Bombay HC: The court should not frame issue on the point of tenancy if defendant has made a vague pleading in that regard

As frequently this question arises, a little caution is required to be exercised before the Court actually frames such an issue. Under Order 14 of the Code Civil Procedure an issue can only arise when a material proposition of fact or law is affirmed by one party and denied by the other. When a vague plea is made by the defendant contending that is made by the defendant contending that he is a tenant of the land, the Court should hesitate to frame such an issue on such a vague plea, unless the defendant is such able to give particulars showing the time when the tenancy was created, the person by whom it was created and the terms on which it was created. If in spite of such particulars being asked for the defendant is unable to furnish the same, the Court should not raise an issue on a vague plea that he, the defendant, is a tenant of any particular piece of land. Normally the rules of pleadings require that these particulars are the minimum particulars which a man must furnish before he can request the Court to frame an issue as regards the claim made for tenancy. {Para 3}

 IN THE HIGH COURT OF BOMBAY

Civil Revn. Appln. Nos. 492 and 495 of 1972

Decided On: 12.04.1973

Pandu Dhondi Yerudkar and Ors. Vs. Ananda Krishna Patil

Hon'ble Judges/Coram:

R.M. Kantawala, C.J.

Citation: 1974 MHLJ 548, MANU/MH/0179/1975.

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Can the person who has retained or trespassed on land after land acquisition claim tenancy over acquired land?

In the case of Indore Development Authority vs. Manoharlal and others, reported in MANU/SC/0300/2020 : (2020) 8 SCC 129, Apex Court has observed, as under:

"it is apparent that vesting is with possession and the statute has provided under Sections 16 and 17 of the Act of 1894 that once possession is taken, absolute vesting occurred. It is an indefeasible right and vesting is with possession thereafter. The vesting specified under section 16, takes place after various steps, such as, notification under section 4, declaration under section 6, notice under section 9, award under section 11 and then possession. The statutory provision of vesting of property absolutely free from all encumbrances has to be accorded full effect. Not only the possession vests in the State but all other encumbrances are also removed forthwith. The title of the landholder ceases and the state becomes the absolute owner and in possession of the property. Thereafter there is no control of the landowner over the property. He cannot have any animus to take the property and to control it. Even if he has retained the possession or otherwise trespassed upon it after possession has been taken by the State, he is a trespasser and such possession of trespasser ensures for his benefit and on behalf of the owner. After the land has vested in the State, the total control is of the State. Only the State has a right to deal with the same."

In view of aforestated observations, petitioners could not have claimed tenancy through their landlord to justify their possession. Even otherwise, the Suit No. 5204 of 1996 instituted by Mr. Ambroce Creado, against 'Airport Authority' was withdrawn by him on 29th March, 2013. Having considered the evidence, the eviction orders, passed against the petitioners being unauthorised occupants of 'Airport Premises" calls for no interference, in supervisory jurisdiction of this Court under Article 227 of the Constitution of India.

 IN THE HIGH COURT OF BOMBAY

Interim Application Stamp No. 12671 of 2022 in Writ Petition Stamp No. 3715 of 2020, 

Decided On: 06.06.2022

Becharabhai B. Chauhan and Ors.  Vs.  Mumbai International Airport Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:

Sandeep K. Shinde, J.

Citation: MANU/MH/2095/2022

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Whether the court should frame an issue regarding tenancy if the party fails to plead its details?

 Learned counsel for the appellants has relied upon three decisions in support of his contention that a vague plea does not justify an issue being framed. In this connection a reference was made to Ram Sarup Gupta Vs. Bishun Narain Inter College & Others (1987 (2) SCC 555, where the. Court has held that all necessary and material facts should be pleaded by the party in support of the case set up by it. In the absence of pleading, evidence if any produced by the parties cannot be considered. The object and purpose of a pleading is to enable the adversary party to know the case of the opponent. In order to have a fair trial it is imperative that the parties should state the essential material facts so that the other party may not be taken by surprise. The Court has, however, cautioned against a pedantic approach to the problem and has directed that the Court must ascertain the substance of the pleading and not the form, in order to determine the case. The respondent have emphasised latter observations. In the present case, however, no material in support of the plea of tenancy has been set up anywhere in any form. In the case of M/s Nilesh Construction Company & Anr. Vs. M/s Gangubai & Others (AIR 1982 BOMBAY 491), the Court observed that before a reference to the Mamlatdar for deciding the issue of tenancy under the Bombay Tenancy and Agricultural Lands Act, 1948 is made the alleged tenant must disclose in his pleadings, details about the tenancy and the exact nature of the right which is claimed by him. An issue of tenancy cannot be raised on a vague plea.

Supreme Court of India

Shri D.M.Deshpande & Ors vs Shri Janardhan Kashinath Kadam ... on 12 November, 1998

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Whether the tenant can deny that he was a tenant of the plaintiff after accepting his tenancy?

