Before adverting to their contentions in detail, it must be borne in mind that the creation of tenancy is a matter governed by the provisions of Transfer of Property Act, 1882 and not by the Rent Act. It has been held by the Apex Court in Raizada Topandas and another v. M/s. Gorakhram Gokalchand, MANU/SC/0227/1963 : [1964]3SCR214 that the Rent Act does not create tenancy which is a matter of contract. Creation of tenancy must be established by a contract between the lessors (the plaintiffs) and the obstructionists in the present case. There has to be a privity of contract between the plaintiffs and the obstructionists. If there is no privity of contract between the landlord and the sub-lessees and where the landlord is the owner of the plot which has been let out to the lessee, who erects the structures and is the owner of the said structures and inducts licensees or sub-lessees the law recognises no independent right in the licensee or sub-lessee qua the landlord of the plot of land.
The Division Bench decision of this Court in S.R. Shetty's case make it clear that it would be almost impossible to accept the suggestion that the occupant of the structure would be entitled to claim tenancy in respect of the land underneath the structure. This would be all the more impossible where, in a multi-storied building, there are several tenants, one sitting on top of another and it would be impossible by any amount of ingenuity observed the Division Bench, for any Court to say on what portion of land, a particular occupant of the structure is a sub-tenant qua the land. There is thus no substance in the second contention of the petitioners.
IN THE HIGH COURT OF BOMBAY
The Division Bench decision of this Court in S.R. Shetty's case make it clear that it would be almost impossible to accept the suggestion that the occupant of the structure would be entitled to claim tenancy in respect of the land underneath the structure. This would be all the more impossible where, in a multi-storied building, there are several tenants, one sitting on top of another and it would be impossible by any amount of ingenuity observed the Division Bench, for any Court to say on what portion of land, a particular occupant of the structure is a sub-tenant qua the land. There is thus no substance in the second contention of the petitioners.
IN THE HIGH COURT OF BOMBAY
Writ Petition No. 2014, 2047, 2048, 2066 & 2093 of 1991
Decided On: 12.10.1999
Decided On: 13.10.1998
Ramkrishna Girishchandra Dode Vs. Anand Govind Kelkar and Ors.
Hon'ble Judges/Coram:
A.V. Savant, J.
Citation : AIR 1999 Bom 89
1. Heard all the learned Counsel; Shri B.P Apte, Addl. Advocate General, Shri A.K. Abhyankar, Shri S.M. Paranjape and Shri Vhatkar for the petitioners and Shri V.A. Thorat for the respondents.
2. Writ Petition No. 2014 of 1991 is by 8 obstructionists Nos. 90 to 98 for whom Shri S.M. Paranjape has appeared; Writ Petition No. 2047 of 1991 is by obstructionist No. 122 whereas Writ Petition No. 2048 is by obstructionist Nos. 124 and 125 for whom Shri A.K. Abhyankar is appearing. Writ Petition No. 2066 of 1991 is by 74 obstructionists for whom I have heard Shri B.P. Apte, Writ Petition No. 2093 of 1991 is by obstructionist No. 123 for whom Shri Vhatkar is appearing. The questions of law are common arising in more or less the same set or facts. The judgments and orders of the learned trial Judge as also by the Appellate Bench of the Court of Small Causes in the obstructionist proceedings were common. Hence, by consent, all matters are disposed of by this common judgment and order.
3. These petitions by obstructionists depict the usual scenario and the plight of the landlord decree holder while trying to execute the decree for eviction obtained by him under the provisions of the Bombay Rents Hotel and Lodging House Rates Control Act, 1947 (for short, "Rent Act"). The premises in dispute is a plot of land bearing City Survey No. 268 situated at Kelkarwadi, Kelkar Road,- Dadar, Mumbai belonging to one Gabriel M. Misquitta. He died on 4th March, 1924 leaving behind two children-son Dr. Francis Misquitta and daughter Rita Misquitta. On 10th October, 1924 Francis and Rita obtained probate of the Will of their father Gabriel. On 28th July, 1940 Francis and Rita executed a registered lease deed in favour of the original lessee Govind Ramchandra Kelkar. The lease was in respect of the said plot of land. It was for a period of 50 years commencing with 13th October, 1941. The lease rent was agreed at Rs. 1800/- per year for the first 25 years ending with 12th October, 1966 and for the next 25 years, it was agreed at Rs. 2400/- per year ending with 12th October, 1991. There is a clause in the lease deed that the lessee had specifically covenanted with the lessor that the lessee will not assign or let or part with possession of the said premises or erection and structure to be put up by the lessee thereon or interests therein without the consent of the lessor had first obtained.
4. On 6th October, 1967 the original lessee Govind Kelkar expired leaving behind a Will and appointing Francis Misquitta and original defendant No. 3 Manilal Kapadia as executors of his Will. On 5th November, 1968, notice under section 12 of the Rent Act was issued by both Francis and Rita Misquitta terminating the tenancy of defendant No. 1 Anand son of lessee Govind Kelkar. On 17th November, 1968 defendant No. 3 Manilal Kapadia gave a similar notice to defendant No. 1. In March, 1970 defendant No. 3 Kapadia was granted probate of the Will of the tenant Govind Kelkar who had expired on 6th October, 1967. This probate was subject to the rights of Francis Misquitta who was also one of the executors.
5. On 12th September, 1970 Suit No. 672/ 4547 of 1970 was filed by the two plaintiffs Francis and his sister Rita Misquitta against (1) Anand Govind Kelkar, (2) heirs and legal representatives of the deceased Govind Kelkar the original lessee and (3) Manilal Kapadia the executor of the Will of Govind Kelkar. In the plaint, the plaintiffs alleged that the lease deed was in respect of the plot of land and it was agreed between the parties that the lessee will not assign or part with possession of the land or erections or construction put up by the lessee or any interests therein without the consent of the lessors had first obtained. However, the plaintiffs averred that deceased lessee Govind Kelkar had, in breach of the conditions of the lease, parted with possession of the construction put up on the said plot of land without first obtaining prior consent of the landlords/ plaintiffs. It was further alleged that there was failure to pay the rent as agreed and there was also failure to pay the municipal taxes. The plaintiffs, therefore, averred that they had determined the tenancy as a result of the said breaches of the terms of lease namely parting with possession of the structures erected on the plot without obtaining the consent of the plaintiffs, failure to pay the rent and municipal taxes. The plaintiffs, therefore, prayed for decree in ejectment of the defendants in respect of the plot of land measuring 1500 sq. yards alongwith the constructions and structures standing thereon and the prayer was to direct the defendants to hand over vacant and peaceful possession of the premises.
