Whether suit is tenable before rent court if there is disclaimer of title by tenant prior to filing of suit?

It is thus every clear, upon the observations of the Supreme Court, that in a situation where a landlord seeks recovery of possession of any premises, the relationship of landlord and tenant is a sine qua non for the attractability of the provisions of Section 28 of the Act. If such a condition is not fulfilled, Section 28 is out of the way and it is open to the owner of the property to recover possession of the premises de hors the provisions of the Bombay Rent Act.

39. On the facts of this case, it will have to be inferred that as a result of the disclaimer, which disclaimer as found by us was much prior to the suit, the tenancy, if any, of defendants 3 and 4 came to an end. At' the time of the suit or even prior thereto there did not exist any relationship of landlord and tenant between the plaintiff and defendants 3 and 4, Defendants 3 and 4 in their written statement categorically took up the position that there never existed any relationship of landlord and tenant between them and the plaintiff. Defendants 3 and 4, on the contrary, claimed the tenancy from defendants 1 and 2, who, having regard to the findings made by us, have been proved to be trespassers on the suit premises. In these circumstances, it will have to be held that the defendants were not entitled to invoke the provisions of the Bombay Rent Act and that the bar of the jurisdiction of the Civil Court postulated by Section 28 of the Bombay Rent Act did not and does not apply to the facts of the case.

IN THE HIGH COURT OF BOMBAY

A.F.O.D. Nos. 267 and 270 of 1969

Decided On: 04.04.1977

 Ratanlal Manikchand Shah Vs. Chanbasappa Sanganbasappa Chincholi and Ors.

Hon'ble Judges/Coram:

D.B. Deshpande and P.R. Mridul, JJ.

Citation:AIR 1978 Bom216,1978 BomCR 483

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Whether tenant who disclaims his tenancy is entitled to get benefit of provision of rent Act?

"The effect of such a disclaimer, in our opinion, is that it brings to an end the relationship of landlord and tenant; the cessation being by operation of law resulting from proprio motu (a voluntary act) of the tenant. We do not see any reason to imply in favour of such a tenant the sprouting of a statutory tenancy or the operation of the restrictive provisions of the Bombay Rent Act in his favour. Similarly, statutory tenancies can also be disclaimed so as to render inapplicable the provisions of the Bombay Rent Act. A tenant disclaims the title of his landlord who accepts such disclaimer and seeks eviction upon the basis thereof. The voluntary action of the tenant and its acceptance by the landlord results in a bilateral determination of the tenancy and takes the case out of the pale of S. 5(ll) of the Bombay Rent Act. Statutory protection under the Act is to a tenant who claims to be a tenant and who is ready and willing to abide by the terms of the tenancy. A tenant who disclaims his tenancy does not fulfil the aforesaid qualifications. A tenant disclaiming the title of the claimant landlord and his relationship of tenancy literally knocks out the very bottom of statutory protection. This amounts to disclaiming the benefits available under the Bombay Rent Act. We are firmly of the view that it is open to a person to bring about by his own voluntary actions a situation which results in the cessation of relationship of landlord and tenant so as to render the provisions of the Bombay Rent Act inapplicable to the facts of his case. In such cases the dispute between the claimant owner and the occupant ceases to be a dispute between a landlord and a tenant in regard to any matter covered by the Bombay Rent Act. It becomes a dispute of titles and falls outside the purview of S. 28 of the Bombay Rent Act. In our opinion, the Bombay Rent Act does postulate an exercise in futility where a plaintiff is driven to the Rent Court even though the defendants do not accept him as their landlord."

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 3722 of 1986

Decided On: 17.01.1991

Lena Pereira and others Vs. Mary Boracho and others

Hon'ble Judges/Coram:

B.N. Srikrishna, J.

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