The main emphasis of learned counsel for the petitioner is upon the maintainability of the writ petition. To proceed with to decide this issue, it is necessary to record here that it is undisputed that the petitioner has accepted his tenancy before the prescribed authority as well as appellate authority. It is also undisputed that in capacity of tenant, he has also filed Misc. Case No. 672/70/2014 (Prakash Chandra Gupta Vs. Ritesh Bhargav) under Section 30 of the Act, 1972, which is still pending.

42. It is not the case that petitioner has raised a pure legal issue before the Court. In fact, he had taken a plea accepting the tenancy and contested the case, but after loosing the same before the Prescribed Authority and Appellate Authority taking U-turn, he has taken entirely different plea which was earlier never raised. Apart from that, undisputedly, he is enjoying privilege of tenant by filing Misc. Case No. 672/70/2014 (Prakash Chandra Gupta Vs. Ritesh Bhargav) under Section 30 of the Act, 1972, which is still pending. Therefore, in light of such facts, conduct of the petitioner cannot be appreciated and he can not be permitted to take benefit of his own wrong.

44. In the matter of S.U. Ashram (supra), the Court was also of the same view and held that the objection of the learned counsel for the petitioner is not acceptable only for the reason that he has admitted landlord-tenant relationship in his written statement. The Apex Court in the case of Heeralal (supra) has stated that amendment sought in the written statement was of such nature as to displace the plaintiff's case could not be allowed. In the matter of Nagindas Ramdas (supra), the Apex Court has again taken very same view and held that admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleading or judicial admissions, admissible under Section 58 of the Evidence Act, 1872 made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The Court again in the matter of Thimmappa Rai (supra) has taken the same view relying upon the Section 58 of the Evidence Act, 1872 and held that any admissions made by the party to the suit in earlier proceeding are also admissible against him.

46. After going through the facts of the case and law laid down by the Apex Court as well as this Court, it is very much clear that the petitioner tenant has never disputed tenancy and also filed Misc. Case No. 672/70/2014 (Prakash Chandra Gupta Vs. Ritesh Bhargav), under Section 30 of the Act, 1972 in the capacity of tenant, therefore, he cannot be permitted to take new plea in light of law discussed above and further no denial of tenancy is required by the landlord-respondent in light of Section 58 of the Evidence Act, 1872.

47. Considering the judgments of Apex Court as well as this Court, it is very much clear that petitioner has never raised this issue before the Prescribed Authority or Appellate Authority, where it could be proved by placing evidence whether he is tenant or not, therefore, he cannot be permitted to raise this issue before the High Court in the writ petition. The contention of the learned counsel for the petitioner is also not acceptable that he has raised the issue in the written statement that tenancy is continued from 1960, which was not denied by landlord-respondent in light of Section 58 of Evidence Act. Once the tenancy is accepted, there was no need to landlord to deny the same as the facts admitted need not be proved.

48. Alternative argument of learned counsel for the landlord-respondent is also having force where he has stated that in case petitioner is not the tenant, then he has no authority to maintain this writ petition as he is not the aggrieved person. There is no doubt that once the petitioner is accepting that he is not tenant and his father is tenant then, he has no right to file this writ petition, only his father could invoke this remedy or any other remedy available under the law. Therefore, in that case, this writ petition would not be maintainable in light of law laid down by the Apex Court as well as this Court and the Court cannot grant any relief in favour of petitioner.

IN THE HIGH COURT OF ALLAHABAD

Writ A. No. 20793 of 2019

Decided On: 20.08.2020

Prakash Chandra  Vs.  Ritesh Bhargawa

Hon'ble Judges/Coram:

Neeraj Tiwari, J.

Citation: MANU/UP/1404/2020

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Whether a person can claim tenancy in the immovable property if he was depositing rent in the bank account of the landlord?

Re: Remittances to owner's account (Exs. 64, 65 and 66)

20. Exs. 64 to 66 produced by first Respondent show that he had deposited ` 300, ` 60 and ` 360/- on 19.8.1988, 20.11.1991 and 14.3.1989 to the account of first Appellant with Bank of Karad. The case of the Respondents was that when Laxmibai inducted them as tenants of the suit portions on a monthly rent of ` 25/-; that they used to pay rent to Laxmibai; that after her death, they used to pay rent to the first Appellant; that in 1988, the first Appellant compelled them to increase the rent to ` 60/-; that as both the Appellants were living outside Vita, the first Respondent used to deposit rent in the bank account of the first Appellant with Bank of Karad. The first appellate court held the fact that the amounts were deposited to first Appellant's account showed that the Appellants had given the account number to first Respondent and inferred that the said amounts might have been deposited towards rent.