6. Defendant No. 1 Anand Kelkar filed an affidavit on behalf of defendant Nos. 1 and 2. He stated that they did not claim any interest in the suit premises. He categorically stated that he had no interest whatsoever in the premises and that defendant Nos. 1 and 2 were not in possession of the premises and that the entire estate of the deceased tenant Govind Kelkar was looked after and managed by defendant No. 3. In the written statement filed by defendant No. 3 he denied the alleged breaches of the terms of the lease by the lessee.
7. On 3rd October, 1977 Bertha, wife of Francis Misquitta applied for her appointment as the Receiver of the property in dispute with power to collect rent from the licensees in respect of the structures. She alleged that there were arrears of rent payable by the deceased lessee and, therefore, she prayed for power to recover the rent due from the estate of the deceased. On 7th October, 1977 the Court of Small causes appointed Bertha as the Court Receiver.
8. At the trial of the said R.A.E. and R. Suit No. 672/4547 of 1970, evidence of Bertha w/o Francis was recorded. She deposed to the fact that deceased Govind Kelkar was the lessee under the lease deed dated 28th July, 1940. However, the rent of the premises had been in arrears since April 1966; the lease was in respect of the open plot of land but the deceased lessee had constructed some structures. Though the municipal taxes were payable in respect of the said structures erected by Govind Kelkar, no taxes were paid since 1963. Hence, tenancy was terminated and possession was prayed for. On the basis of the evidence of Bertha, the learned trial Judge decreed the suit of the plaintiffs. Since there was no challenge to the evidence of Bertha, the trial Court decreed the suit on 4th October, 1978 and directed the defendants to vacate the suit premises and deliver vacant possession to the plaintiffs on or before 7th November, 1978. Since arrears of rent and taxes were to the tune of Rs. 10,500/-, a decree was also passed directing the defendants to pay to the plaintiffs Rs. 10,500/ together with costs.
9. On 29th December, 1978 an agreement of sale was executed by Francis and his sister Rita Misquitta in favour of one Champalal Vardhan in respect of the land in dispute alongwith the structures standing thereon namely the tenements in respect of which obstructionists are claiming independent rights. The consideration in the said agreement for sale was Rs. 2,50,000/- out of which Rs. 25,000/- was paid as earnest money at the time of execution of the agreement. The vendors, Misquittas, had agreed to deliver possession of the suit property to Champalal Vardhan. The property described in the schedule to the said agreement was specifically referred to as the plot of land admeasuring 1500 sq. yards together with structures standing thereon. On 1st July, 1979, a power of attorney was executed by Francis and Rita Misquitta in favour of the said Champalal Vardhan. The power or attorney referred to an agreement of sale executed on 29th December, 1978 in his favour.
10. On 7th August, 1979 Francis Misquitta expired. Execution Application No. 301 of 1980 for executing the decree and obtaining possession was filed by Bertha widow of francis on 4th January, 1980. Warrant of possession was issued on 18th January, 1980 by the Court of Small Causes. On 30th January, 1980, bailiff returned the warrant of possession with his report that when he went to execute the decree at about 8 a.m. on 30th January, 1980, execution of the decree was obstructed by several obstructionists whose names he mentioned in the list annexed to his report. The list contains the names of 80 obstructionists.
11. On 13th February, 1980, Champalal Vardhan claiming under the agreement of sale dated 29th December, 1978 and power of attorney dated 1st July, 1979 executed in his favour by Francis and Rita Misquitta, took out obstructionist Notice No. 73 of 1980 in R.A.E. and R Suit No. 672 /4547 of 1970. On 22nd April, 1980 Rita Misquitta executed the conveyance in favour of Champalal Vardhan.
12. The learned trial Judge who heard the obstructionist notice, recorded evidence of some of the obstructionist. In the course of the obstructionist proceedings, an application was made by some of the obstructionists for permission to produce the rent receipts alleged to have been executed by Dr. Francis and Rita in their favour in respect of the tenements in question. The learned trial Judge by his reasoned order dated 24th February, 1987 held that the execution of the receipts by Francis and Rita was denied by Champalal Vardhan. Though Francis had expired on 7th August, 1979, Rita was alive during the tendency of the obstructionist proceedings before the trial Judge. However, neither Rita the sister of Francis nor Bertha widow of Francis was examined to prove the signatures on the alleged rent receipts which were held to be inadmissible and were, therefore, not exhibited in evidence. It was further held that none of the obstructionists had deposed that the rent receipts were signed by Francis or Rita in their presence and assuming that some of the obstructionists had said so, when the execution was denied it was incumbent upon the obstructionists to examine either Rita or Bertha none of whom was examined. The trial Judge also himself compared the signatures appearing on some of the rent receipts and expressed a doubt as to whether the receipts were signed by the persons purported to have signed them. In the result, by an order dated 24th February, 1987 the trial Judge rejected the application for exhibiting the said rent receipts in evidence in the obstructionist proceedings.
13. At the hearing of the obstructionist notice, the trial Judge considered the oral and documentary evidence on record in the light of his earlier order dated 24th February, 1987 rejecting the claim of the obstructionists for admitting the alleged rent receipts in evidence. He considered the other material on record such as ration card, counterfoils of cheques, copies of the Shops and Establishment Act licences, letters received by the obstructionists, electricity bills, extracts of bank accounts, copies of the assessment orders passed by income Tax and Sales Tax authorities, copies of the summonses received by the obstructionists at the addresses of their respective tenements in the suit plot. While there was no doubt that obstructionists were in actual physical possession of the tenements, the question was whether they had any independent right, status, interest or title in respect of the premises and whether they were claiming such right, status, interest or title independently of the judgment debtor. The learned Judge considered the entire material and the fact that neither Rita nor Bertha was examined by the obstructionists, though available. On a consideration of the entire documentary and oral evidence, he came to the conclusion that the obstructionists had failed to prove their independent right, status, title or interest in the tenements in their occupation and it was held that the obstruction which they had caused was at the instance of the judgment debtor. In this view of the matter, the obstructionist notice was made absolute on 1st June, 1987. In arriving at his conclusions, the learned trial Judge referred to some of the decisions of the Apex Court and of this Court to which I will make a reference.
