizul Haq v. State of Maharashtra and Anr. reported in 1997 (3) Mah. L.J. 847. The appeal was decided on 5th December, 1998 and the legal position stated was conceded. Thus, the decree passed by the trial Court was confirmed by the concurrent Judgment passed by the lower Appellate Court. Clause 4A and word 'premises' in Clause 13(1)(b) of the Central Provinces and Berar Letting of Premises and Rent Control Order, 1949 were inserted in the statute by notification/order No. BRA- 1086/462/D-XII, dated 27.06.1989, when the valid cause of action in respect of the 'open plot' of land under general law was already available to the plaintiff on the basis of notice to quit issued under Section 106 read with Section 111(h) of the Transfer of Property Act, 1882. Cause of action had already accrued on 1st May, 1988 in favour of the plaintiff, when Regular Civil Suit No. 758 of 1988 was instituted in the Court of Joint Civil Judge, Junior Division, Amravati on 3.10.1988. Eclipse upon the right of the Landlord to recover possession of 'open plot' under the Transfer of Property Act having been included in the word 'premises' governed under the C. P. and Berar Letting of Premises and Rent Control Order, 1949 began on 27.6.1989 and lasted till 31.3.2000 as the term 'house' was substituted by term 'premises' during that period to make it essential for landlord to approach Rent Controller for permission to terminate tenancy. When the legislature brought into force the Maharashtra Rent Control Act, 1999, provisions of new Rent Act gave option for the Landlord to continue with the proceedings before the Rent Controller under the old Repealed Rent Control Order if he so desires or to institute a fresh proceeding under the new Act or to recover 'open plot' of land not included in the definition of 'premises' under the new Maharashtra Rent Act, the landlord has remedy w.e.f. 31.3.2000 under the General Law i.e. Transfer of Property Act, 1882 to recover possession of open plot by approaching the competent Civil Court. Under this changed legal scenario, landlord of the 'open plot' cannot be compelled to start a fresh proceedings before the Rent Control Authority under the repealed Act to obtain permission to initiate legal proceedings against Tenant. In the present case, learned Counsel for the Appellant (defendant-tenant) could not point out any provision to urge that the landlord was restricted by the then prevalent Rent Control Order from exercising his right under the General Law and approaching the competent Civil Court on the basis of notice to quit issued under Section 106 of the Transfer of Property Act, 1992 at the time when the suit was instituted on 3.10.1988 in the trial Court. Therefore, the conclusions by the Courts below were based upon the evidence led, the admissions given and the settled position of law as then existing and conceded to. The Courts below, therefore, were right to hold that permission under the Rent Control Order was not necessary prior to the date before institution of suit in this case. Substantial question of law Nos. (iv) and (v) are answered accordingly. The Apex Court in Ram Kumar Agrawal and Anr. v. Thawardas through LRs. (1990) 7 SCC 303 held that, under Section 100 of the Code of Civil Procedure, the jurisdiction of the High Court is confined to hearing on substantial question of law and not to interfere with the findings of fact. Interference with findings of fact is not warranted if it involves re-appreciation of evidence.
22. As held in Roopsingh v. Ramsingh MANU/SC/0204/2000 : (2000) 3 SCC 708 : 2002 (10) SC 98 right of appeal is neither natural nor inherent. It is substantive statutory right regulated by law. High Court has no jurisdiction to interfere with pure questions of facts decided by the Courts below. For all these reasons, I do not find any perversity in the impugned Judgment and order. The Second Appeal is, therefore, dismissed with costs.
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