21. Appellants have given satisfactory explanation. They submitted that the bank account was a non-functional and non-operated account at Vita and as no notice of deposit was given, they were unaware of the deposits. They submitted that Bank of Karad went into liquidation and they therefore did not even have any record of these payments. They argued that as the second Respondent was looking after Laxmibai and as Respondents were also looking after the premises, the Respondents would have come to know about the bank account of the first Appellant and that first Respondent, being aware that one day or the other, the owners will take action to evict them, had deposited the said amounts to create some kind of evidence. It should also be noted that the Respondents did not send any communication informing the Appellants about the deposits to the first Appellant. Nor did the challans showed that the deposits were being made towards rent. These factors when coupled with the following three circumstances show that the deposits were not bonafide: (i) There were no rent receipts from either Laxmibai or from the Appellants; (ii) the Respondents did not choose to send the rents by postal money orders; and (iii) there is no explanation as to non-deposit of the alleged rents for the earlier period. These receipts cannot be relied upon to support the uncorroborated oral testimony of DW-1 (Sadhu) that the same were deposited towards rent.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 8400-8401 of 2011 

Decided On: 30.09.2011

 Dnyaneshwar Ranganath Bhandare  Vs. Sadhu Dadu Shettigar (Shetty)

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How to appreciate evidence if the plaintiff is pleading that defendant is gratuitous licensee and defendant is alleging that he is the tenant?

Two suits were tried together. In both the suits (suit for possession filed by the Appellants, and suit for permanent injunction filed by the first Respondent), the trial court framed issues placing the burden on both the Plaintiff and Defendants. The Appellants were required to prove whether the suit portions were given to second Respondent as a gratuitous licensee. The Respondents were required to prove that they were in occupation from 1982 as tenants, initially by paying ` 25/- per month as rent up to 1988 and thereafter at the rate of ` 60/- per month. These issues were proper as it was evident from the pleadings that Respondents were in possession of suit rooms, and Appellants claimed that the Respondents were licensees and Respondents claimed that they were tenants, but admitted that there was no document evidencing tenancy/lease or payment of rent. The entire evidence was analysed in detail by the trial court, leading to the findings that the Respondents were in occupation of the suit portions as gratuitous licensees and the Respondents failed to prove that they were tenants paying rent. In appeals filed by the Respondents, the court wrongly shifted the entire burden of proof on the Appellants and held that the Appellants had failed to prove that Respondents were gratuitous licensees and consequently dismissed the suit for possession filed by the Appellants. As noticed above, admittedly there was no lease deed or tenancy agreement to evidence the tenancy; nor were there any receipts for payment of any rent. The first Appellant had given evidence on oath that Respondents were gratuitous licensees and they had never paid any rent or other charges and his evidence was corroborated by a neighbour (PW2). In the circumstances, the burden was on the occupants (respondents) to establish that they were tenants and not licensees. But the first appellate court chose to wrongly place the burden upon the Appellants. The first appellate court failed to record any finding that the Respondents were the tenants. The documents produced by the Respondents which merely showed their possession were wrongly interpreted to hold that the Appellants failed to prove that Respondents were gratuitous tenants.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 8400-8401 of 2011 

Decided On: 30.09.2011

 Dnyaneshwar Ranganath Bhandare  Vs. Sadhu Dadu Shettigar (Shetty)

Hon'ble Judges/Coram:

R.V. Raveendran and A.K. Patnaik, JJ.

Citation: (2011) 10 SCC 433,MANU/SC/1135/2011

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Whether a person can take an alternative plea of adverse possession and tenancy?

Once a person takes the stand that he/she has become the owner of a property on the ground of adverse possession, then he/she could not subsequently take the alternative plea that a suit for eviction was not maintainable and that the provisions of the  Rent Control Act, would apply. The Court held that a plea of adverse possession would be destructive of the rights under the Rent Act.

 Now though the appellant in his communications of June 2008 to the Monitoring Committee has alleged himself to be a tenant of this were premises but in para 15 and 22 of his written statement has denied such relationship and alleged himself to be an owner by adverse possession. Thus once the appellant claims to be in adverse possession of the premises, he cannot alleged himself to be a tenant as both these pleas cannot exist together. The principle once a tenant always a tenant ends on taking plea of adverse possession and asserting one's own right.

IN THE HIGH COURT OF DELHI

RFA 633/2014

Decided On: 09.01.2020

 Hans Raj Vs.  Raghuvir Singh and Ors.

Hon'ble Judges/Coram:

Yogesh Khanna, J.

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How to ascertain when tenant should pay rent to landlord in absence of lease deed?

 The next contention of Learned Counsel for the Defendant was that the rent was payable on demand. Evidently no Lease Deed existed between the parties. The Plaintiff could furnish no document to establish that the rent was payable by the 10th of the succeeding month, similarly the Defendant was not in possession of any document to prove that rent was payable on demand. In the absence of such a document it is relevant to resort to the provisions of Section 106 of the Transfer of Property Act, 1882 (hereinafter "the TP Act"), which inter alia provides that in the absence of a contract or local law or usage to the contract, a lease of immovable property shall be deemed to be a lease from month to month terminable on the part of either a lesser or lessee by fifteen days" notice. I hasten to add that the Act of 1956 envisages no notice for eviction of a tenant, it merely requires proof of default in rent for four months or more hence Notice is not a mandate under the Act of 1956. Therefore, on applying the provisions of Section 106 of the TP Act it is evident that the tenancy shall be presumed to be a tenancy on a month to month basis. In this view of the matter, irrespective of lack of demand for payment of rent by the Plaintiff to the Defendant, it became incumbent upon the Defendant to pay the rent either at the end of the month or by the next month as was the practice, even if it was beyond the 10th of the next month. 