14. Being aggrieved by the said judgment and order dated 1st June, 1987 making the obstructionist notice absolute, several appeals were filed by several obstructionists before the Appellate Bench of the Court of Small Causes. They were heard together and disposed of by a common judgment and order dated 30th and 31st January, 1991. The Appellate Bench framed the necessary points as to whether the obstructionists had proved their independent right to remain in possession of the tenements and the suit premises or whether the obstruction was caused by the obstructionists without any basis and at the instance and instigation of the judgment debtor. The Appellate Bench also considered the terms of the lease, evidence in the suit and in the obstructionist proceedings and the law laid down by the Apex Court and by this Court in several decisions dealing with the right of the obstructionist under Order XXI, Rule 97 of the Code of Civil Procedure with reference to the execution of the decree under the Rent Act. The Appellate Bench has also considered the issue as to whether the rent receipts produced by some of the obstructionists were admissible in evidence in the absence of either Rita of Bertha Misquitta being examined when the signatures on the said receipts were denied in the obstructionist proceedings. Having considered the entire material in the light of the several decisions on the made of proof of documentary evidence and in particular the nature of the right claimed by the obstructionists in such proceedings under the Rent Act, the Appellate Bench came to the conclusion that the obstructionists had failed to prove any independent right in respect of the premises in dispute. It was held that the Court Receiver Bertha Misquitta had no authority to create any tenancy while she was managing the property as a Court Receiver for the purpose of collection of rent. The possession of the property was never handed over to the plaintiffs and hence there was no question of attornment by virtue of the letter dated 15th / 19th November, 1978 issued by G.C.Gandhi, Advocate to one of the obstructionists. In this view of the matter, the Appellate Bench also came to the conclusion that the obstructionists had failed to establish any independent right and it was held that the obstruction was caused at the instance of the judgment debtor and hence the obstructionist notice was rightly made absolute by the trial Judge. In the result, all the appeals filed by the obstructionists were dismissed by the Appellate Bench on 30th / 31st January, 1991.
15. It is these concurrent findings of fact which are based on appreciation of oral and documentary evidence in the light of the legal position settled by decisions of the Apex Court and of this Court which are questioned before me in this batch of 5 petitions which are pending in this Court since 1991. I have heard the learned Counsel at great length.
16. Before adverting to their contentions in detail, it must be borne in mind that the creation of tenancy is a matter governed by the provisions of Transfer of Property Act, 1882 and not by the Rent Act. It has been held by the Apex Court in Raizada Topandas and another v. M/s. Gorakhram Gokalchand, MANU/SC/0227/1963 : [1964]3SCR214 that the Rent Act does not create tenancy which is a matter of contract. Creation of tenancy must be established by a contract between the lessors (the plaintiffs) and the obstructionists in the present case. There has to be a privity of contract between the plaintiffs and the obstructionists. If there is no privity of contract between the landlord and the sub-lessees and where the landlord is the owner of the plot which has been let out to the lessee, who erects the structures and is the owner of the said structures and inducts licensees or sub-lessees the law recognises no independent right in the licensee or sub-lessee qua the landlord of the plot of land. This position has been clearly recognised in a series of decisions to which I must make a brief reference.
17. As far back as on 21st November, 1962, a Division Bench of this Court in C.R.A. No. 1511 of 1960 of S.R. Shetty v. Phirozeshah Nusserwanji Colabawala and another, was considering the question of the right of the obstructionists in respect of the structures put up by the tenant of the plot belonging to landlord owner of the plot. Whatever right the obstructionists may have against the owner of the structures, it was held that it was almost impossible to accept the suggestion that after the structure is built and the sub-tenant has been inducted by the tenant, such a sub-tenant also becomes the sub-tenant of the land belonging to the landlord. The sub-tenant of the structure erected by the tenant had only right to occupy the said structure without any right to occupy the land on which the structure was erected. This was all the more so in a case where a multi-storeyed building is erected on a plot of land where it would be difficult to decide as to which subtenant of which structure had right to occupy the particular portion of the plot of land in dispute which was leased by the landlord to the tenant who had erected the super structure may be a multi storeyed structure. This view expressed by the Division Bench in S.R. Shetty v. Phirozeshah Nusserwanji Colabawala, was considered in a series of judgments rendered by this Court while dealing with the right of the obstructionists in the proceedings under the Rent Act.
18. In Damji Nansi v. Om Prakash Nathuram Gulathi and others, 1979 Bom. C.R. 670, P.B. Sawant, J., (as he then was) dealt with a case where the plot of land was leased by the original owner to the tenant for a period of 15 years. The structure was put up by the tenant and he had inducted a subtenant. It was held that the sub-tenant in respect of the structure had only a right qua the structure and not to the land underneath. A reference was made to the Division Bench decision in S.R. Shetty's case, namely C.R.A. No. 1511 of 1960 (supra) and the writ petition filed by the sub-tenant of the structure was dismissed.
19. In Dinkar S. Vaidya v. Ganpat S. Gore, MANU/MH/0316/1981 : AIR1981Bom190 , Sharad Manohar, J., had occasion to consider the issue at great length with reference to the doctrine of dual ownership which is recognised in this country. On consideration of the relevant provisions, this Court took the view the that sub-tenancy cannot be created without implied or express consent of the head lessor. Where there is an embargo upon the tenant from sub letting the land, it would be difficult to confer the status on the sub-tenant of the structure to be the tenant of the land beneath the structure. If the sub-tenants or even the tenants of the structures were deemed to be the tenants in respect of the land underneath the structures, such a position would be clearly illegal and recognition of the doctrine of dual ownership would be meaningless and futile. If there was no privity of contract or privity of estate between the owner of the land on the one hand and the tenant of the structure on the other, the tenant of the structure would have no right whatsoever qua the land beneath the structure. In respect of the structure, the tenant's right would be restricted to the person who recognises him as a tenant qua the structure namely the lessee of the plot of land. The premises let out by the owner of the land, namely the landlord of the suit land in the present case, to the tenant of the land namely Govind Kelkar is something different from the structures let out by the said Kelkar to the occupants of the structure viz the present obstructionists. Such a position is not unknown in this country where the concept of dual ownership is recognised. This Court therefore, refused to confer the status of a tenant under section 15-A of the Rent Act on those who had a right only qua the structure and not in respect of the land regarding which the landlord had obtained the decree for eviction against his lessee.
20. Similar view has been expressed by this Court in yet another decision in Mrs. Suman Damani and others v. Norman Joseph Pereira and others 1986 Mah RCJ 376. This Court S.J. Deshpande, J., was dealing with the decree passed by the High Court in favour of the landlord which was confirmed by the Apex Court in Jamnadas Dharamdas v. Dr. J. Joseph, MANU/SC/0472/1980 : [1980]3SCR1015 . However, the obstructionists were claiming the protection of the provisions of section 14 of the Rent Act. It was held that the plea of the obstructionists that they are entitled to the protection under the Rent Act on the ground that they were subtenants of the decree holder was rightly negatived in the earlier proceedings. S.J. Deshpande, J., further held that the obstructionists were occupying only structures which were not the subject matter of the dispute and it could not be said that the landlord was in any manner concerned with the said structures. The privity of contract was only between the original landlord owner of the plot and the lessee of the plot who had suffered a decree for eviction on account of breach of the terms of lease. It was, therefore, held that the sub-tenants were not entitled to claim protection under section 14 of the Rent Act. Relevant observations are to be found in para 17 of the judgment at pages 384-385. Then in para 23 of the judgment, S.J. Deshpande, J., held that where a lessee has been granted lease of the plot of land, even assuming that permission was given to him to build structures on the said plot of land, the landlord who had let out the land was not bound by the arrangement between his tenants and tenants' sub-tenant's in respect of the structures. The doctrine of dual ownership being applicable in such a case, it was held that the lessee was only the tenant of open land and since what was let out was only the plot of land there cannot be any creation of any interest in regard to the structure which interest could bind the landlord owner of the plot. The contentions of the obstructionists were therefore, rejected.
21. In Goregaon Malayalee Samaj v. M/s. Popatlal Prabhudas & Sons, MANU/MH/0403/1987 : 1988(1)BomCR358 , A.C. Agarwal, J., had occasion to consider the same question. Originally the tenancy was in respect of the land. The tenant of the land constructed structures thereon and inducted third parties. The question arose whether such a third party could become sub-tenant of the landlord in respect of the land beneath the structure and claim protection of the provisions of section 15A of the Rent Act. It was held that persons so inducted on the structures would be the tenants in respect of the super structure on the land only. Their status vis-a-vis the land is necessarily that of a licensee only and not any higher status. Where a decree is sought to be executed in respect of land which was subject matter of the original lease, the status of the tenants of the structure on the land was nothing more than that of mere licensees. The right of the occupants of the structures on the land was nothing more than that of a mere licensee. Such licence must necessarily come to an end when the landlord obtains a decree for eviction of his tenant and the occupants have got to be evicted from the land which could not be done unless they are also evicted from the structures which stand on the land. All subsidiary interests that would have been created by the original lessee of the land pursuant to the lease deed must necessarily come to an end unless the occupant was otherwise protected by the provisions of the Rent Act. On the question as to whether such an occupant would be protected by the provisions of section 15-A of the Rent Act, this Court gave the answer in the negative.
22. In Virji Nathuram and others v. Krishnakumar, MANU/MH/0249/1985 : AIR1985Bom429 , R.A. Jahagirdar, J., considered the same question. The petition was by the obstructionist who obstructed the execution of the decree obtained by the landlord on the ground of arrears of rent under section 12(3) of the Rent Act. Appeal was dismissed and when execution proceedings were taken out, the obstructionists obstructed the decree contending that though the lease was in respect of the land, they were lawfully inducted in the structures which were erected by the original judgment debtor under the express permission contained in the lease deed itself. The facts in Virji Nathuram's case are identical with the facts in the case before me. The obstructionists contended that they had become the legal tenants of the structures and hence they cannot be evicted in execution of the decree which was obtained by the landlord in respect of the open plot of land which was leased by him. The trial Court discharged the obstructionist notice holding that the obstructionist were entitled to remain as tenants of the structures and after removal of the original judgment debtor they would become the tenants of the plaintiff/landlord. This order was set aside by the Appellate Bench which held that the obstructionists had no right whatsoever qua the land as against the plaintiff/landlord. On a petition to this Court by the obstructionists, R.A. Jahagirdar, J., considered the decisions to which I have made a reference above, starting with the Division Bench decision dated 21st November, 1962 in S.R. Shetty's case (C.R.A. No. 1511 of 1960). Reference was made to the decision of P.B. Sawant, J., in Damji v. Omprakash (supra) as also to Dinkar Vaidya's case (supra). Similar arguments were advanced before R.A. Jahagirdar, J., as have been advanced before me by the Counsel for the petitioners/obstructionists. Rejecting the arguments of the obstructionists it was held that the original lessee has got to be evicted pursuant to the decree passed against him in the suit filed by the landlord. The original lessee has to be evicted from the entire land which was the subject matter of the lease. Though the original lessee was permitted to erect superstructure, persons so inducted in the superstructure would, at the most be tenants of the superstructure. However, vis-a-vis the land their position was that of a licensee only and no higher status. The correct legal position as stated by this Court was that on determination of the lease or other interests which are created in the land including the superstructure, interest if it can be so called, of the licensee has necessarily to come to an end. Decree of eviction of the lessee cannot be properly executed unless the status of the obstructionists as licensees of the land also came to an end. Since the obstructionists are liable to be evicted from the land naturally they were held to be liable to be evicted from the superstructure also. The obstructionists were held to have no right whatsoever to remain in possession of the superstructure. All subsidiary interests which were created, even if legal by the original lessee pursuant to the lease must necessarily come to an end.
23. I must now make a reference to the judgment of the Apex Court which sets at rest the entire controversy and to which a reference has been made in some of the decisions of this Court referred to above. In Jamnadas Dharamdas v. Dr. J. Josheph, MANU/SC/0472/1980 : [1980]3SCR1015 the Apex Court considered identical situation where the obstructionists were claiming protection after the tenant had suffered a decree for eviction under section 12(3) of the Rent Act. On consideration of some of its earlier decisions, Apex Court held in para 18 of the judgment at page 1610 that the landlord was entitled to claim relief of possession of his land and in effect the decree for possession of the land would mean that the land should be delivered to him without structures. The tenant had committed defaults in payment of rent. Reference was made by the Apex Court to the decision of this Court in Ramchandra Raghunath Shirgaonkar v. Vishnu Balaji Hindalekar A.I.R. 1920 Bom. 87 where it was held that ordinary rule of law is that tenant must give up vacant possession of the land demised at the end of the term and that if he builds on the land of the tenancy, he builds at his own risks. At the end of the term, he can take away his building but if he leaves it there it becomes the landlord's property. A reference was also made to another decision on this Court in Khimjee Thakersee v. Pioneer Fibre Co. Ltd., MANU/MH/0169/1940 : AIR1941Bom337 where it was held that on determination of the lease the lessees were required to deliver over possession of the demised premises to the lessors and the lessees were entitled to remove the structures which they might have erected during the continuance of the tenancy. In para 21, the Apex Court concluded that the plaintiff was entitled to ask for relief as to the possession of the land and he was also entitled to ask for demolition of the structures and for grant of vacant possession of the plots.