IN THE HIGH COURT OF SIKKIM AT GANGTOK

RFA No. 10 of 2016

Decided On: 01.10.2018

 Taramani Devi Agarwal Vs.  Krishna Company

Hon'ble Judges/Coram:

Meenakshi Madan Rai, Actg. C.J.

Citation: 2019(1) RCR(Rent) 38

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Whether occupant of structure would be entitled to claim tenancy in respect of land underneath structure?

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

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

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Whether acceptance of money equal to rent after determination of tenancy amounts to creation of new tenancy?

 In Ganga Dutt Murarka v. Kartik Chandra Das, this Court held that where a contractual tenancy, to which rent control legislation applied, had expired by efflux of time or by determination by notice to quit and the tenant continued in possession of the premises, acceptance of rent from the tenant by the landlord after the expiration or determination of the contractual tenancy will not afford ground for holding that the landlord had assented to a new contractual tenancy. It was further held that acceptance by the landlord from the tenant, after the contractual tenancy had expired, of amounts equivalent to rent, or amounts which were fixed as standard rent, did not amount to acceptance of rent from a lessee within the meaning of Section 116 of the Transfer of Property Act.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1546 of 1969

Decided On: 14.12.1971

Bhawanji Lakhamshi  Vs. Himatlal Jamnadas Dani and Ors.

Hon'ble Judges/Coram:

C.A. Vaidialingam and K.K. Mathew, JJ.

Citation:(1972) 1 SCC 388

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Whether new tenancy can be created by compromise in suit?

In present facts, it is to be noted that the period for vacation as envisaged in the compromise decree is of 15 years. Rent has been specified to be Rs. 900/- and period of one year has also been specified as from Diwali to Diwali. The Suit as filed was for eviction of licensee on the ground that the original plaintiff had purchased the property from him and defence of licensee was that he had not executed any sale deed in favour of the plaintiffs. He had pleaded that sale document was only a nominal agreement entered into to avoid liabilities of other partners. It is in this backdrop that the compromise needs to be interpreted. The background in which the Hon'ble Apex Court in its various judgments interpreted the compromise decrees are already mentioned above, and it is clear that as such the facts of each case are determinative to find out the application or otherwise of Rent Control protection. Coming to the present controversy, the petitioners' claim in the suit itself was that the original defendant-Badrinarayan was licensee and as he had started picking up quarrels with the plaintiffs, the relations between the parties had deteriorated. Decree for his eviction was therefore sought in Suit. The grant of period of 15 years and the conditions mentioned above, therefore leave no manner of doubt that the parties entered into a compromise but real intention was to permit Badrinarayan to occupy the premises by paying charges therefore i.e. as tenant. Relevant definitions of Tenant, Landlord in Rent Control Order are considered by the trial Court in its judgment and there is no dispute about correctness of the said consideration. The question argued is only about the interpretation and effect of the compromise deed. The use of word 'rent' as appearing in the compromise deed therefore, has been high-lightened by the trial Court. Grant of period of 15 years to a licensee to vacate with whom the relations were strained clearly militates with arguments of petitioners before me. Badrinarayan only withdrew his claim to title of suit property and never agreed to vacate immediately. He was not given time to vacate but as per Clause 4 he got right to occupy and use the premises for limited period of 15 years against obligation to pay annual rent. His 3 defaults in paying rent enabled the landlord to recover the possession by executing the decree. But then except for this clause, there is no other clause entitling landlord to immediate possession. His late payment of rent entitled landlord to charge interest. Similarly his failure to vacate at the end of 15 years enabled landlord to recover damages at 5% per day for alleged unauthorised user. It appears that the defendant/judgment debtor was free also to erect permanent structure but ultimately it was to go to plaintiffs after Diwali of 1987. Thus the compromise nowhere records declaration of Badrinarayan to forthwith vacate or that time of 15 years was given to him to vacate. On the contrary it grants and records right of Badrinarayan to use and occupy for 15 years. The compromise appears to be part of few other suits and resolution of some other disputes between parties but then in this situation, petitioners ought to have brought on record the need of such type of arrangement. Compromise did/does not grant any concession to deceased Badrinarayan and it can not therefore be said that he got time of 15 years to vacate. It accepted his right to continue in occupation subject to payment of charges therefore and then introduces time-limit of 15 years. The compromise dated 12/9/1972 therefore has the effect of and created a tenancy at least for 15 years.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Writ Petition No. 3710 of 2005

Decided On: 19.12.2008

 Ramdayal Gulabachand Khandelwal   Vs.Mahendra Badrinarayan Khandelwal 

Hon'ble Judges/Coram:

B.P. Dharmadhikari, J.

Citation: 2009(2) ALLMR 163,2009(2) MHLJ 782

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Whether eviction suit filed by one of co-owner is maintainable if some of co-owners had given assent for continuance of tenancy?