24. In the light of the above legal position, I will consider the contentions raised by the petitioners. The first contention is that, in the facts of this case, since the lessee of the plot Kelkar was permitted to put up or erect structures, the licensees of the structures inducted by the lessee Kelkar were also entitled to become the tenants of the land underneath the structures. Reliance was placed on the observations of a learned Single Judge Bhasme, J., in Mangharam. Chubarmal v. B.C. Patel, 73 Bombay Law Reporter 140 where it was held that in a suit against the tenant, if other persons are joined on the allegation that they are sub-tenants and if eviction is sought only on the grounds which are personal to the tenant (sections 13(1)(a), (b), (c), (d) and (e) of the Rent Act) then decree in ejectment against him will result in conferring the direct tenancy rights on the lawful sub tenant. It was further held that if sub-tenants are not impleaded in such a suit, then the landlord, after obtaining the decree against the tenant, will have to file a fresh suit against the sub-tenants who had by then became his direct tenant by virtue of section 14 of the Rent Act. This view expressed by Bhasme, J., need not detain me any longer since it is contrary to the earlier Division Bench decision of this Court in S.R. Shetty's case (C.R.A. No. 1511 of 1960 decided on 21st November, 1962). The view expressed by Bhasme J., has also been dissented by P.B. Sawant, J., in Damji Nansi's case 1979 Bom. C.R. 670 by Sharad Manohar, J., in Dinkar Vaidya's case, MANU/MH/0316/1981 : AIR1981Bom190 , by S.J. Deshpande, J., in Mrs. Suman Damani's case 1986 Man. R.C. J. 376 Agarwal, J., in Goregaon Malayalee Samj's case 1987 Mah. R.C. J. 701. More over in view of the decision of the Apex Court in Jamnadas Dharamdas v. Dr. J. Joseph, MANU/SC/0472/1980 : [1980]3SCR1015 , with respect it is not possible for me to agree with the view expressed by Bhasme, J., that the sub-tenants or licensees of the structures inducted in the structures by the lessee of the plot will still be entitled to claim protection of the provisions of section 14 or 15-A of the Rent Act despite the decree for eviction being passed against the tenants under the provisions of the Rent Act. There is thus no substance in the first contention advanced on behalf of the obstructionists.
25. The second contention of the petitioners is that tenancy in their favour was validly created by Bertha wife of Francis who was appointed as a Court Receiver on 7th October, 1977 and Was authorised to collect the rent. In this behalf it must be remembered that what is alleged is that Bertha created a fresh tenancy in favour of the obstructionists consequent upon the termination of the tenancy of the lessee Kelkar. In the landlords' suit, decree for eviction has been passed on 4th October 1978. There is obviously no question of tenancy being created by Bertha in respect of the structures or land so as to bind the landlords pending the suit for eviction against the tenants. As far as Receiver's position is concerned, it is well settled that a Receiver appointed under Order 40, Rule 1 of the Code of Civil Procedure during the pendency of the suit cannot create tenancy in favour of a third party to enable him to claim protection of the provisions of the Rent Act. In Radheshyam Hardeo Nimodiya v. Court Receiver High Court, Bombay and others, MANU/MH/0622/1992 : 1993(2)BomCR137 a Division Bench of this Court held that if the Court Receiver, was not expressly authorised to create tenancy in favour of a third party, it was obvious that no right could be created in a property pendente lite which would defeat the ends of justice and incapacitate the Court from giving relief in accordance with the decree of final order that may be passed. It was, therefore, held that the occupant Could be summarily evicted. The relevant observations are to be found in paras 5 and 6 of the judgment at page 140. Similar view has been expressed by a Full Bench of Madras High Court in Arumugha Gounder v. Ardhanari Mudaliar and others, MANU/TN/0203/1975 : AIR1975Mad231 where it has been held that the tenant put into possession of land and incidental immovable property by a Receiver appointed by the Court pending a suit would not be entitled to the protection under the Tamil Nadu Cultivating Tenants Protection Act (25 of 1955). A reference was made to the maxim "Actus Curiae Neminem Gravabit" that is to say, an act in law shall prejudice no man, and it was held that the act of the Court Receiver done on behalf of the Court is done pendente lite and any one who gets possession through such act can only do so subject to the directions and orders of Court. Relevant observation is to be found in para 6 of the Full Bench judgment at page 234. This Full Bench decision of Madras High Court was relied upon by a Single Judge of this Court in Aboobakar Abdulrehman & Co. v. Shreeji Properties, MANU/MH/0042/1993 : AIR1993Bom265 where a similar view has been expressed that the person inducted by the Court Receiver can claim no protection under the provisions of the Rent Act. I may also mention that the view expressed by Full Bench of Madras High Court in Arumugha Gounder's case has been approved by the Apex Court in Krishna Kumar Khemka v. Grindlays Bank, P.L.C. and others, MANU/SC/0200/1991 : [1990]2SCR961 . In para 16 of the judgment at page 907 of A.I.R. it has been observed as under:
16. Similarly as observed in Arumugha Gounder's case any such act of the Receiver done on behalf of the Court pendente lite and anyone who gets possession through such an act could only do so subject to the directions and orders of the Court. If we apply the above principles to the case of Tatas the tenancy created in their favour by the Receiver is in violation and contrary to the injunction order and such an act is subject to the directions and order of the Court appointing the Receiver. Therefore, the tenancy created in favour of the Tatas was in breach of the order of the Court and consequently the Tatas cannot claim any protection under the provisions of the Act and they are liable to be evicted. In the counter affidavit filed on their behalf, it is no doubt stated that they were inducted into possession and even sending the cheques. The case of the appellant is that cheques were never encashed. In any event as observed above, the new tenancy created in their favour contrary to the orders of the Court does not create a right and is liable to be cancelled. Consequently the provisions of the Act cannot be invoked by them. The appeal is, therefore, dismissed as against respondent No. 1 Grindlays and allowed as against respondent No. 2 Tatas. In the circumstances of the case, parties are directed to bear their own costs.
26. In the light of the above, it is difficult to accept the second contention of the petitioners. In my view, on the final decision of the suit, the Receiver's appointment came to an end between the parties, and though the Receiver was answerable to the Court, his acceptance of the rent from the obstructionists in the facts of this case, would not amount to creation of a fresh tenancy. The decision of the Apex Court in Hiralal Patni v. Loonkaran Sethiya and others, MANU/SC/0015/1961 : [1962]1SCR868 , on which the petitioners have placed reliance does not advance their case. There can be no doubt that if a Receiver is appointed in a suit without his tenure being expressly defined, he will continue to be the Receiver till he is discharged. What was sought to be contended by the petitioners is that Bertha Misquitta was appointed as Receiver on 7-10-1977 and the suit was disposed of on 4-10-1978. In the absence of a specific order of discharge of the Receiver, though the Receiver may continue to accept the rent, in my view this would not confer the status of tenancy on the obstructionists. In view of the limited nature of the right of a person inducted by the Court Receiver, as discussed in the judgments in the last para, it is not possible to accept the contention of the petitioners.
27. Similarly, there is nothing in the decision of the Apex Court in Kanhaiyalal v. Dr. D.R Banaji and others, MANU/SC/0002/1958 : [1959]1SCR333 , to support the contention that the acceptance of rent by Bertha confers the status of tenancy on the obstructionists. Bertha had no right either under the provisions of the Transfer of Property Act or the order of her appointment as a Court Receiver to induct anyone as a tenant or to create rights in the occupants of the structures so as to bind the landlords. Under the lease, as well as under the decree dated 04-10-1978, the landlords plaintiffs were entitled to obtain vacant possession of the land. The right of the plaintiffs to obtain vacant possession of the land is clearly recognised in a series of decisions of this Court to which I have made a reference in the earlier paras as also the decision of the Apex Court in the case of Jamnadas Dharamdas v. Dr. J. Joseph, MANU/SC/0472/1980 : [1980]3SCR1015 . The Division Bench decision of this Court in S.R. Shetty's case make it clear that it would be almost impossible to accept the suggestion that the occupant of the structure would be entitled to claim tenancy in respect of the land underneath the structure. This would be all the more impossible where, in a multi-storied building, there are several tenants, one sitting on top of another and it would be impossible by any amount of ingenuity observed the Division Bench, for any Court to say oh what portion of land, a particular occupant of the structure is a sub-tenant qua the land. There is thus no substance in the second contention of the petitioners.
28. The third contention that is advanced is on the basis of the letter dated 15/19th November 1978, which is referred to as a letter of attornment, at Exhibit- 35, in the obstructionist proceedings. It would be necessary to reproduce the contents of the letter since an argument was advanced on behalf of the petitioners on the basis of this letter :-
"15th/19th Nov. 1978
"From : Dr. Francis Misquitta,
Miss Misquitta,
Peace Bhavan, 5th Kathewadi Lane,
Bombay No. 4.
To
Shri Hari Pandurang Tik,
Tenant/Occupant, Kelkar Wadi,
N.C. Kelkar Road, Dadar,
Bombay 28.
Dear Sir/Madam,
Please note that Dr. Francis Misquitta and Miss Rita Misquitta have succeeded in obtaining possession of land with structures in which you are occupants/tenants.
Your have therefore to pay the rent to them. Please also note that they are not interested in charging any amount in case of Standard Rent and permitted increase.
Yours faithfully,
Sd/-
T.C. GANDHI"
In the first place, this letter is not addressed by the landlords to each and every obstructionist. What is produced is a single instance; letter signed by Advocate Shri T.C. Gandhi to one of the obstructionists viz. Hari Pandurant of Tik. The contents of the letter have not been proved and the statement that the plaintiffs had succeeded in obtaining possession of the land is factually incorrect- Admittedly, the plaintiffs have not yet obtained the possession of the land with the structures, though decree was passed on the 4th October 1978.
29. Secondly, it is difficult to accept the argument of attornment based on this letter. "Attornment" has been defined in Black's Law Dictionary as under :-
"Attornment" is the act of a person who holds a leasehold interest in land, or estate for life or years, by which he agrees to become the tenant of a stranger who has acquired the fee in the land, or the remainder or reversion, or the right to the rent or services by which the tenant holds. It is an act by which a tenant acknowledges his obligation to a new landlord".
The Apex Court had occasion to consider the meaning of the word "attornment" in Uppalapati Veera Venkata Satyanarayanaraju and another v. Josyula Hanumayamma and anothers, MANU/SC/0343/1961 : [1962]3SCR910 . At page 179 of A.I.R. in para 14, a reference is made to Foa's General Law of Landlord and Tenant and it has been observed that "Attornment" in its strict sense, is an agreement of the tenant to a grant of the reversion made by the landlord to another, or, as it has been defined, the act of the tenants putting one person in the place of another as his landlord. See paragraph 732, Foa's General Law of Landlord and Tenant. In para 15, at page 179 of A.I.R. relying upon para 745 in Foa's General Law of Landlord and Tenant, it has been observed that "Attornment" has been described as one mode of recognising a person as one's landlord, just as payment of rent is another mode for the purpose. If this be the true meaning of the word "attornment", it is difficult to accept as to now the letter at Exhibit-35 reproduced above can be considered as an "attornment of tenancy" of the obstructionists by the landlords. As stated earlier, only a single letter has been produced, purported to have been signed by Advocate T.C. Gandhi, who has not been examined, so as to prove the document. The contents of the letter are factually incorrect and having regard to the definition of the word "Attornment", as interpreted by the Apex Court in Uppalapati Veera Venkata's case, it is not possible for me to accept that there was any attornment of any tenancy by the landlord. There is, therefore, no substance in this contention.
30. The fourth contention raised on behalf of the petitioner is about the admissibility of the rent receipts in respect of which the learned trial Judge passed an order on 24th February, 1987 refusing to admit the said receipts in evidence. Admittedly, Champalal Vardhan has not admitted the said receipts and has denied that the said receipts were signed by either Francis or Rita. Francis had expired on 7-8-1979, before the obstructionist notice was taken out on 13-2-1980. Francis' sister one of the landlords- Rita was alive till 2nd July 1988. Neither Rita nor Bertha, widow of Francis, who is alleged to have signed some of the receipts, has been examined in the obstructionist proceedings. Though Bertha was examined in the suit, she has not been examined in the obstructionist proceedings. Under section 67 of the Indian Evidence Act, "if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting". Despite Champalal Vardhan having denied the execution and correctness of the said receipts, no attempt was made by any of the obstructionists to examine either Rita or Bertha. Both the Courts below have placed reliance on a Division Bench decision of this Court in the matter of {Mr. D and Mr. S. Advocates}(tm) : 68, Bom.L.R., 228. This Court considered the scheme of the provisions of the Evidence Act. One 'D' had identified the signature of 'A' to -a typewritten document on the basis of his acquaintance with A's handwriting. It was sought to be urged by D that he had proved not only A's signature to the document but also its contents. A had not deposed to the truthfulness of other contents of the documents. It was held by the Division Bench that what was formally proved was the signature of 'A' and not the writing of the body of the document and that even if the entire document was held formally proved that did not amount to a proof of the truth of the contents of the document. The relevant observations are to be found to pages 232/233 of the Report as under :
"To conclude this part of the discussion, we hold, in the first place, that what has been formally proved is the signature of Abreo and not the writing of the body of the document at Exh. 28 and secondly, that even if the entire document is held formally proved, that does not amount to a proof of the truth of the contents of the document. The only person competent to give evidence on the truthfulness of the contents of the document was Abreo."
31. I may also refer to the decision of Vimadalal, J., In Bhima Tima Dhotre v. The Pioneer Chemical Co., 70, Bom.L.R., 683. Interpreting the relevant provisions of the Indian Evidence Act, when a hand-written post-card was sought to be admitted in evidence as the same was duly proved by the evidence of a witness who had deposed to its handwriting as well as signature, it was held that the post-card could not be admitted in evidence. It was held that the proof of a document does not amount to a proof of the truth or the correctness of its contents or that the proof of the document is no guarantee for the truth or correctness of its contents.