Tenancy - Eviction suit - Maintainability of - Bihar Building (Lease, Rent and Eviction) Control Act, 1982 - Present application filed for challenging order of eviction, on ground that eviction suit by some co - owners was not maintainable because other co - owners had given assent for continuance of tenancy - Whether suit for eviction brought by some of co-owners for ejectment of tenant who had incurred liability to be evicted under Act was maintainable - Held, cleared from fact that lease was determined and it was not renewed by Plaintiffs for further period - However, one of co- owners had given his assent to Defendant to continue his possession over suit premises - Appeared that contract for tenancy was one and it was by-lateral contract between parties - One of co-owners had no right to make contract unilateral by splitting interest of other co-owners - Thus, some of co-owners had every right to file suit for evicting tenant who had incurred liability to be evicted under Act - Therefore, suit brought by Plaintiffs was maintainable - Application dismissed. [paras 9 and 11]

IN THE HIGH COURT OF JHARKHAND

Civil Revision No. 20 of 2008

Decided On: 16.04.2014

Shyamdeo Prasad Vs.  Quurban Hussain Hawari

Hon'ble Judges/Coram:

Dhrub Narayan Upadhyay, J.

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When burden of proof is on defendant to prove that he is tenant?

 The entire case of the appellant is based on the proposition that as he was occupying the suit premises since 1979, it was with the permission of the landlord and as he was allowed to stay on the suit premises, so it is to be inferred that rent was paid by him and accepted by the landlord. It is contended that the appellant has proved that he is a tenant then ground of encroachment as pleaded by the plaintiff goes away and the plaintiff has no right to claim possession on the ground of encroachment and so no relief either of perpetual injunction or mandatory injunction or possession can be granted in favour of the appellant. Thus, foundation of the case of the appellant is that he is a tenant of the respondent. This fundamental fact is required to be proved. Question is whether this fact can be proved in the absence of any documentary or sufficient oral evidence?

13. Admittedly, no documentary evidence either of rent receipt or any agreement is produced by the appellant in both the suits. The appellant tried to prove this fact with the help of these three witnesses. However, he did not mention anything about obtaining the suit property with the help of any middle-man. Had this suit property been obtained with the help of Mr. Bhandilkar, then this fact ought to have been mentioned by the appellant in the written statement. Oral evidence should pass a test of credibility. It is expected that party should take a consistent stand to build up his case from the initial stage of the suit. Admittedly, the respondent had let out few shops or premises near the suit premises, to other persons. However, that evidence will not establish the fact that therefore the suit premises was also let out to the appellant by the respondent-landlord. The fact of possession is not challenged as there is a prayer of the possession and relief to that extent is prayed by the plaintiff. Thus, the fact that the appellant is in possession of the suit property since 1979 is itself not helpful to the appellant to establish tenancy. Long possession or even permissive long possession cannot itself establish a person is a tenant of the landlord. It can be only said that he was allowed to stay or remain on the suit property for some period and for that period, his possession was tolerated and therefore he cannot be labelled as an encroacher for that period. As soon as a permission is withdrawn, the status of an occupant is converted into an encroacher. Thus, in the absence of any tenancy, no legal right is created in favour of the appellant against the respondent.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 504 of 1991, 

Decided On: 05.10.2012

Pandurang Dharma Gaikwad  Vs. Mahamudmuya Ahmadsaheb Patil

Hon'ble Judges/Coram:

Mrs. Mridula Bhatkar, J.

Citation: 2013(2) MHLJ 949

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Whether tenant can offer his services in lieu of rent?

Shri Godbole submitted that the tenant is not necessarily required to pay a rent in money and can be permitted to pay it in kind. He specifically referred section 105 of the Transfer of Property Act, whereunder in a lease of immovable property a service rendered can be the consideration for the lease. He drew my attention to the fact that it was the understanding between the parties that apart from his service in the School, Hasan Jahagirdar was to look after the Hostel. Shri Godbole submitted that this service was the consideration for the tenancy. Shri Godbole, therefore, submitted that the premises occupied by Hasan Jahagirdar were covered under the Bombay Rent Act and the first respondent landlord was required to take action under the provisions of that Act only and could not file a civil suit to evict Hasan Jahagirdar and his family members from the suit premises.

Shri Jamdar drew my attention to the judgment of Hon'ble Supreme Court in the case of Dipak Banerjee v. Lilabati Chakraborty, reported in MANU/SC/0752/1987 : [1987]3SCR680 , wherein the question before the Supreme Court was as to whether the sewing activity can be considered to be the rent paid in kind and in a para 10, the Hon'ble Supreme Court in terms held that under the provisions of the particular Rent Act, service cannot be a consideration for sub-lease is the question. The Court observed "It is however, not possible to accept that services in lieu of the right of occupation would amount to receipt of rent... This frustrates and defeats the purpose of the Rent Act".