32. Again, in Prakash Cotton Mills Put Ltd. v. Municipal Commissioner For Greater Bombay and others 1982, Mah LJ 840, R.A. Jahagirdar, J., took similar view. This was a case where the Additional Chief Judge of Small Causes Court disallowed the exhibition of sale deed, the execution of which was not proved by examining the executant, but the proof of the signature of the executant only was offered, but that itself could not prove the contents of the sale-deed or the truth of its contents and the trial Judge on that ground refused to exhibit the sale-deed, which order was challenged before this Court. It was held that in the light of the law laid down by the Apex Court in Bishivanath Rai v. Sachhidanand Singh, MANU/SC/0448/1971 : AIR1971SC1949 the correctness of the contents can only be proved by examining the writer. Hence, no interference was called for with the order of the learned trial Judge refusing to exhibit the document in evidence.
33. In this behalf, the respondents place reliance on the fact that the Order dated 24-2-1987, which was passed during the pendency of the obstructionist proceedings was neither challenged in appeal nor in a writ petition during the pendency of the obstructionist proceedings. I am assuming that this was not done on the ground that it was an interlocutory order. A challenge was raised in the appeals filed against the final Order dated 1st June 1987 making the Obstructionist Notice No. 73 of 1980 absolute. The Appellate Bench has examined this contention and the correctness of the order passed by the trial Judge on 24-2-1987. The Appellate Bench has held, as was held by the trial Judge, that none of the executants of the rent receipts was examined. Neither Rita Misquitta nor Bertha Misquitta, both of whom were available during the obstructionist proceedings, was examined. Champalal Vardhan had specifically denied the signatures on the rent receipts to be those of either of the Misquitta. Despite this specific assertion being made in evidence of Champalal Vardhan and despite ample opportunities being available to the obstructionists during the subsequent stages of the obstructionist proceedings, no efforts were made to lead the evidence of any of the executants, who were available to prove the rent receipts. Reliance has been placed by the two courts on the Division Bench Judgment of this Court, to which I have made a reference in para 30 above. What was relied upon by the petitioners was the Judgment of a learned Single Judge of the Calcutta High Court in (Abdul Samad and another v. Gunendra Krishna Roy and another) A.I.R. 1927 Cal 452, to which a reference is made in the order passed by the Appellate Bench. A perusal of the decision in Abdul Samad's case would show that the document viz. dakhilas were produced in the trial Court by the defendant. They were spoken to by the witnesses examined on behalf of the defendant and they were marked as Exhibits in the case without any objection on the side of the plaintiffs. It was in these circumstances that the Calcutta High Court had permitted the documents to be proved in evidence. I do not think, with respect, that the ratio of this decision in Abdul Samad's case has any application to the facts of the present case in the light of the facts stated hereinabove.
34. Reliance was also placed on the decision of the Apex Court in Dattatraya v. Rangnath Gopalrao Kawathekar dead by his legal representative and others, MANU/SC/0588/1971 : AIR1971SC2548 , where it has been observed in para 5 of the Judgment at page 2549 as under :
"What facts and circumstances have to be established to prove the execution of a document depend on the pleas put forward. If the only plea taken is that the executant has not signed the document and that the document is a forgery, party seeking to prove the execution of a document need not adduce evidence to show that the party who signed the document knew the contents of the document. Ordinarily on one is expected to sign a document without knowing its contents but if it is pleaded that the party who signed the document did not know the contents of the document, then it may in certain circumstances be necessary for the party seeking to prove the document to place material before the Court to satisfy it that the party who signed the document had the knowledge of its contents".
Similarly, the petitioners placed reliance on the observations of the Apex Court in the case of S. Gopal Reddy v. State of A. P., MANU/SC/0550/1996 : 1996CriLJ3237 , where it has been observed that the evidence of an expert is a rather weak type of evidence and the courts do not generally consider it as offering 'conclusive' proof and, therefore, safe to rely upon the same without seeking independent and reliable corroboration. Moreover, section 67 of the Evidence Act enjoins that before a document can be looked into, it has to be proved. Section 67 of course, does not prescribe any particular mode of proof. Section 47 of the Evidence Act which occurs in the chapter relating to "relevancy of facts" provides that the opinion of a person who is acquainted with the handwriting of a particular person is a relevant fact.
35. Reliance was also placed by the petitioners on the observations of the Apex Court in the case of Ajit Savant Majagvai v. State of Karnataka, MANU/SC/0822/1997 : 1997CriLJ3964 , where it has been observed that section 73 of the Evidence Act does not specify by whom the comparison shall be made. However, looking to the other provisions of the Act, it is clear that such comparison may either be made by the hand writing expert under section 45 or by any one familiar with the hand writing of the person concerned as provided by section 47 or by the Court itself. It has further been observed that, as a matter of extreme caution and judicial sobriety the Court should not normally take upon itself the responsibility of comparing the disputed signature with that of the admitted signature or handwriting and in the event of the slightest doubt, leave the matter to the wisdom of experts. But this does not mean that the Court has not the power to compare the disputed signature with the admitted signature as this power is clearly available under section 73 of the Act. While there can be no doubt about the propositions laid down in each of the three decisions referred to above, the moot question is whether the rent receipts ought to have been exhibited and can be looked at in the absence of their being admitted in evidence. As stated earlier, Champalal Vardhan has denied the signatures on the rent receipts to be those of either of the Misquitta viz. the two plaintiffs. Neither Rita nor Bertha was examined during the obstructionist proceedings. In this view of the matter, it is difficult to find fault with the orders refusing to admit the rent receipts. There is thus no merits in this contention.
36. The fifth contention of the petitioners is that Bertha Misquitta was not competent to file application for execution under Order XXI, Rule 11 C.P.C. Sub-Rule (2) of Rule 11 of Order XXI requires that every application for execution of a decree shall be in writing signed and verified by the applicant or by some other person who, to the satisfaction of the Court, is acquainted 'with the facts of the case. The emphasis of the petitioners is on the words "acquainted with the facts of the case". It is their case that Bertha was only appointed as a Court Receiver and was not acquainted with the facts of the case and therefore could not have filed execution proceedings No. 3 of 1990 on 4-01-1980 for execution of the decree dated 4-10-1978. The contention has no merit. Firstly, Bertha, widow of Francis was admittedly appointed as a Court Receiver by the Order dated 7-10-1977. Secondly, she had deposed on behalf of the plaintiffs at the trial of the suit for eviction. It was on her evidence that the suit has been decreed on 4-10-1978. It is, therefore, difficult to accept the contention of the petitioners that Bertha was not acquainted with the acts of the case within the meaning of Order XXI, Rule 11, sub-Rule (2) of the C.P.C. The contention is rejected.
37. The sixth contention of the petitioners was that as far as the obstructionist proceedings are concerned. Champalal Vardhan could not have taken out the obstructionist proceedings. Obstructionist Notice No. 73 of 1980 was taken out by Champalal on 13th February 1980. There was an Agreement of Sale dated 29th December 1978 by the Misquitta in favour of Champalal. It was followed by a power of attorney dated 1st July 1979 and Conveyance dated 22nd April 1980. In the Agreement of Sale dated 29th December 1978, there is a specific reference to the decree dated 4-10-1978 obtained by the landlords in the eviction suit against the tenant Kelkar. In the Sale-Deed dated 22nd April 1980 also there is a reference to the decree obtained by the vendors landlords in the eviction suit against the tenant-Kelkar. The Sale-Deed contains a specific recital as under :--
"Vendor as such sole surviving Executor and Trustee as aforesaid doth hereby grant, convey and transfer unto the Purchaser for ever all that the said piece or parcel of land or ground together with the Decree obtained in RAE & R._Suit_No. 672/4547/ 197 and situate lying and being at_N.C._Kelkar Road_. Dadar, and more particularly described in the Schedule hereunder".
Champala has been examined in the obstructionist proceedings. I have perused his evidence, which has been appreciated by the two courts below and has been accepted. In this view of the matter, it is not possible to accept the contention of the petitioners that Champalal was not competent to take out the obstructionist proceedings. The contention is rejected.
38. The seventh and the last contention was that the decree obtained on the 4th October 1978 in the eviction suit was itself a nullity inasmuch as the estate of the deceased tenant Kelkar was not properly represented in the eviction suit. This contention has not been raised in the obstructionist proceedings in any of the two courts, nor has it has been raised in the writ petition. It is for the first time in the course of arguments before me that the petitioners have sought to raise this contention and hence. I decline to consider the same. Suffice it to say that in the eviction proceedings, the estate of the deceased tenant was adequately represented. As far as defendants No. 1 and 2 in the suit are concerned, Anand son of the tenant Govind Kelkar has filed his affidavit on behalf of himself and defendant No. 2 heirs of deceased tenant. Even Manilal Kapadia, one of the executors of the Will of Govind Kelkar was defendant No. 3 in the suit. He filed his written statement in the proceedings for eviction. In the circumstances, there is no substance in the belated submission of the petitioners that the decree was a nullity.
39. In the circumstances, I do not find any merit in any of the seven contentions raised by the petitioners.
40. As stated earlier, the suit for eviction was filed as far back as on 12th September 1970, and the written statement was filed on 11th March 1971. Bertha w/o Francis was appointed as Receiver on 7th October, 1977. The suit was decreed on 4th October 1978. The landlords Misquit as executed the agreement of sale in favour of Champalal on 29th December 1978. On 1st July 1979 they executed a power of attorney in his favour. Misquitta expired on 7th August 1979. Bertha Misquitta applied for execution on 4-1-1980 and the warrant for possession was issued on 18-1-1980. The bailiff made a report of the obstruction on 30th January 1980 and therefore obstructionist notice was taken on Champalal on 13th February 1980. Conveyance was executed in favour of Vardhan and Company on 22nd April 1980. Obstructionist Notice taken out by Champalal was made absolute on 1st July 1987. During the pendency of the said proceedings, however, an order was passed on 24th February 1987 refusing to admit the rent receipts in evidence relying upon certain decisions of this Court. Individual appeals were filed by the obstructionists against the final order dated 1st July 1997 which were dismissed on 30-31-011991.
41. The two courts below have considered the entire material that were placed before them. Necessary issues and points were framed. The evidence has been properly appreciated. The law laid down by the Apex Court and in several decisions of this Court in obstructionist proceedings on identical facts has been correctly applied by the two courts below. It is not uncommon that where a landlord makes a lease of a plot of land with permission to put up structure and to induct a third party the person so inducted in the said structure like the obstructionists in the present case, seek the protection of the provisions of the Bombay Rent Act. The consistent view taken by this Court right from S.R. Shetty's case, C.R.A. No. 1511 of 1960, decided on 21st November, 1962, was upheld by the Apex Court in Jamnadas Dharamdas v. Dr. J. Joseph, MANU/SC/0472/1980 : [1980]3SCR1015 . There is a long line of decisions of this Court considering similar pleas of obstructionists which have been negatived all along. The concept of dual ownership one of the land and the other of the structure on the land has been recognised by several decisions of this Court. The consistent view taken by this Court is that where the landlord gets a decree for eviction of a plot of land against a tenant, the licensee or a sub-tenant inducted by the tenant on the structure put by him has no right against the landlord. If, therefore the landlord is entitled to get vacant possession of the land, he is entitled to evict the occupant in the said structure erected by the tenant, inasmuch as the occupant of the structure has no legal right against the landlord in so far as the land is concerned. The land must be put in possession of the landlord, free from any encumbrance whatsoever. There is neither any error of law or of jurisdiction in the two judgment and orders that are challenged before me. The appreciation of evidence is satisfactory and, can by no stretch of imagination be termed as perverse in a petition under Article 227 of the Constitution of India. It is not possible to disturb the said concurrent findings. The petition must, therefore, fail. Accordingly, Rule in all the petitions is discharged.
42. At this stage, Shri Gole appearing on behalf of the petitioners, prays for eight weeks time to vacate. Since the obstructionists are in possession of the tenements for quite some time, despite the concurrent findings, it would be only fair if they are granted eight weeks time to vacate the premises as prayed by them. Shri Naik for the respondents has no objection, subject to the usual undertakings which are to be filed by the petitioners in such obstructionist proceedings.
43. Hence, I pass the following order :
(I) Rule in all the five writ petitions is discharged with no order as to costs.
(II) The petitioners are granted eight weeks' time to vacate the premises, subject to the following condition that the petitioners and all adult members who are in possession of the structures today will file undertakings in this Court within a month from today disclosing the names and ages of all those who are in possession. Such undertakings to contain a specific clause that they will not create any third party interests or alienate or part with possession of the said structures or part thereof to any third party and that they will vacate and hand over peaceful possession thereof to the respondents after expiry of eight weeks.
44. In the event of the undertakings as above being filed within a month from today, decree dated 4th October, 1978 for eviction will not be executed for eight weeks. However, in the event of the petitioners' failure to file the undertakings as above the said decree dated 4th October, 1978 for eviction will be executed on expiry of one month from today.
45. Petitions rejected.
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