 Shri Jamdar took me through the provisions of the Rent Act and particularly the provisions regarding fixation of the standard rent, arrears of rent, additions to the rent etc., and submitted that if any such interpretation is accepted, a number of provisions of the Act would become redundant and in that context he drew my attention to the observations of the Supreme Court in the case of M/s. Alphali Pharmaceuticals Ltd. v. State of Maharashtra and others, reported in : 1989 (44) ELT 613 (SC) , that the provisions should be so construed in the context of the Act that no word of the statute is rendered redundant, superfluous or meaningless. There need not be two views on what Shri Jamdar canvassed. The provisions of the Rent Act are quite clear. If one looks into a number of provisions contained in the Act, it is very clear that the rent has to be paid through money. If that was not so in number of provisions of the Act relating to the arrears of rent, additions to the rent, standard rent etc., would become redundant. The notice to be given by the landlord to the tenant calling upon him to pay the rent has also to be for payment in money and it cannot be in service. Under these circumstances, the submission of Shri Jamdar, is required to be accepted that the provisions of section 105 of the Transfer of Property Act, cannot be invoked for urban residential tenancy which are specifically covered under the Acts of the tenancy such as Bombay Rent Act.

6. In the circumstances, stated above, it is very clear that Hasan Jahagirdar was not required to pay any rent per month and was not a tenant of the first respondent institution. His occupation was at the highest a personal privilege of occupation and not tenancy. 

IN THE HIGH COURT OF BOMBAY

S.A. No. 758 of 1997

Decided On: 12.07.1999

Chinnupashabi  Vs.  Fatesingh Sikshan Sanstha and Ors.

Hon'ble Judges/Coram:

H.L. Gokhale, J.

Citation: 1999 (4) ALL MR 405

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Whether it can be inferred that new tenancy is created if second quit notice is issued?

 In the judgment rendered by Orissa High Court in Bhagabat Patnaik vs. Madhusudhan Panda, Section 113 has been interpreted to hold that since a valid notice to quit a lease or to determine a tenancy cannot be waived without the assent of the Landlord and the tenant both, the question as to whether such consent can be implied by acceptance of rent by the Landlord depends on the facts and circumstances of the case. An English Authority in Lawenthanfal vs. Banhoute 1947 (1) All England Law Report, page 116 was quoted to say that a new tenancy cannot be inferred on the issuance of second notice. It is in this context that it was observed that "a subsequent notice to quit is of no effect." It was held that a tenancy is not revived by anything short of a new tenancy and in order to create a new tenancy there must be an express or implied agreement to that effect.

26. The mere fact that the tenant continues in possession and rent is accepted and the suit is not instituted are insufficient circumstances for inferring an intention to create a new tenancy after expiration of the first. An english commentary "Landlord and Tenant", was quoted by the High Court thus:

"Generally speaking, giving a second notice to quit does not amount to a waiver of a notice previously given unless, with other circumstances, it is the basis for inferring an intention to create a new tenancy after the expiration of the first."

27. To the same effect are the decisions of the Punjab & Haryana High Court in Shiv Jeet Singh vs. Charan Singh (supra) and Bombay High Court in Nanaji Gajanan Upganlawar vs. Shabbir Husain Fida Hussain (supra). The illustrations to Section 113 of the Transfer of Property Act were considered and it was observed that merely because a second notice was given, the first notice cannot be deemed to have been waived. To create a new tenancy, there must be an express or an implied agreement to that effect, and such agreement cannot be unilateral. It has to be bilaterally agreed between the tenant and the landlord for extension of lease.

28. This High Court in Post Master General vs. District Judge (supra) and Waqf Allal Aulad (supra) has observed that the tenancy would stand terminated on the expiry of the notice period. The Landlord would be justified in receiving the rent for the notice period from the date of service of notice. But merely acceptance of such rent could not be treated as an implied or express consent to treat the lease/tenancy as subsisting on the part of the Landlord. If the Rent Control Act does not apply, then the tenant is liable to be simply evicted after termination of tenancy default or no default in payment of rent, it is wholly immaterial.

29. In a Full Bench decision in Gokaran Singh vs. 1st Additional District Judge (2000) 40, ALR 405, this Court had observed that even if Rent Control Act applies and in the notice a wrong period of default and a wrong rate of rent is mentioned, still notice does not become invalid.

30. In the facts and circumstances of the case as have been referred to in the impugned judgment dated 01.10.2011, the Trial Court has treated the First Notice dated 10/20.02.1998 as subsisting because the Landlord did not file the suit for ejectment in pursuance of the first notice but gave a second notice and then filed the suit. The learned Trial Court has observed that the second notice given again was an invalid notice, the suit for ejectment based thereon was liable to be rejected and has rejected the same.

31. This kind of reasoning can only be said to be perverse. In Swaroop Singh Gupta vs. S. Gagdish Singh (supra) the Supreme Court has observed that mere acceptance of rent for the period in between the issuance of two notices to vacate would not itself constitute an act on the part of the Landlord showing an evidence to treat the lease as subsisting. The fact remains that even after accepting the rent tendered the landlord filed a suit for eviction. It cannot therefore be said that by accepting the rent he intended to waive the notice and to treat the lease as subsisting. The second notice after which the suit was filed for ejectment was not treated as illegal by the Supreme Court only because the first notice to quit was held as determining the tenancy without creating a new tenancy, by the act of the Landlord to accept the rent in the meantime.

IN THE HIGH COURT OF ALLAHABAD

Civil Revision No. 564 of 2011

Decided On: 22.11.2018

Praveen Kumar Jain Vs.  Jagdish Prasad Gupta and Ors.

Hon'ble Judges/Coram:

Sangeeta Chandra, J.

Citation:  2019 (132) ALR 357

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Whether tenancy will come to end if agreement of sale is executed between landlord and tenant?

 As observed supra, such is not the case here
because we do not find any such clause or a clause
akin thereto in the agreement dated 13.05.1993 and
nor we find that the existing conditions in the
agreement discern the intention of the parties to
surrender the tenancy agreement either expressly or
impliedly.
38. In the light of the foregoing discussion, we are
of the considered opinion that the tenancy in
question between the parties did not result in its
determination as contemplated under Section 111
of TP Act due to execution of the agreement dated
13.05.1993 between the parties for sale of the suit
house and the same remained unaffected

notwithstanding execution of the agreement dated
13.05.1993
39. A fortiori, the respondent (lessor) was rightly
held entitled to file an application against the
appellant (lessee) under Section 21 (1) (a) of the UP
Act and seek the appellant's eviction from the suit
house after determining the tenancy in question.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos. 12371238
OF 2019

Dr. H.K. Sharma Vs  Shri Ram Lal 

Dated:January 28, 2019.
Abhay Manohar Sapre, J.
Citation: 2019(1) RCR(Rent) 227 SC

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Whether small cause court has jurisdiction to try suit if tenancy is determined?

 In other words, whether it is a suit between the
licensor and the licensee or between the landlord
and the tenant, such types of suits fall under
Section 41 of the Small Cause Courts Act and are,

therefore, cognizable by the Courts of Small Causes,
Bombay.
30) This takes us to deal with the next argument
of Mr. Naphade, learned senior counsel for the
appellants that once the tenancy is determined such
suits would not come within the purview of Section
41 of the Small Cause Courts Act. This argument
was rejected by the Division Bench and, in our view,
rightly by placing reliance on the law laid down by
the Bombay High Court in the case of Nagin
Mansukhlal Dagli vs. Haribhai Manibhai Patel
(AIR 1980 Bombay 123) (Para 8 of the said decision
quoted in the impugned order). We approve the law
laid down by the Bombay High Court in the case of
Nagin Mansukhlal Dagli (supra) as laying down the
correct principle of law.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.57535754
OF 2011

Mahadev P Kambekar Vs Shree Krishna Woolen Mills Pvt. Ltd. 
Dated:January 31, 2019

Abhay Manohar Sapre, J.
Citation: 2019(1) RCR(Rent) 273 SC,2020(1) MHLJ 157

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What will be consequences of non registration of lease deed?

 It is also a well settled position of law that in the absence of a registered instrument, the courts are not precluded from determining the factum of tenancy from the other evidence on record as well as the conduct of the parties. A three Judge bench of this Court in the case of Anthony v. KC Ittoop and Sons MANU/SC/0443/2000 : (2000) 6 SCC 394, held as under:

A lease of immovable property is defined in Section 105 of the TP Act. A transfer of a right to enjoy a property in consideration of a price paid or promised to be rendered periodically or on specified occasions is the basic fabric for a valid lease. The provision says that such a transfer can be made expressly or by implication. Once there is such a transfer of right to enjoy the property a lease stands created. What is mentioned in the three paragraphs of the first part of Section 107 of the TP Act are only the different modes of how leases are created. The first paragraph has been extracted above and it deals with the mode of creating the particular kinds of leases mentioned therein. The third paragraph can be read along with the above as it contains a condition to be complied with if the parties choose to create a lease as per a registered instrument mentioned therein. All other leases, if created, necessarily fall within the ambit of the second paragraph. Thus, dehors the instrument parties can create a lease as envisaged in the second paragraph of Section 107 which reads thus.........

When lease is a transfer of a right to enjoy the property and such transfer can be made expressly or by implication, the mere fact that an unregistered instrument came into existence would not stand in the way of the court to determine whether there was in fact a lease otherwise than through such deed.

Taking a different view would be contrary to the reality when parties clearly intended to create a lease though the document which they executed had not gone into the processes of registration. That lacuna had affected the validity of the document, but what had happened between the parties in respect of the property became a reality. Non registration of the document had caused only two consequences. One is that no lease exceeding one year was created. Second is that the instrument became useless so far as creation of the lease is concerned. Nonetheless the presumption that a lease not exceeding one year stood created by conduct of parties remains un-rebutted.

(Emphasis laid by this Court)

Thus, in the absence of registration of a document, what is deemed to be created is a month to month tenancy, the termination of which is governed by Section 106 of the Act.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 8361 of 2016 

Decided On: 29.08.2016

 Park Street Properties (Pvt.) Ltd. Vs.  Dipak Kumar Singh and Ors.

Hon'ble Judges/Coram:

V. Gopala Gowda and A.K. Goel, JJ.

Citation: (2016) 9 SCC 268

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Whether new tenancy will be created if second quit notice is issued after issuance of first quit notice?

An English Authority in Lawenthanfal vs. Banhoute 1947 (1) All England Law Report, page 116 was quoted to say that a new tenancy cannot be inferred on the issuance of second notice. It is in this context that it was observed that ''a subsequent notice to quit is of no effect." It was held that a tenancy is not revived by anything short of a new tenancy and in order to create a new tenancy there must be an express or implied agreement to that effect. 

An English commentary "Landlord and Tenant", was quoted by the High Court thus: 

"Generally speaking, giving a second notice to quit does not amount to a waiver of a notice previously given unless, with other circumstances, it is the basis for inferring an intention to create a new tenancy after the expiration of the first." 

To the same effect are the decisions of the Punjab & Haryana High Court in Shiv Jeet Singh vs. Charan Singh (supra) and Bombay High Court in Nanaji Gajanan Upganlawar vs. Shabbir Husain Fida Hussain (supra). The illustrations to Section 113 of the Transfer of Property Act were considered and it was observed that merely because a second notice was given, the first notice cannot be deemed to have been waived. To create a new tenancy, there must be an express or an implied agreement to that effect, and such agreement cannot be unilateral. It has to be bilaterally agreed between the tenant and the landlord for extension of lease. 

28. This High Court in Post Master General vs. District Judge (supra) and Waqf Allal Aulad (supra) has observed that the tenancy would stand terminated on the expiry of the notice period. The Landlord would be justified in receiving the rent for the notice period from the date of service of notice. But merely acceptance of such rent could not be treated as an implied or express consent to treat the lease / tenancy as subsisting on the part of the Landlord. If the Rent Control Act does not apply, then the tenant is liable to be simply evicted after termination of tenancy default or no default in payment of rent, it is wholly immaterial. 

29. In a Full Bench decision in Gokaran Singh vs. 1st Additional District Judge (2000) 40, ALR 405, this Court had observed that even if Rent Control Act applies and in the notice a wrong period of default and a wrong rate of rent is mentioned, still notice does not become invalid. 

30. In the facts and circumstances of the case as have been referred to in the impugned judgment dated 01.10.2011, the Trial Court has treated the First Notice dated 10/20.02.1998 as subsisting because the Landlord did not file the suit for ejectment in pursuance of the first notice but gave a second notice and then filed the suit. The learned Trial Court has observed that the second notice given again was an invalid notice, the suit for ejectment based thereon was liable to be rejected and has rejected the same. 

31. This kind of reasoning can only be said to be perverse. In Swaroop Singh Gupta vs. S. Gagdish Singh (supra) the Supreme Court has observed that mere acceptance of rent for the period in between the issuance of two notices to vacate would not itself constitute an act on the part of the Landlord showing an evidence to treat the lease as subsisting. The fact remains that even after accepting the rent tendered the landlord filed a suit for eviction. It cannot therefore be said that by accepting the rent he intended to waive the notice and to treat the lease as subsisting. The second notice after which the suit was filed for ejectment was not treated as illegal by the Supreme Court only because the first notice to quit was held as determining the tenancy without creating a new tenancy, by the act of the Landlord to accept the rent in the meantime. 

ALLAHABAD HIGH COURT

Delivered On :22.11.2018 

CIVIL REVISION No. - 564 of 2011 

Praveen Kumar Jain Vs Jagdish Prasad Gupta 

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Whether there will be implied surrender of tenancy on execution of mortgage deed?

 In the facts of the present case, admittedly, there is no mention of the alleged tenancy in the mortgage deed. Moreover, the mortgage deed was admittedly for a fixed term of five years. The liability to pay rent was not kept alive and the right was given to consider it as a sale-deed, if the Respondent was unable to redeem the mortgage within stipulated period of 5 years. Therefore, the terms and conditions of the mortgage deed clearly spell out the implied surrender of the tenancy. Hence, as held in this judgment of Tarachand V/s. Sagarbai Alias Chaiyalibai (supra), assuming that the Appellant was in possession of the suit premises as a tenant, in view of the implied surrender of tenancy on execution of the mortgage deed, on redemption of mortgage the Respondent becomes entitled to get possession of the suit property. The Respondent-landlord was therefore not required to proceed against the Appellant under the provisions of Rent Control statute to recover the possession. Therefore, having surrendered his tenancy may be impliedly, the Appellant cannot retain his possession. Hence, on this ground also, the judgment and decree passed by the trial Court and confirmed by the Appellate Court does not call for any interference.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 265 of 1991 and Civil Application No. 1225 of 2017

Decided On: 27.06.2018

 Nivruti Dnyanu Patil Vs. Shankar Krishna Bhagat-Patil and Ors.

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation: 2018(6) MHLJ 167

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